C. R. Cummings & Co. v. Masterson

• Decision Date: 11 April 1906
• Citation: 93 S.W. 500
• Court: Texas Court of Appeals
• Parties: C. R. CUMMINGS & CO. et al. v. MASTERSON et al.<SMALL><SUP>*</SUP></SMALL>

93 S.W. 500

C. R. CUMMINGS & CO. et al. v. MASTERSON et al.^*

Court of Civil Appeals of Texas.

April 11, 1906.

Rehearing Denied May 9, 1906.

Error from District Court, Harris County; Norman G. Kittrell, Judge.

Action by H. Masterson and others against C. R. Cummings and others. There was a judgment for the plaintiffs, and defendants bring error. Modified and affirmed.

Coleman & Abbott and Hutcheson, Campbell & Hutcheson, for plaintiffs in error. H. & A. R. Masterson, for defendants in error.

NEILL, J.

This suit was brought by the defendant in error, H. Masterson, in the form of an action of trespass to try title, plaintiffs' chain of title being specifically pleaded, against the defendants in error, William Rankin, I. R. McCasland, James A. Breeding, Edward M. Bond, and the unknown heirs of Edward M. Bond, and against C. R. Cummings & Co., a firm composed of C. R. Cummings and Emile Gardner and Jeremiah W. Towler (who are of the plaintiffs in error), the C. R. Cummings Lumber Company, Andrew J. Yates, and the unknown heirs of Andrew J. Yates, to recover 1000 acres of land off the south end of the David Harris league, situated on San Jacinto river, in Harris county, Tex., and also, as against C. R. Cummings & Co. and Jeremiah H. Towler, to recover the value of timber from said land and appropriated by them. A quantity of timber, so alleged taken and appropriated, was seized by the sheriff under a writ of sequestration issued at the instance of plaintiff which was replevied by said defendants. By an amended petition, these matters were averred, and judgment asked against them and the sureties on their replevy bond for the value of the timber sequestrated. The defendants J. W. Towler, C. R. Cummings, and Emile Gardner, composing the firm of C. R. Cummings & Co., answered by general demurrers and pleas of not guilty. Edward M. Bond, by his attorney of record, and the unknown heirs of Edward M. Bond, by the attorney appointed by the court to represent them, after having been duly cited by publication, answered alleging facts which showed they had no title to the land, and disclaimed any title, claim, or interest therein. The defendants James A. Breeding, William Rankin, I. R. McCasland, and Walter Harris each and all answered by disclaiming any interest in the land. It does not appear from the record that any answer was filed from Andrew J. Yates, or for the unknown heirs of Andrew J. Yates. The plaintiffs discontinued the case as to Walter Harris, the C. R. Cummings Lumber Company (the corporation sued by that name), Andrew J. Yates, and the unknown heirs of Andrew J. Yates. The case was tried by the court without a jury, who, after hearing the evidence, rendered judgment in favor of plaintiff, Masterson, against the defendants Edward M. Bond the unknown heirs of Edward M. Bond, William Rankin, I. R. McCasland, James R. Breeding, Jeremiah W. Towler, and C. R. Cummings & Co., for title and possession of the 1,000 acres of land sued for. Judgment was also rendered for plaintiff against Jeremiah W. Towler, the firm of C. R. Cummings & Co., and C. R. Cummings, as a member of said firm, jointly and severally, for the sum of $8,250, the value of plaintiffs' timber cut and taken from said land and converted by said defendants. Of the timber, for the value of which this judgment was rendered, a portion was seized by writs of sequestration sued out by plaintiff and replevied by C. R. Cummings & Co., by filing a replevin bond with W. T. Torry and F. A. Heitmann, as sureties, conditioned as required by law, payable to plaintiffs in the sum of $8,000, which portion, so seized and replevied, the trial court found from the evidence was of the value of $3,850, and entered judgment on said replevy bond against C. R. Cummings & Co., as principals and W. T. Torry and F. A. Heitmann as sureties for such value, the judgment providing that when paid or collected it shall be credited on the judgment for $8,250, etc. From the entire judgment the defendants J. W. Towler, C. R. Cummings & Co., C. R. Cummings, and W. T. Torry and F. A. Heitmann, the sureties on said replevy bond, have sued out this writ of error.

Conclusions of Fact.

The evidence establishes that one David Harris obtained a grant from the government of Mexico of a league of land, of which the premises in controversy are a part, as a colonist in Austin's Colony, dated August 19, 1824, which is situated on the San Jacinto river in Harris county, Tex.; that on May 9, 1825, David Harris conveyed the league to Frederick H. Rankin; that Fredericl H Rankin, on March 31, 1828, conveyed it to James E. B. Austin; and that the heirs of James E. B. Austin conveyed the 1000-acre tract in controversy to the plaintiff, H. Masterson, who is and was prior to the institution of this suit the owner thereof. No title whatever was shown in any of defendants. The defendant Jeremiah W. Towler, who as a trespasser entered upon plaintiffs' land in January, 1904, wrongfully cut a large number of pine trees and some cypress and ash, which he sold and delivered to C. R. Cummings & Co., worth in the log at $6.50 per thousand feet for pine, and $12 per thousand feet for cypress and ash, which were reasonably worth the sum of $8,250. Of the timber so unlawfully cut and taken from the land by Towler and received and appropriated by Cummings & Co., 3600 logs, of the value of $1.69½ each, at date of judgment and of the aggregate value of $3,850, were seized by the sheriff by virtue of a writ of sequestration issued in the case and were replevied by C. R. Cummings & Co., by giving bond for $8,000 in accordance with statute, with W. T. Torry and F. A. Heitmann as sureties, which were reasonably worth $3,850 at the time of trial. That when Cummings & Co., received said timber and converted it to their use they knew or were charged with knowledge of the fact, that it was wrongfully cut and taken by Towler from plaintiffs' land.

Conclusions of Law.

1. The first, second, third, fourth, fifth, and sixth assignments of error are disposed of by our conclusions of fact, by which it appears that the plaintiff owns and holds the land in controversy under a regular chain of title from the sovereignty of the soil down to himself. Therefore the two propositions asserted under these assignments, though abstract principles of law, are inapplicable to this case.

2. It is assumed by the seventh assignment of error that if plaintiff showed any title to the land in controversy, it was only to an undivided interest. This assumption is, then, made the basis for these propositions: (1) "Plaintiff cannot recover for entire value of timber, unless he is the owner of the entire title to the land from which it is claimed the timber was cut." (2) "One co-tenant, or joint owner, cannot recover damages to joint property without joining his cotenants, or joint owner, in the suit." Our conclusions of fact show that there is no basis for the application of the principle enunciated by the propositions to rest upon in this case. While it is the well-settled rule that tenants in common, must join in actions of trespass quare clausum fregit, yet it is equally well settled that the nonjoinder of a co-tenant, can, in general, only be taken advantage of by a plea in abatement, or by way of apportionment of the damages, on the trial. May v. Slade, 24 Tex. 205; G., C. & S. F. Ry. v. Foster (Tex. Civ. App.) 44 S. W. 200. Besides in trespass quare clausum fregit the plea of not guilty operates as a denial that the defendant committed the trespass alleged in the place mentioned, but not as a denial of the...