Cook v. Hutto
| Decision Date | 10 April 1941 |
| Docket Number | No. 4061.,4061. |
| Parties | COOK et al. v. HUTTO et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, San Patricio County; W. G. Gayle, Judge.
Action in trespass to try title by H. H. Hutto and others against Holman Cook and others. Judgment for plaintiffs, and defendants appeal.
Reversed and remanded.
Seale & Wood, of Corpus Christi, Joe Ternus, of Sinton, and M. A. Childers, of San Antonio, for appellants.
W. B. Moss, of Sinton, and Kelso, Locke & King, of San Antonio, for appellees.
This is an appeal from a judgment of the District Court of San Patricio County. Plaintiffs, H. H. Hutto and others, sued John Gollihar and others, as defendants, for certain tracts of land in San Patricio County. The trial was before a jury, the case submitted on one special issue, and judgment was in favor of the plaintiffs. From the judgment entered defendants have perfected this appeal.
The parties will be here designated as they were in the trial court.
The statement of the nature and result of the suit as made in the brief of defendants (appellants) is conceded by plaintiffs (appellees) to be substantially correct. Hence we shall substantially follow same.
This is a case in which plaintiffs set up the usual plea in trespass to try title and followed same by specific pleas of the three, five and ten year statutes of limitation. Their plea of the ten-year statutes alleges that "they and those whose title they hold have had peaceable and adverse possession of the lands and tenements described in their petition, etc., for more than ten years." No proof was offered in support of their pleas of three and five year limitations. One issue only was submitted to the jury, as follows: To this issue the jury answered "yes."
No allegation was made that plaintiffs were claiming as heirs of anyone. Their sole allegation of ownership under the ten-year statutes being that they and those whose title they hold had held peaceable and adverse possession for ten years, etc.
Plaintiffs offered evidence substantially as follows:
That in 1921 when C. V. Jones, who owned some adjacent lots to the lots involved in this litigation, fenced his lots he included in his enclosure the lots involved in this suit; that on October 24, 1923, C. V. Jones deeded his lots to S. Newman, and that Newman went into possession of all property within the enclosure, holding a deed, however, only for the Jones' lots, and holding no deed for the lots involved in this suit; that S. Newman died in 1925; that his wife died in 1937; that Mrs. Newman, either in person or by agents or tenants, adversely held the property from the date of her husband's death to her death in 1937; since the death of Mrs. Newman, plaintiffs, in person or by agent, have held adverse possession of the property.
There was evidence that plaintiffs, or at least some of them, were the heirs of S. Newman and of his wife. As before stated, there was no allegation in the petition of plaintiffs to this effect.
Defendants in their brief assert twelve assignments of error. These assignments are briefed under five propositions raising questions as to the exclusion of testimony, the failure of the court to give a proper definition of the term "adverse possession," the refusal of the court to submit issues on the acknowledgment of defendants' title by plaintiffs during the period of possession claimed by them to support limitation, and that the verdict was not supported by a preponderance of the evidence.
The most serious question is as to the exclusion of the testimony of defendant John Gollihar. Defendants sought to prove by the witness that, acting in his own behalf and on behalf of defendants Cook, Dupree, Skeen and Daffern, about 1924 he had a conversation with Sebe Newman, the father of some of the plaintiffs at least, with reference to the property in controversy, in which, in substance, Newman acknowledged that he did not own the property, and it was finally agreed that if Newman would pay the taxes on the property he should have the use thereof. This testimony was objected to by plaintiffs as being inadmissible by virtue of Article 3716, R.C.S.1925, the "dead man's statute." The objection was sustained, and defendants excepted to the ruling of the court.
In this action under the evidence plaintiffs had a right to tack successive adverse possession, provided there was the requisite privy between such possessions. Article 5516, Vernon's Annotated Civil Statutes. The privity of an estate referred to in the statute is not privity of title, but privity of possession. Moran v. Moseley, Tex.Civ.App., 164 S.W. 1093; McAnally v. Texas Co., Tex.Civ.App., 32 S.W.2d 947, affirmed 124 Tex. 196, 76 S.W.2d 997.
The case last cited is authority for the proposition that this privity of estate can arise by virtue of descent. From their father plaintiffs acquired no title to this land for the reason that at the time of his death he had acquired no title thereto. His status at best with reference to the property was that of a naked trespasser claiming title to the property. If his surviving wife had continued the adverse possession for the length of time sufficient, in connection with his prior possession, to have acquired title, the property would not have been community property, but her separate property. Bishop v. Lusk, 8 Tex. Civ.App. 30, 27 S.W. 306; Gafford v. Foster, 36 Tex.Civ.App. 56, 81 S.W. 63; Cook v. Houston Oil Co., Tex.Civ.App., 154 S.W. 279; Hawkins v. Stiles, Tex.Civ.App., 158 S.W. 1011.
Under the evidence, after the death of her husband Mrs. Newman continued the adverse possession for a short time in person, and thereafter maintained such possession through agents or tenants. It does not clearly appear whether in connection with this possession while she maintained same she claimed on behalf of herself and in behalf of her children likewise, or claimed the property individually. This we do not believe to be of controlling importance as to the question under consideration.
Under the issue as submitted the jury might reasonably commence the period of adverse possession with the possession of S. Newman and find that such adverse possession continued up until the time the suit was instituted.
The title asserted by plaintiffs was full legal title. The establishment of the cause of action asserted and submitted established a title of this character on their behalf. Article 5513, Vernon's Civil Statutes; Lynch Davidson & Co. v. Beasley, Tex.Civ.App., 128 S.W.2d 877.
Plaintiffs assert title acquired by them either by descent from their mother, or in part from that source; the other interest being acquired by their own adverse possession. This on the assumption that there had elapsed ten years adverse possession prior to the death of the mother.
We are of the opinion that plaintiffs neither sue as heirs of S. Newman nor does the judgment which was rendered, or which might have been rendered, affect them as heirs. For this reason the conditions under which Art. 3716 applies do not exist.
It is true that in a general sense plaintiffs were the heirs of S. Newman. It is likewise true that in the suit they relied upon no title acquired from S. Newman. The judgment entered or the judgment that might have been entered was or would be effective as to any title. But in order for the statute to apply in the litigation, some title derived from the deceased's ancestor must be in issue. In this case no title derived from their father was in issue, for he had none.
We have made such search as was practicable under the circumstances for an authoritative precedent under the facts presented here and have found none entirely satisfactory to us. The case of Power v. Jones, Tex.Civ.App., 135 S.W.2d 1054, in this connection has been carefully considered. In that case the administrator asserted the title which was vested in the deceased at the time of her death. It is true that title had not matured in the deceased at the time the transaction sought to be proved took place. The testimony admitted as to the transaction was held inadmissible but harmless, because a disregard thereof was attributed to the trial judge. The judgment of the trial court was in favor of the limitation claimant. From the facts as stated in the opinion it might be that even though the admissibility of the testimony were granted, there still existed a conflict in the testimony the determination of which was the exclusive province of the trial court. There was an application for writ of error in this case which was dismissed by the Supreme Court on the ground that the judgment was correct.
We do not believe the holding here conflicts with the holding of the Eastland Court in the case just discussed. There, a title was asserted vested in the deceased at the time of her death; here, title was never vested in deceased.
We are not unmindful of the far-reaching importance of this question, and have endeavored to give same careful consideration. We have borne in mind that the statute in question should be confined to its terms and not applied by construction to a situation not included in its terms. Roberts v. Yarboro & Wimberly, 41 Tex. 449; Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298, 239 S.W. 185; Lassiter v. Bouche, Tex.Com.App., 14 S.W.2d 808; Clemens v. Perry, Tex.Civ.App., 29 S.W.2d 529; Ladd v. Anderson, Tex.Civ.App., 89 S.W.2d 1041.
We hold that the testimony was admissible, and the exclusion thereof constitutes reversible error. In our opinion the...
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