Cliett v. Scott, Civ. A. No. 6068.

• Decision Date: 19 February 1952
• Docket Number: Civ. A. No. 6068.
• Citation: 103 F. Supp. 440
• Parties: CLIETT et al. v. SCOTT et al.
• Court: U.S. District Court — Southern District of Texas

103 F. Supp. 440

CLIETT et al. v. SCOTT et al.

Civ. A. No. 6068.

United States District Court S. D. Texas, Houston Division.

February 19, 1952.

Sam G. Croom, of Houston, Tex., for plaintiffs.

W. H. Betts, of Hempstead, Tex., for defendants.

KENNERLY, Chief Judge.

This suit, filed in a State Court March 7, 1941, and removed into this Court April 13, 1951, involves certain lands in Waller County, in this District and Division. The parties to this suit, or those whose title they have, have heretofore been before this Court and an Appellate Court, litigating the title, etc. to such lands. See Scott v. Smith, 5 Cir., 84 F.2d 489, and Cliett v. Scott, 5 Cir., 102 F.2d 725. As a result of that litigation, Plaintiffs and Defendants by Judgment of this Court on March 14, 1938,¹ each recovered an undivided one-half interest in and to such lands.

This suit having been originally filed in the State Court, various pleadings have been filed by the parties both in the State Court and in this Court. These are hereinafter more fully set forth. However, the case is now pending here on Plaintiffs' Third Amended Complaint, filed herein October 15, 1951. In such pleading, Plaintiffs seek to recover title to and possession of said lands in their entirety, but in the alternative Plaintiffs say that if Defendants own an undivided one-half interest therein, Plaintiffs have paid certain taxes, costs and expenses with respect thereto, and they sue for, and claim they are entitled to recover from Defendants, reimbursement therefor. Defendants deny that Plaintiffs own the entire title to such lands, but say that Plaintiffs and Defendants each own an undivided one-half thereof. They also deny that Plaintiffs are entitled to recover the taxes, costs and expenses sued for.

Defendants have moved for Summary Judgment, and this is a hearing of such Motion. The grounds upon which Defendants claim to be entitled to such Summary Judgment will be stated in the discussion.

1—Defendants say in their Motion for Summary Judgment that the Judgment of this Court of March 14, 1938, vested in Plaintiffs and Defendants each an undivided one-half interest in said land, and they plead such Judgment as res adjudicata of any dispute now existing between the parties with respect to such title. It is perfectly plain that under such Judgment and the record as presented here, Plaintiffs and Defendants are each the owners of an undivided one-half interest in such lands, unless Plaintiffs have, as they claim, acquired title thereto under the Texas Ten Year Statute of Limitation.

2.—Plaintiffs, as stated, claim such land, etc. under the Texas Ten Year Statute of Limitation.² Defendants say in reply that even though Plaintiffs have been in possession of said land (which, however, they deny) for the length of time prescribed by such Statute, Plaintiffs cannot recover under such Statute, because Plaintiffs' claim has been neither peaceable³ nor adverse⁴ within the meaning of such Statute. Or if it has been peaceable or adverse, they say the facts show a tolling of such Statute for a sufficient length of time to prevent Plaintiffs from recovering thereunder.

The Judgment of March 14, 1938, settles, as of that date, all questions of title, limitation, possession, or otherwise, between Plaintiffs and Defendants, and in order to recover, Plaintiffs must show full ten years peaceable and adverse possession under such Statute subsequent to that date. This Record clearly shows that Plaintiffs have not done so and cannot do so.

Whatever may be said with respect to Plaintiffs' possession between March 14, 1938, and March 7, 1941, it is perfectly plain that this Record shows that Plaintiffs' claim and possession of said land was not peaceable and adverse for full ten years subsequent to March 7, 1941. Particularly it was not peaceable and adverse from March 7, 1941, to September 29, 1947. Nor from September 29, 1947, to March 24, 1951. This was true for the following reasons:—

(a) On that date (March 7, 1941), not claiming such lands in their entirety, but moving on the theory that Plaintiffs and Defendants each owned an undivided one-half interest therein, Plaintiffs brought this suit against Defendants in the District Court of Waller County to recover from them monies claimed by Plaintiffs to have been expended for taxes, costs and expenses on the whole of such lands. They ask that the sum so paid out be declared to be a lien on such lands or Defendants' one-half thereof.⁵

(b) On September 29, 1947, Defendants filed in this suit in the District Court of Waller County their Answer to Plaintiffs' suit so filed on March 7, 1941, in which Defendants join issue with Plaintiffs as to Plaintiffs' right to recover such sums of money from Defendants, and by cross-action, sue Plaintiffs for the rents and profits of one-half of such lands during the period of time Plaintiffs had been in possession thereof.

(c) On October 17, 1947, by Supplemental Petition filed in said cause in the District Court of Waller County, Plaintiffs join issue with Defendants on Defendants' said Answer and Cross-Action, and pray that they be given Judgment against Defendants as set forth in their Original Petition filed March 7, 1941.⁶

(d) On March 24, 1951, Plaintiffs filed in said cause in the District Court of Waller County their Amended Petition, in which they claim to own the whole of such lands and seek to recover same in their entirety. But in the alternative they still seek to recover for monies expended thereon as set forth in their former pleadings.

In other words, Plaintiffs are claiming to have matured title by limitation to the whole of such lands while they were at the same time conceding in their pleadings in this case in the State Court that Defendants owned one-half thereof, and were seeking to recover from Defendants part of the expenditures alleged to have been made by Plaintiffs for the benefit of the whole title. This, under the Texas authorities, they may not do.

To cite all the cases would be such a large task that I quote the language of the Supreme Court of Texas from one of the earlier Texas decisions, Word v. Drouthett, 44 Tex. 365, 369 (italics mine): "The possession must be exclusive, or, as it is generally expressed, it must be `actual, continued, visible, notorious, distinct, and hostile.' (2 Smith's Lead.Cases, 561, et seq.) It must neither be abandoned, yielded up, or held in subordination to, recognition of, or dependent upon the will or right of another. He who would claim by reason of his adverse possession must, as has been said, `keep his flag flying.' Stephens v. Leach, 19 Pa. 262, 265). His entry upon the land must be with intent to claim it as his own or hold it for himself; or his intention to do so, if conceived after going into possession for some other purpose, must be manifested by some open or visible act or declaration showing such purpose, in order to set the statute in motion in his favor. (Wash. on Real Prop., 125; 2 Smith's Lead.Cases, 561). The possession must be fair and open, because `the statute was not made to serve the purpose of artifice and trick.' (Sailer v. Hertzogg, 2 Pa. 182, 185)."

And I quote from one of the most recent cases, Delany v. Patterson Padgett et al., 5 Cir., 193 F.2d 806, 810, where in discussing adverse possession under the Texas Statutes of Limitation, it is said (italics mine):

"These same authorities do, though, make it perfectly clear that the claim of right referred to in the statutes means a bold and open, a downright and persistent claim asserted not furtively by stealth and artifice, but openly, notoriously, unequivocally, adversely and continuously. Because this is so, the decisions under these statutes take pains to leave in no doubt that if there is any break or chink in the armor of proof which a possessor must put and keep on when he undertakes to acquire a title by limitation, such as a single lisp of acknowledgement, the slightest uncertainty or equivocation in the openness and downrightness of his claim, a failure to comply precisely and exactly with the statutory provision, it is, and will be, fatal to the claim."

The pleadings of Plaintiffs filed herein as stated are more than "lisps of acknowledgement". They are plain declarations and admissions that Defendants owned an undivided one-half interest in the land. See Warren v. Frederichs, 83 Tex. 380, 384, 18 S.W. 750. Houston Oil Co. of Texas v. Pullen, Tex. Com.App., 272 S.W. 439, 440, where it is said:

"There are various ways by which the title of another may be recognized. For instance, as stated by counsel in the application for writ of error:

"`(1) By agreement to hold under another. Burrell v. Adams, 104 Tex. 183, 135 S.W. 1156; Weisman v. Thomson, Tex. Civ.App., 78 S.W. 728. (2) By the taking or offering to take a lease. Gillean v. Frost, 25 Tex.Civ.App. 371, 61 S.W. 345. (3) By an offer to buy when it involves an admission of title. Mhoon v. Cain, 77 Tex.316 317, 14 S.W. 24; Texas & N. O. R. Co. v. Speights, 94 Tex. 350, 60 S.W. 659; Schleicher v. Gatlin, 85 Tex. 270, 20 S.W. 121; Chapman v. Dickerson, Tex. Civ.App., 223 S.W. 318. (4) By a promise to pay rent for the use of the land. Gordon v. Gordon, Tex.Civ.App., 224 S.W. 716. (5) By an admission that he claims no title. Warren v. Frederichs, 83 Tex. 380 384, 18 S.W. 750; McDonald v. McCrabb, 47 Tex.Civ.App. 259, 105 S.W. 238. (6) By an admission of title in another. Texas West R. Co. v. Wilson, 83 Tex. 153 157, 18 S.W. 325; Beal v. Earhart, Tex.Civ. App., 249 S.W. 1093; Thompson v. Richardson, Tex.Com.App., 221 S.W. 952; Satterwhite v. Rosser, 61 Tex. 166; Whitaker v. Thayer, 38 Tex.Civ.App. 537, 86 S.W. 364; Gillean v. Frost, 25 Tex. Civ.App. 371, 61 S.W. 345 347; Texas & N. O. R. Co. v. Speights, 94 Tex. 350, 60 S.W. 659; Mass v. Bromberg, 28 Tex. Civ.App. 145, 66 S.W. 468. (7) And in various other ways, Corpus Juris, Vol. 2, p. 103, par. 142; Collins v. Megason, Tex.Civ. App....