Crump v. Andress

• Decision Date: 10 December 1925
• Docket Number: (No. 562-4308.)
• Citation: 278 S.W. 422
• Parties: CRUMP v. ANDRESS et al.
• Court: Texas Supreme Court

Page 422

278 S.W. 422

CRUMP v. ANDRESS et al.

(No. 562-4308.)

Commission of Appeals of Texas, Section B.

December 10, 1925.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Action by S. D. Andress and others against E. M. Crump. Judgment for plaintiffs was affirmed by the Court of Civil Appeals (265 S. W. 1074), and defendant brings error. Reversed and remanded.

Bryan & Maxwell and Sam E. Stratton, all of Waco, and Chas. L. Black, of Austin, for plaintiff in error.

Jno. B. McNamara, Sleeper, Boynton & Kendall, and W. H. Jenkins, all of Waco, for defendants in error.

POWELL, P. J.

The 200 acres of land, title to which is involved in this case, belonged to J. P. Clements originally. In 1870, he married Mattie Martin, and they occupied the land as a homestead. To them three children were born. On October 18, 1875, J. P. Clements died. His widow and children continued in possession of the 200 acres. In 1881, the widow Clements married one T. B. Crump. She and Crump lived on the 200 acres until 1888, when he died. Mattie Crump and T. B. Crump had three children also. A few years after the death of T. B. Crump, his widow moved onto a tract of land which the three Clements children had bought, to which tract of land we shall hereafter refer more particularly, and known as the Sprague tract of 350 acres. After remaining on the Sprague tract for about five years, the widow moved back on the 200 acres in 1896. In 1898, she married her third husband, one S. H. Crump, and they lived on the 200 acres until 1920. At that time, she and S. H. Crump left the 200 acres and moved onto a tract owned by the latter. In 1921, Mattie Martin-Clements-Crump-Crump conveyed the 200 acres to E. M. Crump.

In addition to aforesaid statement, we now quote from the Court of Civil Appeals as follows:

"When Mrs. Mattie Crump abandoned the 200 acres as her home in 1920 and conveyed same to E. M. Crump, appellees brought this suit for the land, claiming same as the children of J. P. Clements. After the suit was brought, Mattie Crump died, and the executor of her will was made a party defendant. The question involved is as to whether appellees, as the heirs of J. P. Clements, are entitled to the property, or whether the property belonged to Mattie Crump, his wife, and through her descended by deed and will to her children by T. B. Crump. Appellant claims the title to the property as the heir of Mattie Clements Crump and also by limitation and by deed from Mattie Crump. The cause was tried to a jury, and the court submitted only the following issue: `Did Mrs. Mattie Crump, at the time she moved off of the 200-acre tract onto the Sprague tract, or at any time while she was living on the Sprague tract, have the fixed intention of never returning to and living on the 200-acre tract as a home?' to which the jury answered, `No,' and based upon said verdict and other findings by the court, the court entered judgment for the appellees for thirty-two forty-seconds of the land and for thirty-two forty-seconds of $2,400 rent for the years 1922 and 1923, from which E. M. Crump has appealed."

The Court of Civil Appeals, Chief Justice Gallagher not sitting, affirmed the judgment of the District Court. See 265 S. W. 1074.

E. M. Crump undertook to claim title to this land, under his mother. His mother claimed absolute and independent title to it in two ways: In the first place, under a deed from Mary N. Clements, who, before the death of J. P. Clements, had sued the latter, not only for the 200 acres here involved, but other tracts of land as well. In the second place, under a parol partition between Mattie Clements Crump and the three children she had by J. P. Clements. We will now discuss these two titles in their order.

In connection with the deed from Mary N. Clements, E. M. Crump claims title by limitation, contending that his mother had held adverse possession of said land from January, 1876, the date of the Mary N. Clements deed to her, until 1920, except for the five years, 1891 to 1896, when she was on the Sprague tract. In fact, there is no contention so far as this case is concerned that the Mary N. Clements deed actually conveyed a good title. But it is contended that the mother of plaintiff in error did gain title by limitations under that deed and the adverse possession in connection therewith. This is conceded by all parties to be true if her possession was adverse. Was it adverse? Defendants in error contend that they could not sue the widow of J. P. Clements until she abandoned possession of the 200 acres, and that the statute did not begin to run until 1920. In other words, it seems to be contended that one who is entitled to possession because of a homestead right cannot repudiate that right and claim the right of possession under an independent deed or title. In contravention of this doctrine, counsel for plaintiff in error, in their application, affirmatively answer their own question propounded as follows:

"The legal question involved here is this: Where the widow purchases an independent title, believed and asserted by her to be good, and bases her right to the possession of land solely upon such title, and denies and repudiates any privity of title with the heirs or remaindermen, does this not start the running of the statute of limitations in her favor?"

These same counsel rely mainly upon the opinion of the Supreme Court of Texas in the case of Humphreys v. Edwards, 89 Tex. 512, 36 S. W. 333, 434. We think this case is directly in point, and there is evidence in the record authorizing the submission of this issue to the jury. Counsel prepared and asked that appropriate issues in this connection be submitted to the jury. Their request was refused. In our judgment, this action was erroneous.

In the case of Humphreys v. Edwards, supra, the Court of Civil Appeals said:

"Under appellants' seventh assignment of error they complain that the court gave the following instruction requested by the plaintiffs below, to wit: `The jury is here charged that, if they believe from the evidence that after the death of M. J. Humphreys his widow assumed the sole and full possession of the 202 acres of land in controversy, and at the time of assuming such control she acknowledged the interest of plaintiffs, as heirs of her deceased husband, then no limitation would begin to run in her favor because of her entire control, until she in some way gave notice to plaintiffs that their interest in the land was denied by her; and the burden of proof in such case would be upon the defendants pleading ten years' limitation to show, first, that such widow then in possession claimed the entire title as against plaintiffs; and, second, to show that a knowledge was brought home to plaintiffs that she claimed the entire title as against them, and, in the absence of such, defendants could not recover on their plea of ten years' limitation.' It was claimed by the appellees that M. J. Humphreys, as the heir of Geo. P. Humphreys, deceased, acquired all the land, that at his death he left his widow, who was entitled to the use of the property as her homestead, and that appellees, as heirs, were entitled to a portion of it. They claimed that the possession of the land by the widow as her homestead was not adverse, and that neither she nor a tenant holding under her could set the statute of limitation in motion against them without some open, notorious hostile act, indicating an exclusive claim as against them. This far, the idea presented in the charge would be proper; but, if it should be conceded from the wording of the charge that it was necessary to bring home to them direct notice of her adverse claim it would be erroneous. As the case must be reversed and remanded upon other grounds, we would suggest that this charge should be so modified as to present these views plainly, without leaving it open to the interpretation that actual, direct notice is required. Cryer v. Andrews, 11 Tex. 181; Alexander v. Kennedy, 19 Tex. 496 ; Gilkey v. Peeler, 22 Tex. 668; same case, 27 Tex. 355; Church v. Waggoner, 78 Tex. 203 ."

The Supreme Court, speaking through Chief Justice Gaines, referring to the opinion just quoted by us, said:

"This is a writ of error to a judgment which reversed the judgment of the trial court and remanded the cause. In order to give this court jurisdiction, it was alleged in the petition for the writ of error that the decision of the Court of Civil Appeals practically settles the case. We have carefully examined the case and have found no error in the rulings of that court. We refer to the able opinion of the Chief Justice, who spoke for the court, for the grounds upon which our conclusions are based."

This holding in the Edwards Case has been cited with approval in Tiffany on Real Property (2d Ed.) vol. 2, p. 203. The author also cites other cases. The same conclusion is reached in the case of Reno v. Blackburn (Ky.) 72 S. W. 775. See, also, Criswell v. Criswell, 101 Neb. 349, 163 N. W. 302, L. R. A. 1917E, 1103, and Russell v. Tipton, 193 Ky. 305, 235 S. W. 763. These cases are sound, it seems to us.

It is true that a widow has the right of possession under her homestead claim. But there is no law in our state which says that she may not, at her pleasure, repudiate such possession and base her continued possession thereafter upon some independent title. She paid $400 of her own insurance money in 1876, two or three months after her first husband's death, for the deed from Mary N. Clements. She took the deed in her own name. Not only so, but she recorded it immediately. Not only that,...