Cook v. Spivey

• Decision Date: 11 October 1943
• Docket Number: No. 5576.,5576.
• Citation: 174 S.W.2d 634
• Parties: COOK v. SPIVEY et al.
• Court: Texas Court of Appeals

174 S.W.2d 634

COOK v. SPIVEY et al.

No. 5576.

Court of Civil Appeals of Texas. Amarillo.

October 11, 1943.

Appeal from District Court, Hansford County; Jack Allen, Judge.

Suit in trespass to try title by J. H. Spivey, as executor of the last will and testament of Lura Spivey, deceased, and others, against W. U. Cook to recover title and possession of land. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Sanders & Scott, of Amarillo (A. P. Smith, of Amarillo, of counsel), for appellant.

Frank M. Tatum, of Dalhart (R. A. Stone, of Amarillo, of counsel), for appellees.

STOKES, Justice.

This is a suit in trespass to try title filed by the appellees, J. H. Spivey, as executor of the last will and testament of Lura Spivey, deceased, and Ernest C. Spivey, Robert Spivey, their three sisters, Alice Spivey Walker, Anna Reynolds, and Jeffie Ganey, joined by their husbands, and May Josephine Hughes, a widow, and Luda Hughes, a feme sole, against the appellant, W. U. Cook, seeking to recover the title and possession of 29.95 acres of land located in Hansford County. In addition to the statutory allegations, appellees pleaded the three-, five-, ten-, and twenty-five-year statutes of limitations and adverse possession, under Articles 5507, 5509, 5510, and 5519, R.C.S. 1925, Vernon's Ann.Civ.St. arts. 5507, 5509, 5510, 5519.

Appellant answered by a general denial, and also set up title in himself under the three-, five-, and ten-year statutes of limitations and adverse possession.

At the close of the testimony, appellant, through his counsel, in open court admitted that, if the rulings of the court on the evidence introduced by appellees as to the location of the land and its boundary lines were correct, appellees had shown themselves entitled to recover under the undisputed evidence, unless appellant was entitled to recover under his pleas of ten-years limitation and adverse possession, and that, as to such pleas, the burden of proof was upon him. The court thereupon submitted to the jury a single special issue in which they were required to find whether appellant had been in peaceable and adverse possession of the 29.95 acres in controversy for a period of ten years prior to March 16, 1940. The jury answered the special issue in the negative and the court rendered judgment in favor of the appellees, plaintiffs below, from which the appellant has perfected an appeal to this Court.

No question is raised concerning the rulings of the court on the evidence as to the location and boundary lines of the land in controversy, nor is any complaint presented concerning the manner in which the court submitted the case to the jury. After the verdict was returned by the jury, but before the court rendered judgment, appellant presented and urged a motion to declare a mistrial because of the absence of necessary parties, contending that John H. Spivey in his individual capacity, George B. Spivey, Joe R. Spivey, and the heirs of S. R. Spivey, deceased, and of W. G. Spivey, deceased, were necessary and indispensable parties to the suit. The court overruled the motion and appellant duly preserved his exception thereto. After the verdict was received, appellant filed and urged a motion for a new trial, which was overruled, and he presents the case in this Court upon two propositions in which he contends, first, that the court committed reversible error in overruling his motion to declare a mistrial, and, secondly, that the court erred in rendering judgment that plaintiffs recover the fee simple title to the land, when the record shows that the absent parties named in his motion to declare a mistrial owned undivided interests amounting to 5/24 of the land involved.

The record shows that I. T. Spivey and Lura Spivey were married some time prior to 1901. I. T. Spivey was then a widower, and W. G., George B., Joe R., S. R., and John H. Spivey were his children by his former marriage. Ten children were born of I. T. Spivey's marriage to Lura Spivey, seven of whom are still living. By her last will and testament, Lura Spivey bequeathed to the seven surviving children all of her interest in the land, and they, with John H. Spivey, as executor of Lura Spivey's will, constituted the plaintiffs in the case. S. R. and W. G. Spivey, two of the five children of I. T. Spivey's first marriage, were deceased at the time the suit was filed. Neither John H. Spivey, in his individual capacity, nor his brothers, G. B. and Joe R. Spivey, nor the heirs of his deceased brothers, S. R. and W. G. Spivey, were made parties to the suit, and it is the contention of appellant that his motion to declare a mistrial should have been granted because of their absence.

Generally speaking, it is elementary, and has been held by a long line of decisions of the courts of this State, that all persons who have or claim an interest in the subject matter of a suit, which interest necessarily will be affected by any judgment that may be rendered, are not only proper, but are necessary and indispensable parties, either plaintiff or defendant. McDonald v. Simons, Tex.Com.App., 280 S.W. 571. It is also well settled, however, that each and all of the tenants in common of a tract of land are entitled to possession, and the possession of one is not adverse to that of any of the others in the absence of the element of antagonism and notice. The record in this case shows that the tract of land involved was acquired by I. T. Spivey after his marriage to his second wife, Lura Spivey. It was therefore community property between them. I. T. Spivey died intestate in 1909, and his wife, Lura Spivey, subsequently died, the date of her death not being shown by the record. Lura Spivey left a will in which she appointed John H. Spivey, one of the children of I. T. Spivey and his first wife, independent executor of her estate, and bequeathed all of her property to the seven surviving children of herself and I. T. Spivey. Thus it will be seen that each of the five children of I. T. Spivey and his first wife owned a 1/24 interest in the land, while the children of the second marriage owned equal shares as heirs of their father, and in addition thereto became the owners of the mother's one-half interest in all of it under her last will and testament. All of the children, both of the first and second marriage, were therefore tenants in common. Appellant does not contend that he owns any interest in the land unless he had perfected a title by limitations and adverse possession. Consequently he was a trespasser unless he was entitled to prevail under his plea of limitations. In no sense, therefore, can it be said that he was a cotenant, because if he owned any part of the land, he owned all of it, and his claim was adverse both to the interests of the children of I. T. Spivey's second...