Cocke v. Texas & N. O. R. Co.

• Decision Date: 09 May 1907
• Parties: COCKE v. TEXAS & N. O. R. CO. et al.
• Court: Texas Court of Appeals

Page 407

103 S.W. 407

COCKE v. TEXAS & N. O. R. CO. et al.

Court of Civil Appeals of Texas.

May 9, 1907.

Rehearing Denied June 6, 1907.

Error from District Court, Harris County; Chas. E. Ashe, Judge.

Trespass to try title by the Texas & New Orleans Railroad Company against Richard Cocke and others, in which the Houston & Texas Central Railroad Company intervened. There was a judgment for plaintiff and the intervener, and defendant Richard Cocke brings error. Affirmed.

John Lovejoy, W. G. Love, T. H. McGregor, and Gillette & Franklin, for plaintiff in error. Baker, Botts, Parker & Garwood and T. D. Cobbs, for defendants in error.

PLEASANTS, J.

This is an action of trespass to try title brought by the Texas & New Orleans Railway Company against Richard Cocke, Matthew Drohan, and James Pearson to recover the title and possession of certain parcels of land situated in the city of Houston. The land sued for is described in the petition as block No. 58, on the north side of Buffalo Bayou in said city, and one-half of the strip of land lying between said block 58 and block 59 and "sometimes described as Vine street." The defendant Cocke answered by general and special exceptions, plea of not guilty, and pleas of limitation of three, five, and ten years, and by cross-bill against his codefendants sought judgment for the title and possession of a portion of said land described in his answer and of which he alleges he had been unlawfully dispossessed by said defendants. The defendants Drohan and Pearson filed answers containing pleas of not guilty and of limitation against the claims of both plaintiff and their codefendant Cocke. The Houston & Texas Central Railroad Company intervened in the suit, claiming that a portion of the land claimed by the defendants was a part of block 59 owned by said intervener, and asking judgment against said defendants for the portion of said block so claimed by them, and also for that portion of the property claimed by the defendants between blocks 58 and 59, and called "Vine street." The defendants answered the petition of the intervener by pleas similar to those interposed in defense of plaintiff's suit. The trial in the court below was by a jury. The court instructed a verdict in favor of the plaintiff and intervener, and, said parties having by agreement made during the trial joined issues as against the defendants and waived the right to a judgment settling their several interests in the land in controversy, judgment was rendered accordingly. From this judgment, the defendant Cocke sued out a writ of error, and the case is before us on his complaint alone.

The evidence shows that the land in controversy is a part of the John Austin original grant. The plaintiff and intervener showed title to blocks 58 and 59, described in their petitions, through mesne conveyances from A. C. and J. K. Allen, and sought to connect themselves with the original grantee through certain proceedings in the probate court of Brazoria county had in the administration of the estate of John Austin, and a deed from Elizabeth Parrott and husband to said A. C. and J. K. Allen. These proceedings consist: First. Of a petition by T. F. L. Parrott and wife, Elizabeth Parrott, filed in said court, alleging that said petitioners are the sole heirs of John Austin, deceased, and praying that they be declared such heirs "without the benefit of inventory and such other privileges in furtherance of this matter as the court may in its wisdom deem proper." Second. An order of said court made on July 31, 1837, directing that notice of said petition be given according to law. Third. An order of said court made on October 31, 1837, granting the prayer of said petition, and adjudging that the said Elizabeth Parrott is "the unconditional heir of said John Austin." Fourth. The petition of Elizabeth Parrott, joined by her said husband, filed in said court August 25, 1836, asking permission to sell a part of the Austin grant (including the land in controversy). Fifth. An order of said court made on August 25, 1836, granting said petition and adjudging that said Parrott and wife "be and are hereby authorized to sell and convey said land." The deed from Elizabeth Parrott and husband, conveying said land to A. C. and J. K. Allen, was executed August 26, 1836. The defendant Cocke claimed title to that portion of the land in controversy, called "Vine street," through conveyances under A. C. and J. K. Allen subsequent to the conveyance under which plaintiff and intervener claim. Prior to 1854 the owner of the tract of land which includes the property in controversy subdivided it into blocks, lots, and streets, and the conveyances under which defendants in error held refer to the streets and give the block numbers as shown on the official map of the city of Houston, which has been in use since said date. We make from said map the following plat showing the property in controversy and its immediate surroundings:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

This suit was filed in September, 1902. Plaintiff in error testified that he took possession of a portion of the land in controversy on November 4, 1891, and inclosed it and had held possession thereof continually since said date, claiming it as his property. There was other testimony corroborative of the statements of plaintiff in error as to his possession of the property, and there was also evidence tending to contradict such statements. On April 25, 1896, the executor of the estate of C. M. Allen, in whom the title of A. C. and J. K. Allen had become vested, conveyed the land in controversy to Hildegarde Cocke, the wife of plaintiff in error. This deed was filed for record April 28, 1898, and duly recorded. On March 22, 1900, plaintiff in error, joined by his said wife, conveyed the land to T....