Churchman v. Rumsey, 5472.

• Decision Date: 02 November 1942
• Docket Number: No. 5472.,5472.
• Parties: CHURCHMAN v. RUMSEY et al.
• Court: Texas Court of Appeals

Page 960

166 S.W.2d 960

CHURCHMAN v. RUMSEY et al.

No. 5472.

Court of Civil Appeals of Texas. Amarillo.

November 2, 1942.

Rehearing Denied December 21, 1942.

Appeal from District Court, Parmer County; James W. Witherspoon, Judge.

Action in trespass to try title by Marion Doud Rumsey and husband against H. C. Churchman. Judgment for plaintiffs, and defendant appeals.

Affirmed.

W. H. Russell, of Hereford, and E. F. Lokey, of Farwell, for appellant.

Aldridge & Aldridge, of Farwell, and Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellees.

STOKES, Justice.

Appellee, Marion Doud Rumsey, joined by her husband, Henry A. Rumsey, filed this suit against appellant, H. C. Churchman, in trespass to try title to 160 acres of land located in Parmer County. Appellant answered by the general issue and set up title under the statutes of five and ten years limitation. The case was submitted to the court without the intervention of a jury and judgment was rendered in favor of the appellees from which appellant has prosecuted this appeal.

Appellant contends, first, that the undisputed evidence, both the documentary evidence and the testimony of the witnesses, established his allegations to the effect that he held and claimed peaceable and adverse possession of the land in question, cultivating, using, and enjoying the same, and paying all taxes due thereon in such manner as to perfect a title in him under the five-year statute of limitation, Article 5509, R. C.S.1925; and, secondly, that the undisputed evidence showed that he held and claimed peaceable and adverse possession of the land in question, cultivating, using, and enjoying the same for a period of more than ten years before the institution of the suit, in such manner as to perfect a title in him under the ten-year statute of limitations, Article 5510, R.C.S.1925, and that the court therefore erred in entering judgment for appellees and in refusing to render judgment in favor of appellant.

It was stipulated at the trial that the record title to the land was in appellee, Marion Doud Rumsey, and that she was entitled to recover unless defeated by the defenses of appellant based upon the statutes of limitations above mentioned. The record shows that before 1909, Elizabeth R. Doud, mother of appellee, Marion Doud Rumsey, owned the land in controversy and on September 9th of that year she, joined by the appellees, conveyed it to Sarah C. Burnley who executed a number of promissory notes as part of the purchase price, to secure the payment of which a vendor's lien was retained in the deed, and as additional security Mrs. Burnley executed a deed of trust; that about the year 1916, some of the notes not having been paid at maturity, the deed of trust was foreclosed and the land was bought in by Elizabeth R. Doud. Mrs. Doud later died and the appellee, Marion Doud Rumsey, as the sole heir of her mother, inherited the land.

On a date not shown by the record, Mrs. Burnley died, leaving four adult children, three of whom, during the year 1925, conveyed their purported interests in the land to their sister, Mrs. Grace Slade, and her husband, Harry Slade. The witness, W. R. Noble, testified that about the year 1925, Harry Slade and his wife, Grace Slade, who were residents of the State of Iowa, came to his house, which was located near the land in controversy, and told the witness that the land belonged to the Doud estate. He said Harry Slade told him that his wife, Grace Slade, was the daughter of Mrs. Doud and he offered to lease the land to the witness Noble if Noble would pay the taxes each year. He said he accepted Slade's proposition and leased the land in that manner over the entire period from then until January 1, 1939. The record further shows that, with the knowledge and consent of Harry Slade, Noble subleased the land to W. S. Menefee, who owned land adjoining it, and that Menefee cultivated it each year from the spring of 1927 to, and including, the year 1937. On November 23, 1927, Harry Slade and W. R. Noble entered into a written lease contract under which Noble leased the land from Slade for a term of three years, and on November 26, 1927, Harry Slade and wife, Grace Slade, conveyed the land by general warranty deed to appellant, H. C. Churchman. Churchman testified that shortly after this deed was executed he notified Noble he was the owner of the land but told Noble he might continue his occupancy and possession under the lease contract of Harry Slade. On January 1, 1931, when the Slade lease expired, a similar lease was entered into by appellant Churchman and W. R. Noble, under which Noble leased the land from Churchman for three years, and upon expiration of that lease on January 1, 1934, another like lease was entered into between them under which Noble leased the land for still another term of three years, ending January 1, 1937. Noble continued to use the land under a verbal lease until September 4, 1939, when Churchman and J. M. Osborne entered into a similar lease contract under which Osborne seems to have agreed to cultivate the land as the tenant of appellant for three years beginning January 1, 1940 and terminating December 31, 1942. Shortly after their execution, all of these written leases were filed in the office of the county clerk of Palmer County and duly recorded in the Deed Records. The only consideration Noble ever paid to Slade or appellant, as far as the testimony shows, was the payment of the taxes on the land.

The testimony shows that Noble probably had his conversation with Slade in 1925, but the only possession Noble ever had began in the spring of 1927, when he subleased the land to Menefee. The taxes were paid before they became delinquent for the years 1925 to 1929, inclusive, and,...