Conn v. Houston Oil Co.

• Decision Date: 16 January 1920
• Docket Number: (No. 525.)
• Citation: 218 S.W. 137
• Parties: CONN v. HOUSTON OIL CO. OF TEXAS et al.
• Court: Texas Court of Appeals

218 S.W. 137

CONN v. HOUSTON OIL CO. OF TEXAS et al.

(No. 525.)

Court of Civil Appeals of Texas. Beaumont.

January 16, 1920.

Appeal from District Court, Newton County; W. T. Davis, Judge.

Action by Mrs. S. N. Conn against the Houston Oil Company of Texas and others, which filed cross-action. From a judgment for defendants, plaintiff appeals. Affirmed.

Warren & Conn, of Houston, for appellant.

Kennerly, Williams, Lee & Hill, of Houston, for appellees.

WALKER, J.

This is an action in trespass to try title brought by the appellant, as sole devisee and independent executrix of the estate of R. C. Conn, deceased, in the district court of Newton county, Tex., on April 17, 1918, against the appellee, wherein appellant sought to recover 160 acres of land, a part of the Thomas S. McFarland survey, abstract No. 648, in Newton county, Tex. Appellant pleaded that she and those under whom she held and claimed had acquired the title to the land by the statutes of limitation of five and ten years. Appellee answered on July 28, 1918, by plea of not guilty and cross-action, wherein it claimed title to the land sued for, and appellee also pleaded the five and ten years' statutes of limitation. The case was tried on March 5, 1919, before the court without a jury, and resulted in judgment for appellant for 33 acres of the land sued for and for appellee for 127 acres of land. From this judgment appellant has appealed to this court.

In 1894 Isaac Hubbard and wife, Emma Hubbard, had surveyed out and moved upon 160 acres of land described in plaintiff's petition. They lived on this land and had their improvements thereon until about the latter part of 1906 or 1907, during which time they claimed said land. On August 7, 1908, Hubbard and wife acknowledged tenancy to appellee to the land described in its cross-action, which instrument was duly recorded August 19, 1908, in the deed records of Newton county. As in our judgment this instrument has nothing to do with the disposition of this case, we will not further discuss it. On the 26th of May, 1906, Ike Hubbard and wife executed their deed to B. E. Moore, conveying to him an undivided one-half of the merchantable pine timber on the 160 acres described in plaintiff's petition; said deed containing the following covenants:

"It is expressly agreed and understood that the said B. E. Moore shall have until the first day of January, 1912, to cut and remove all said timber off said land and for the purpose of so cutting and removing said timber we hereby expressly give to him, his heirs and assigns, the right and privilege to enter upon any part of said 160 acres of land, construct and build tramroads or roads, and to do and construct other necessary things to be done for the purpose of removing said timber, and when said timber is so removed or improvements so placed for the removal of said timber shall be removed by said Moore if he so desires, it being understood that when said timber is so removed that it is contemplated herein that the right of said Moore to occupy said land shall cease.

"To have and to hold the above-described premises and timber on said 80 acres of land, together with all and singular the rights and appurtenances thereto in anywise belonging unto the said B. E. Moore, his heirs and assigns forever, and we, Ike Hubbard and Emma Hubbard, do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the premises to the said B. E. Moore, his heirs and assigns against every person whomsoever lawfully claiming or to claim the same, or any part thereof."

On the 28th day of September, 1908, Charles Dillingham, receiver of Houston Oil Company of Texas, in the United States District Court for the Southern District of Texas, at Houston, recovered judgment against Ike Hubbard and his wife, Emma Hubbard, for the title and possession of the lands described in appellee's cross-action; said decree in part being as follows:

"It is further ordered, adjudged, and decreed by the court that the complainant, Charles Dillingham, as receiver of the Houston Oil Company of Texas, and the Houston Oil Company of Texas, do recover of and from the defendants Isaac Hubbard and his wife, Emma Hubbard, Green Young and his wife, Geneva Young, and C. C. Wightman, the title to and the possession of the following described tracts or parcels of land, to wit (describing two tracts of land, including that in controversy). * * *

"It is further ordered, adjudged, and decreed by the court that the title of the Houston Oil Company to the above-described tracts of land and the timber growing thereon be, and the same is, hereby forever quieted against said defendants; and said defendants, their agents, servants, and employés, are hereby perpetually enjoined from asserting any further title to said land or the timber growing thereon, or the improvements thereon, and from cutting, destroying, or removing the timber upon said land therefrom, and from further trespassing upon said land, or remaining in possession thereof, and from further interfering with said receiver of the Houston Oil Company of Texas in the possession, management, and control of said land and the timber growing thereon, and from hindering or interfering with the receivers of the Kirby Lumber Company in cutting and removing the timber growing upon said land therefrom."

At the time this judgment was rendered against said Hubbard and wife, they were in possession of this land and remained continuously in possession thereof until possession was delivered by them to their vendees, and, as hereinafter shown, these vendees remained in possession of this land until the time this suit was filed, and also until appellee filed its cross-action.

On the 27th of August, 1912, Hubbard and wife executed their deed to the said Moore, conveying to him all of the 160 acres of land described in plaintiff's petition. On the 20th of March, 1913, said B. E. Moore and the said Ike Hubbard and the said Emma Hubbard executed a deed to R. C. Conn, conveying to him all of the 160 acres described in plaintiff's petition. This deed was duly recorded in the deed records of Newton county, Tex., on March 23, 1913. Just prior to or immediately after the recording of the deed from Moore and the Hubbards to Conn, the latter entered into possession of the 160 acres of land by tenant, and continuously cultivated, used, and enjoyed said land and remained in possession thereof and was in possession thereof continuously until this suit was filed.

As to the payment of taxes by Conn under his possession, we make the following statement from appellee's brief:

It was agreed that in Newton county there are three T. S. McFarland surveys; the T. S. McFarland labor being abstract No. 296, another T. S. McFarland survey being abstract No. 290, and the T. S. McFarland...