Cowden v. Cowden

• Decision Date: 07 March 1945
• Docket Number: No. A-408.,A-408.
• Citation: Cowden v. Cowden, 186 S.W.2d 69, 143 Tex. 446 (Tex. 1945)
• Parties: COWDEN v. COWDEN.
• Court: Texas Supreme Court

186 S.W.2d 69

COWDEN v. COWDEN.

No. A-408.

Supreme Court of Texas.

March 7, 1945.

Rehearing Denied April 4, 1945.

Certified Questions from Court of Civil Appeals of Eighth Supreme Judicial District.

Trespass to try title by Edd Cowden against Jett Cowden and others for title and possession and damages to lands. From an order sustaining named defendant's plea of privilege, plaintiff appealed to the Court

of Civil Appeals at El Paso, which certified questions to the Supreme Court.

Questions answered in accordance with opinion.

Klapproth & Hamilton and Charles L. Klapproth, all of Midland, for appellant.

Vinson, Elkins, Weems & Francis and Tarlton Morrow, all of Houston, Stubbeman, McRae & Sealy, of Midland, and McGee & Tilley and Mark McGee, all of Fort Worth, for appellee.

BREWSTER, Commissioner.

This case is here on certified questions from the Court of Civil Appeals at El Paso, where it is pending on appeal from an order of the district court of Midland county sustaining a plea of privilege, with Edd Cowden as appellant and Jett Cowden as appellee.

Appellant sued appellee and Mr. and Mrs. J. W. Baker in the district court of Midland county in trespass to try title to recover the title and possession of 240 acres of land in Midland county and five sections in Ector county as well as a mineral interest in part of the Ector county land. He alleged unlawful entry upon an undivided one-half interest in the Midland county land by appellee and the Bakers and damages in the sum of $6200. He alleged unlawful entry upon the Ector county lands only by appellee and damages in the sum of $250,000. He alleged the annual rental value of an undivided one-half interest in the Midland county land was $500 and that the annual rental value of the Ector county land, including the mineral interest, was $7200. His prayer was for title and possession and for damages and rents. He further alleged, generally, that the community property rights of himself and appellee had never been adjudicated and prayed that the court determine those rights and enter judgment accordingly.

Appellee filed a disclaimer asserting "that she neither owns, claims nor asserts any right, title, interest or right of possession in or to" the Midland county land.

Then she filed a plea of privilege alleging that because of the disclaimer the only property as to which title and possession under trespass to try title are involved is the land in Ector county; hence that no exception to exclusive venue under Art. 1995, R.S.1925, Vernon's Ann.Civ.St. Art. 1995, applies, and the venue of the cause as to her should be transferred "to the court or courts having jurisdiction thereof."

Appellant controverted on the ground that his suit was for title and possession and damages to lands a part of which was situated in Midland county, within the meaning of exception 14 to Art. 1995, supra.

Appellee then amended her plea of privilege alleging that appellant had no interest or title in the Midland county land because it had come to her as her separate estate and she, joined by appellant, then her husband, had deeded it to the defendant J. W. Baker before this suit was filed. She alleged that appellant, therefore, had sued for the Midland county land falsely and fraudulently for the purpose of fixing venue in that county. She prayed that the cause be transferred to the district court of Travis county, where she lived, or, in the alternative, to the district court of Ector county.

Appellant denied these allegations, in proper form, by an amended controverting plea.

Appellee having abandoned her alternative plea to be sued in Ector county, the trial court ordered the cause, in so far as it involved a controversy between appellant and appellee, transferred to the district court of Travis county.

At the request of appellant the trial court filed findings of fact and conclusions of law. He found that appellant's cause of action was in trespass to try title and for damages and involved the title and possession of lands lying in Midland and Ector counties; that prior to the filing of this suit the Midland county land had been conveyed to appellee as her separate property and that she, joined by appellant, then her husband, had conveyed it to defendant J. W. Baker; that, therefore, only the defendants Baker were asserting title to it; that only appellee was asserting title to the Ector county land; and that the controversy as relating to land lying in Midland and Ector counties is severable. In response to the request of appellant for additional findings, the trial court found that appellant, "in filing and instituting this suit in the District Court of Midland County, Texas, did not allege the ownership of lands in Midland County, Texas, for the fraudulent purpose of fixing venue in the District Court of Midland County, Texas, but made such allegations and instituted such suit in Midland County in good faith."

The court of civil appeals reversed the judgment of the trial court and ordered judgment rendered overruling the plea of privilege. Then, as the certificate recites:

"On motion for rehearing appellee cited the case of Martin v. Robinson, 67 Tex. 368, 3 S.W. 550. We do not, of course, deem our proposed holding to conflict with that case, but it has raised doubts in our minds as to the correctness of our disposition of this appeal. In view of the fact that our jurisdiction is final in this matter, and that some of the questions posed by this appeal seem to be of first impression, we are certifying the following questions:

"No. 1: Did we err in holding that plaintiff Edd Cowden, having sued defendant Jett Cowden and two others for the title and possession of a tract of land in Midland County and Jett Cowden alone for another tract of land in Ector County, the claim of title to each tract being separate and distinct, that venue as to Mrs. Cowden was properly laid in Midland County as to each tract as against her plea of privilege to be sued in Travis County where she resided at all relevant times?

"Our construction of Sec. 14, Article 1995, being that it provided for such venue in either county.

"No. 2: As recited in the opinion, contemporaneously with the filing of her plea of privilege, Mrs. Cowden filed a disclaimer in the cause as to the Midland County lands. Plaintiff's petition claimed damages as to such lands for eviction and the withholding of possession. The evidence strongly tended to show that both Mr. and Mrs. Cowden had deeded all interest that either had in the Midland County land to defendant Jeff Baker. Did we err in holding that, despite the disclaimer, venue was maintained in Midland County as to each tract?

"In the event question No. 1 is deemed not to present an ultimate issue in the case, we respectfully request that the facts recited in connection with No. 2 be considered as an additional factual basis for No. 1.

"No. 3: If question No. 1 or question No. 2 be answered in the affirmative, then we desire to submit questions A and B.

"A: Should we have directed the trial court to retain jurisdiction as to the suit insofar as damages for eviction and withholding possession of the Midland County land were sought against Mrs. Cowden and for the purpose of entering judgment on the disclaimer?

"B: Did we err in reversing the judgment of the trial court transferring the suit to Travis County as to the title and possession of the Ector County land?

"No. 4: Did we err in reversing the judgment of the trial court transferring the cause to Travis County insofar as plaintiff sought as against Mrs. Cowden to establish and have declared a community interest in certain undescribed lands and certain unspecified personal property?

"No. 5: In the event question 1 or 2 be answered in the affirmative, should the trial court have acceded to the request, or any part thereof, of plaintiff that the cause be transferred to Ector County."

What a plaintiff must allege and prove in order to maintain his suit in a county other than that of defendant's domicile, over the latter's proper protest, has been denominated "venue facts" and defined as "those which are stated in the particular exception of article 1995 that is applicable or appropriate to the character of suit alleged in plaintiff's petition." Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, 93.

Applicable provisions of exception 14 which appellant invokes to maintain his suit in Midland county are: "Suits for the recovery of lands or damages thereto * * * must be brought in the county in which the land, or a part thereof, may lie." So the venue facts he had to establish were but two, namely, (1) that his was a suit for recovery of land and for damages thereto and (2) that a part of the land lay in Midland county. "What more proof should plaintiff be...