Carmichael v. Williams

• Decision Date: 12 January 1956
• Docket Number: No. 6848,6848
• Citation: 286 S.W.2d 456
• Parties: Julia C. Hunt CARMICHAEL, Appellant, v. Abbie WILLIAMS, Appellee.
• Court: Texas Court of Appeals

Page 456

286 S.W.2d 456

Julia C. Hunt CARMICHAEL, Appellant, v. Abbie WILLIAMS, Appellee.

No. 6848.

Court of Civil Appeals of Texas, Texarkana.

Jan. 12, 1956.

Rehearing Denied Jan. 26, 1956.

R. P. Watson, Jr., Marshall, for appellant.

Smith & Hall, Marshall, for appellee.

FANNING, Justice.

This appeal involves title to the South 10 acres of a 40-acre tract of land in Harrison County, Texas. Appellant, Julia C. Hunt Carmichael, claims the 10 acres in question through a deed from L. H. Williams and wife, dated April 6, 1936, and also through deed to the 10 acres in controversy from appellee, Abbie Williams, to L. H. Williams, dated February 15, 1936. Appellee, Abbie Williams, denied making a deed to L. H. Williams, testifying to the effect that she signed or understood that she was signing a note and produced various receipts for indebtedness paid to Williams, and testified to the effect that she never recognized the deed to Williams, that neither Williams nor appellant ever had possession of the 10 acres at any time, and testified to facts showing her continued use, occupancy and adverse possession of said 40-acre tract, including the 10 acres in question, since her ownership of the 40 acres from 1920 until the time of the trial in 1955. Appellee-plaintiff's pleadings were in trespass to try title and she also pleaded the five and 10-year statutes of limitation, Vernon's Ann.Civ.St. arts. 5509, 5510. The jury found favorably to the appellee on the issues of limitation with respect to the five and 10-year statutes covering such periods after April 6, 1936. The jury also found to the effect that appellee, Abbie Williams, asserted adverse possession to the property in controversy against appellant such as was and is of such unequivocal notoriety that the appellant, Carmichael, would be presumed to have notice of such adverse claim and possession. Judgment was entered for plaintiff upon the verdict of the jury and appellant has appealed.

Appellant presents six points. Appellant's first four points will not be quoted here because of their length. Appellee objects to the first four points because: (1) The points do not apprise the court of the assignments of error to which said points are germane as required by Rule 418, Texas Rules of Civil Procedure; (2) the points do not direct the attention of the court to the error relied upon by the appellant in the trial court. We are of the view that appellant's first four points are not briefed in accordance with the briefing rules. See the following authorities: Rule 418, T.R.C.P.; Safety Gas Co. v. Bennett, Tex.Civ.App., 259 S.W.2d 596; Treme v. Thomas, Tex.Civ.App., 161 S.W.2d 124; Novita Oil Co. v. Smith, Tex.Civ.App., 247 S.W.2d 151; Commercial Travelers Casualty Company v. Perry, Tex.Civ.App., 281 S.W.2d 130; Hudspeth v. Hudspeth, Tex.Civ.App., 206 S.W.2d 863.

Appellee objects to appellant's fifth point because it is multifarious, and because no objections, exceptions, requested issues or instructions were filed in the trial court by appellant as to any issues submitted to the jury. We have examined the point and think these objections are well taken. See the following authorities: Rule 274, T.R.C.P.; Safety Casualty Co. v. Link, Tex.Civ.App., 209 S.W.2d 391, wr. ref. NRE; Edwards v. Strong, 147 Tex. 155, 213 S.W.2d 979; Federal Underwriters' Exchange v. Bickham, Tex.Civ.App., 136 S.W.2d 880; Butler v. Jenkins Oil Corp., Tex.Civ.App., 68 S.W.2d 248.

It is our further view that a full consideration of appellant's first five points will reveal neither fundamental nor reversible error under the record in this case. As we understand appellant's first five points, the gist of her contentions is that the trial court erred in not granting her motion for directed verdict and her motion for judgment non obstante veredicto under the undisputed evidence and because of her deed from L. H. Williams and because of the deed from Abbie Williams to L. H. Williams, and contends in essence that there were no fact issues raised to go to the jury.

It is well-established law that a vendor may claim the benefit of the 10-year adverse possession statute where he remains in possession of the land conveyed without recognizing the vendee's rights, but claiming the land as his own. Great Southern Life Ins. Co. v. Dodson, Tex.Civ.App., 155 S.W.2d 379; Crandell v. Garza, Tex.Civ.App., 265 S.W.2d 846, wr. ref. NRE; Dickey v. Forrester, Tex.Civ.App., 148 S.W. 1181; Evans v. Templeton, 69 Tex. 375, 6 S.W. 843; Smith v. Montes, 11 Tex. 24; Thomson v. Weisman, 98 Tex. 170, 82 S.W. 503; Texas & P. Ry. Co. v. Maynard, Tex.Civ.App., 51 S.W. 255, wr. den.; Harne v. Smith, 79 Tex. 310, 15 S.W. 240, 23 Am.St.Rep. 340.

In Great Southern Life Ins. Co. v. Dodson, supra (155 S.W.2d 381), it is stated:

'The appellant contends that there was no adverse possession of the land by the appellee because there was no change in the nature and character of the holding before and after the partition suit in 1907. * * * The appellant thus asserts that subsequent to the partition the appellee was in the same position as a grantor after a conveyance remaining in possession in recognition of the grantee's title, and in order to establish a limitation title must necessarily have repudiated the title of the record owner in some manner other than naked possession of the land. We recognize the rule that where a claimant enters into possession of a tract of land in privity with or in recognition of the true owner's title, he cannot thereafter perfect a claim of title or defense under the statute as against the true owner without bringing to his notice a repudiation of the recognition and the assertion of an adverse claim, and the 'right to shield his possession under the statute or to carve an estate, dates only from his repudiation' (citing cases). But this rule, we think, is not applicable to the facts of this case. There is no intimation from the evidence that the appellee went into possession of the land after the partition in recognition of the rights of her stepchildren or that in any manner she has since recognized the rights of their grantees and their successors in interest. On the contrary the testimony reveals that at all times since the partition the appellee has possessed the land under the mistaken belief that it passed to her under the partition judgment. Therefore, this case more accurately falls within the rule that there is nothing to prevent a vendor from claiming the benefit of the statute where he remains in possession of the land conveyed without recognizing the vendee's rights but claiming the land as his own. (Citing cases.) * * * 'As a rule', it is said, 'continued open and notorious possession by a grantor will be deemed to be adverse where it is of such a character as to be entirely inconsistent with the rights of the grantee'. 1 Am.Jur. 819, par. 48. The fact that through all the years the appellee held that land under the erroneous conclusion that it...