Campbell v. McLoughlin

• Decision Date: 06 March 1925
• Docket Number: (No. 1185.)
• Citation: 270 S.W. 257
• Parties: CAMPBELL et al. v. McLOUGHLIN et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

270 S.W. 257

CAMPBELL et al. v. McLOUGHLIN et al.^*

(No. 1185.)

Court of Civil Appeals of Texas. Beaumont.

March 6, 1925.

Rehearing Denied March 18, 1925.

Appeal from District Court, Hardin County; J. L. Manry, Judge.

Action by S. Campbell and others against R. E. McLoughlin and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

K. C. Barkley and W. S. Parker, both of Houston, for appellants.

Smith, Crawford & Sonfield, of Beaumont, and D. F. Singleton, of Kountze, for appellees.

WALKER, J.

The Smith and Davidson grants are adjoining surveys in Hardin county, Tex., the Smith immediately north of the Davidson. The David Choate grant was junior to the Smith and Davidson, and was in part laid on the western end of these two senior grants; thus creating a conflict involving a large part of the Choate.

In 1873, under lawful executions against David Choate, the sheriff of Hardin county sold 400 acres of the David Choate grant to S. G. McClenny and an adjoining tract of 200 acres to L. H. Daniels, conveying by these deeds all the right, title, and interest owned in the land by David Choate at that time. Appellants, by heirship and mesne conveyances, hold under these sheriff's deeds, which were valid in every respect and effective to pass whatever interest David Choate owned in the land at the time of the sale. These two tracts of land, while on and a part of the David Choate, were included in the conflict between that survey and the Smith and Davidson grants. Appellees claimed by heirship and a chain of regular transfers under David Choate and his wife, Mary Choate.

Appellants instituted this suit against appellees in the usual form of trespass to try title to recover from them the 600 acres above described, pleading also limitation in favor of David Choate on the theory that he had perfected a limitation title against the Smith and Davidson titles prior to the execution of the sheriff's deeds to McClenny and Daniels in 1873. Appellees answered by the usual pleas, and also sought to show: (a) That this land was the separate property of the wife of David Choate at the time of the execution sales; (b) that a title by limitation was perfected by David Choate and his wife subsequent to the execution of the sheriff's deeds; (c) that the grantees under the sheriff's deeds had reconveyed the land to David Choate and his wife. Appellees also sought to show that the Smith and Davidson titles were superior outstanding titles against the title asserted by appellants, and that they had connected themselves with those titles.

On a trial to a jury, appellants offered in evidence the complete David Choate chain of title from the state to themselves through David Choate, and, for the purpose of showing common source, the title from David Choate to appellees. Appellees then offered the complete chains of title from the state to Smith and Davidson, and from and under them to the Houston Oil Company, showing an active assertion of title by the Houston Oil Company and those under whom it held. This showing brought these titles down to about 1916. Then appellees offered in evidence a judgment whereby they and those under whom they hold recovered from the Houston Oil Company certain lands, including all the land in controversy in this suit. This was the judgment in the case of Houston Oil Co. v. Polly Choate et al., reported from the Court of Civil Appeals in 215 S. W. 118, and from the Supreme Court in 232 S. W. 285, to which reference is here made for a more detailed history of that case. Enough of the pleadings in that case was offered in evidence to show that the judgment was based on a plea of limitation.

On conclusion of the evidence in the case now before us, the trial court instructed a verdict for appellees for all the land on the Smith, but submitted to the jury the issue of limitation on the Davidson under the following issue, requested by appellants:

"Did David and Mary Choate, or either of them, have possession of the land in controversy in this suit under the three or five year statutes of limitation as the same has been defined for either the three or five years prior to June 3, 1873?"

The jury answered this question in the negative. On proper questions the jury found against appellees on their issues of separate property, limitation, and reacquisitions of the title under the grantees in the sheriff's deeds executed in 1873. On the verdict of the jury a judgment was entered in favor of appellees for all of the land in controversy, on the theory that the Smith and Davidson titles were superior outstanding titles to the Choate, and that they had connected themselves with and were in privity with those superior titles. From the undisputed evidence and from the verdict of the jury it appears, and we so find, that appellants now own and hold whatever interest David Choate was shown to own in the David Choate at the time of the execution of the sheriff's deeds in 1873; that is to say, they own and hold the superior title under David Choate as common source. It follows then that the correctness of the judgment in favor of appellees can be sustained only on the theory that appellees established as a matter of law (a) an outstanding title superior to the David Choate, and that such outstanding title had not passed to David Choate prior to the execution of the sheriff's deeds in 1873 (b) or that they had connected themselves with such outstanding title by showing in an affirmative way that they owned it.

Opinion.

Appellants have stated the issues in this appeal in the following questions:

Question No. 1:

"Was the judgment rendered in the case of Houston Oil Company v. Polly Choate et al., in the district court of Hardin county, Tex., in 1916, admissible in evidence as a link in appellees' chain of title, or as a muniment of their title?"

Appellants objected to the introduction of the judgment in the Polly Choate Case on the following grounds:

"The defendants in said cause offered in evidence as a link in their chain of title under Houston Oil Company of Texas, and for a statutory effect as evidence, judgment in cause No. 1796, Houston Oil Company of Texas v. Polly Choate et al., rendered in the district court of Hardin county, Tex., in March, 1916, whereby it was adjudged and decreed by the court that the interveners, Mrs. D. P. McLoughlin et al., recovered said land, for the reason it was not involved in defendants' chain of title or as a muniment of title.

"That the portion of said judgment offered in evidence, being only the decreeing part thereof, unaccompanied by the issues submitted to the jury and their answers therein explaining the basis of same, was inadmissible for statutory effect or otherwise."

The decreeing part of the judgment in this cause No. 1796 reads as follows:

"And it appearing to the court that the Houston Oil Company of Texas has heretofore dismissed its suit as plaintiff herein, and the same is hereby dismissed, and it further appearing that Mrs. Polly Choate and John W. Davis, original defendants in this suit, are dead, and that the only parties remaining to this suit are the interveners, Mrs. D. P. McLoughlin et al., and the Houston Oil Company of Texas; and it appearing that the said interveners, Mrs. D. P. McLoughlin et al., are entitled to recover the land described in their intervention and crossaction, and the said interveners having moved for judgment herein, it is ordered, adjudged, and decreed by the court that the interveners, Mrs. D. P. McLoughlin, Ester Owen, Samuel Owen, her husband, Ettie Keller and Arthur Keller, her husband, Dora Shields and R. J. Shields, her husband, Lorenze Votaw, Jay McGehee, Hattie Martin and Lee Martin, her husband, Mable Baker, Fannie McGehee, Effie Davidson and Tom Davidson, her husband, Marion White and Robert White, her husband, Opal Votaw White and James White, her husband, Carrol C. Votaw, Mrs. Mary Votaw, George McGehee, and Farley McGehee, and R. E. McLoughlin, do have and recover of and from the Houston Oil Company of Texas the following described tract or parcel of land, to wit:

"All that certain tract or parcel of land granted to David Choate, Jr., on the 28th day of October, 1848, by the Governor of Texas, by virtue of his headright certificate No. 345, issued by the board of land commissioners of Liberty county, Tex., on the 6th day of June, 1839, said land being situated on the north side of Pine Island Bayou, about three miles from the mouth, in said Hardin county, Tex., and more particularly described as follows:

"Beginning for its southeast corner at the southwest corner of a survey made for Lefroy Guidry, which corner was anciently marked by a pine tree marked `L. G.' bearing S. 12 deg. W. 2.2 varas, and another marked `X' bore therefrom S. 81 deg. W. 2.4 varas, where a pipe and concrete monument formerly stood; thence westwardly with said bayou about 1,576 varas to the southwest corner of said David Choate survey from which originally a pin oak marked `D. C.' bore N. 59 deg. E. 4 varas, another marked `X' bore S. 32 deg. E. 5.5 varas, and is now marked by an iron pipe at said corner from which a gum 12" bears N. 70½ deg. E. 8.1 varas, and a tupalo gum at the edge of the water in said bayou bears S. 47½ deg. E. 15 varas; thence N. 5,250 varas to a corner from which originally a pin oak marked `D. C.' bore S. 80 deg. E. 4 varas and a sweet gum marked `X' bore S. 24 deg. E. 5.2 varas and from which corner a black gum marked `X' bears S. 24 deg. E. 3.2 varas and a pin oak 6" bears S. 38¾ deg. E. 2.7 varas; thence in an easterly direction 1,576 varas to corner, 4,633 varas north of the place of beginning; thence south 4,633 varas to the place of beginning, and being the southeast corner of the David Choate survey.

"And it is the further judgment of the court that the said interveners do have and recover of and from the said Houston Oil Company of Texas all costs in this behalf expended, and all orders, process,...