Cahill v. Benson

• Decision Date: 02 April 1898
• Citation: 46 S.W. 888
• Court: Texas Court of Appeals
• Parties: CAHILL v. BENSON et al.<SMALL><SUP>1</SUP></SMALL>

46 S.W. 888

CAHILL v. BENSON et al.¹

Court of Civil Appeals of Texas.

April 2, 1898.

Appeal from district court, Dallas county; Edward Gray, Judge.

Action by Patrick Cahill against C. H. Benson and others. There was a judgment for defendants, and plaintiff appeals. Affirmed.

We take the following general statement of the case, with some corrections, from appellant's brief, as it is believed to be sufficiently accurate to serve the purposes designed for it: This is the second appeal in this case. On January 10, 1894, appellant, Patrick Cahill, brought suit in the district court of Dallas county, Tex., in trespass to try title, against C. H. Benson, Isaac Benson, Robert N. Merritt, Jim Baker, George Brown, Joel Wood, T. K. Flowers, and their respective wives (whose names are immaterial on this appeal), to recover 300 acres of land in the J. M. Hamilton survey, in Dallas county, damages, and rents. J. T. Flowers had previously conveyed his interest in the property to defendant Merritt. Afterwards J. T. Flowers died, and he and his wife were dismissed from the suit. On May 10, 1895, on verdict of a jury, judgment was rendered in favor of plaintiff for the land, without rents or damages, and in favor of defendants C. H. Benson, Isaac Benson, Robert N. Merritt, George Brown, and T. K. Flowers, jointly, for $4,035, for improvements in good faith. Defendants appealed, and plaintiff filed cross assignments of error. On May 23, 1896, the appeal was decided by this court, the judgment below affirmed as to title, and, on cross assignments of error, reversed and remanded on the issue of improvements in good faith. Benson v. Cahill, 37 S. W. 1088. The supreme court having refused the then appellants' application for writ of error, a mandate was issued and filed in the court below on November 18, 1896. On December 18, 1896, plaintiff sued out a writ of sequestration, which was levied January 2, 1897, on all the land except a tract of 30.15 acres in the possession of the defendant George Brown, as lessee of defendant C. H. Benson (plaintiff having ratified the lease by agreement of all parties), and also except another tract of 100 acres in the possession of defendant Merritt, which he had rented from plaintiff, Cahill, for the season of 1897, after the judgment on appeal. Defendants failing to replevy, plaintiff gave the statutory replevy bond on February 15, 1897, and the property sequestrated was placed in the possession of plaintiff, who thus obtained possession of all the land through the sequestration proceedings, and through defendants Brown and Merritt attorning to plaintiff, as his tenants, as above stated. The pleadings of the parties at the last trial: Plaintiff's petition was the same as on the first trial, no amendment having been since made. It was in the ordinary form of a suit in trespass to try title, and, in addition, asking damages for destruction of timber, etc. (which count has never been urged, and about which no question arises), and also seeking to recover for use and occupation of the property; making the usual allegations for that purpose. C. H. Benson's fourth amended original answer, filed April 16, 1897, claimed compensation for improvements in good faith on a tract of 150 acres, and a tract of 21½ acres of the 300 acres in controversy; making voluminous allegations in support of his claim. In a separate count he claimed damages, actual and exemplary, for the sequestration of the property by plaintiff. A demurrer to this count was afterwards sustained, and it was thus finally disposed of. T. K. Flowers and R. N. Merritt's fourth amended original answer, filed April 16, 1897, claimed compensation for improvements in good faith on the 100 acres in Merritt's possession, as before stated, and also on a 50-acre tract adjoining thereto, including the 21½ acres embraced in Benson's claim. Voluminous allegations were likewise made in support of this claim. It was alleged that an undivided one-half interest in the 300 acres had been conveyed jointly to T. K. Flowers and J. T. Flowers and R. N. Merritt; that afterwards this 150 acres was set aside to them in a voluntary partition with C. H. Benson, who had purchased the other 150 acres undivided interest; that afterwards the 150 acres so set aside to them was again partitioned, giving each 50 acres in severalty, each tract being fully described; that afterwards J. T. Flowers and wife conveyed his 50 acres to Merritt, whereby Merritt acquired 100 acres. Volney Caldwell's original plea of intervention, filed April 16, 1897, alleged that, in the sale from J. T. Flowers and wife to Merritt, certain vendor's lien notes were given, of which intervener had become owner. He prayed that, in the event Merritt should recover on his claim for improvements on this 50 acres, he should be subrogated to Merritt's rights, so far as necessary to his protection, etc. There was no actual controversy between Merritt and Caldwell, and there has never been any dispute about his rights. He claims under Merritt, and his claim will stand or fall with Merritt's claim. It is therefore unnecessary to go into further particulars. Plaintiff Cahill's second supplemental petition, filed April 21, 1897, demurred on several grounds to the respective claims for improvements, and pleaded specially the Brown lease of 30.15 acres; that, in consideration of the ratification of said lease by plaintiff, Benson, in writing, abandoned all claim for improvements thereon, except his claim for fencing the same, digging a well, and erecting a tenant house,—the balance of the improvements having been made by Brown in payment of his rent. Plaintiff also alleged other matters not material to this appeal. The pleadings of other parties are immaterial on this appeal, no question arising thereunder. George Brown and Isaac Benson, who joined in the claim for improvements on the first trial, made no claim at the last trial. On April 22, 1897, all of plaintiff's demurrers were overruled, except the demurrer to C. H. Benson's claim for damages for sequestration, which was sustained, and upon trial before a jury a verdict was rendered as follows: For C. H. Benson, $2,174 for improvements on 171½ acres of land claimed by him, valued, without improvements, at $3,000. For R. N. Merritt, $635 for improvements on the 50 acres bought from J. T. Flowers, valued, without improvements, at $850; for R. N. Merritt, $479 for improvements on his original 50 acres, valued, without improvements, at $850; against T. K. Flowers on his claim for improvements, and allowing plaintiff nothing for rents or use and occupation. The verdict also disposed of the other parties and issues, under peremptory instructions, as to which no questions arise on this appeal. The statutory judgment was rendered on this verdict, unless and except on the question of costs. Notwithstanding plaintiff recovered judgment for the land, defendants R. N. Merritt and C. H. Benson contended that on the verdict they were not liable for costs incurred since the filing of the mandate from this court, while plaintiff contended the contrary. To settle the matter, plaintiff filed a motion that judgment be rendered against Benson and Merritt for costs. This motion was denied, and the court ordered that all costs incurred since the filing of the mandate by or on behalf of Benson and Merritt be taxed against plaintiff. Judgment was entered accordingly. Plaintiff's motion for a new trial was overruled; appeal duly perfected, and statement of facts and assignments of error duly filed. Statement of the issues and evidence: On this appeal the judgment of the court below is complained of in the following particulars: (1) In allowing any compensation whatever for improvements to Benson and Merritt; (2) in the amount of their respective recoveries; (3) in the denial of all compensation to plaintiff for use and occupation; (4) in taxing any of the costs against plaintiff.

Dickson & Moroney, for appellant. Jeff Word and Thompson & Thompson, for appellee Merritt. Kearby & Muse, for appellee Benson.

FINLEY, C. J. (after stating the facts).

The first, second, third, sixth, and seventh assignments of error are grouped, and propositions propounded under them. The assignments are as follows: "(1) The court erred in refusing to give to the jury the first special charge requested by plaintiff, that, under the undisputed evidence in this case, the defendants C. H. Benson, R. N. Merritt, and T. K. Flowers were not and are not possessors in good faith, and to therefore find against them on their respective claims for improvements. (2) The court erred in submitting to the jury the right of C. H. Benson to recover for improvements, because under the undisputed evidence, he was not a possessor in good faith. (3) The court erred in submitting to the jury the right of R. N. Merritt to recover for improvements, because, under the undisputed evidence, he was not a possessor in good faith." "(6) The court erred in overruling plaintiff's motion for a new trial on the twelfth ground therein stated, to wit, the verdict of the jury is contrary to the law and the evidence, and the overwhelming weight of the evidence, in this: that the undisputed evidence, and the overwhelming weight of the evidence, establish that the defendant C. H. Benson was not a possessor or improver in good faith. (7) The court erred in overruling plaintiff's motion for a new trial on the thirteenth ground therein stated, to wit, the verdict of the jury is contrary to the law, and the charge of the court, and the undisputed evidence, and the overwhelming weight of the evidence, in this: that the undisputed evidence, and the overwhelming weight of the evidence, establish that the defendant R. N. Merritt was not a possessor or improver in good faith."

It is contended by appellant that, under the undisputed evidence, C. H. Benson, R. N. Merritt, and T. K. Flowers were not possessors in good faith, and that the court...