Cuniff v. Bernard Corporation, 2783.

• Decision Date: 01 May 1936
• Docket Number: No. 2783.,2783.
• Citation: 94 S.W.2d 577
• Parties: CUNIFF et ux. v. BERNARD CORPORATION.
• Court: Texas Court of Appeals

Page 577

94 S.W.2d 577

CUNIFF et ux. v. BERNARD CORPORATION.

No. 2783.

Court of Civil Appeals of Texas. Beaumont.

May 1, 1936.

Rehearing Denied May 27, 1936.

Error from District Court, Hardin County; Thos. B. Coe, Judge.

Action by O. T. Cuniff and wife against the Bernard Corporation. Judgment for defendant, and plaintiffs bring error.

Affirmed.

Oliver J. Todd and W. D. Gordon, both of Beaumont, for plaintiffs in error.

Lawler, Wood & Childress, of Houston, for defendant in error.

COMBS, Justice.

Plaintiff in error O. T. Cuniff and wife, Lizzie Cuniff, brought this suit in district court of Hardin county, Tex., in the form of an action in trespass to try title to recover blocks 1, 2, and 3 and the northwest one-fourth of block No. 6 of the R. S. Sterling subdivision of H. T. & B. Railroad Company survey No. 69. The only title asserted by the plaintiffs was the 10-year statute of limitations, which they specifically pleaded. The plaintiffs' possession was continuous for more than 10 years, exclusive of 7 or 8 months that plaintiffs were out of the state, and the appropriation and use of the land by the plaintiffs were sufficient to mature limitation title in them unless the adverse character of their possession was destroyed by recognition of the defendant's title during the claimed limitation period.

The appellant O. T. Cuniff contends that his alleged admissions of title related to lands lying outside of his inclosure and not involved in this suit and also that the admissions, if made, were made to R. S. Sterling at a time when he was not the owner. In September of 1913 R. S. Sterling, the then record owner, subdivided about three-fourths of H. T. & B. section 69 into thirteen tracts, or blocks, and filed a plat thereof as the R. S. Sterling subdivision of the H. T. & B. Railroad Company survey No. 69. In December of that year he transferred the property to the R. S. Sterling Investment Company, which company thereafter sold several tracts, retaining title to the balance, including the land in controversy, until 1927, when it was transferred to the Sterling Properties, a corporation. In February of 1933 the Sour Lake State Bank acquired the property at trustee's sale, and in November, 1933, conveyed it to the appellee, the Bernard Corporation. In 1919 the R. S. Sterling Investment Company conveyed about 72 acres of the land out of the subdivision to plaintiff O. T. Cuniff, who went into possession. During the summer of 1922 Cuniff fenced two pastures for his stock, referred to as the big and the little pasture, and included in them some of his own land, some land that he had leased from others, and also included within the fences the tracts of land involved in this suit. The claimed limitation period began at that time, and the possession continued until shortly before the filing of this suit in 1934. The defendant offered a mass of evidence from various witnesses tending to show that the plaintiff O. T. Cuniff had repeatedly, during the claimed limitation period, negotiated with R. S. Sterling concerning pasture leases on the land in controversy, and that he had repeatedly stated to Mr. Sterling and to a number of the witnesses that the lands in question belonged to Sterling. Also a number of letters exchanged between R. S. Sterling and O. T. Cuniff, tending to show recognition of title, were introduced in evidence. Mr. Cuniff admitted some of the negotiations with Mr. Sterling, but he said that the negotiations and statements as to title related to lands which lay outside of his inclosures and were not intended at any time to be a recognition of Mr. Sterling's title to the lands which were inclosed in his pastures and which are sued for in this case. With respect to each of the three tracts involved in this suit, the trial court submitted a general issue of 10-year limitation and the jury, in each instance, answered the same in favor of the plaintiffs. With respect to the recognition of title, the trial judge submitted to the jury the following issue in connection with each of the general issues, and in each instance the jury answered "yes": "Do you find from a preponderance of the evidence that O. T. Cuniff at any time within the said period of ten years therein found by you admitted, acknowledged or recognized by his words, acts or deeds that R. S. Sterling, R. S. Sterling Investment Company or Sour Lake State Bank was the owner of the land referred to therein?"

There was also evidence that the plaintiff Cuniff requested an oil and gas lease on the land in controversy in 1925. Under the evidence there was an issue of fact as to whether Cuniff made the request for the lease, and, if so, whether it related to the land in controversy, and in connection with that matter the court submitted the following issue: "Do you find from the preponderance of the evidence that defendant O. T. Cuniff in 1925 requested an oil and gas lease on the land in controversy"; to which the jury answered "yes".

The defendant also introduced in evidence a letter, reading as follows:

                                      "Sour Lake, Texas
                                      "Sept, 15-25
                

"Mr. R. S. Sterling, Houston, Texas.

"Dear Mr. Sterling: I am sending you today a mape of your land in Section 69, The location that Mr. Carpenter and I like best is the north line of block 6 and of course others interested would want the location on land that we are getting at one eaight royalty now I wonder if you will be a good fellow and give us Block 6 which contains 30 acres at an eaight royalty and the balance you let us have at a 6 royalty you may hold 10 acres out of Block 6 and give us the northwest 20. But if you should not feel like doing this send us your lease as agreed and we will fight out the location between ourselves. I remain,

                     "Respectfully yours
                                         "O. T. Cuniff."
                

The evidence showed that the letter was written by Mrs. Cuniff. She testified that she wrote the letter and signed her husband's name to it; that she usually wrote his letters, but that he gave her no particular instruction about what to put in this particular letter; that this letter was written at the instance of two other parties who were endeavoring to block up an oil lease and who enlisted Mr. Cuniff's efforts to obtain the lease because he knew Mr. Sterling. With respect to the letter the court submitted to the jury the following issue: "Do you find from a preponderance of the evidence that O. T. Cuniff authorized and directed his wife, Lizzie Cuniff, to write to R. S. Sterling the letter dated September 15, 1925, which was introduced in evidence as Exhibit No. 25"; to which the jury answered "Yes."

The plaintiffs objected to the submission of the special issues relating to recognition on the ground they were not raised by the pleadings, and also that they were not raised by the evidence. They later moved for a verdict non obstante veredicto on the same grounds. However, the trial court overruled the objections and the motion for verdict, and entered a judgment in favor of the defendant that the plaintiffs take nothing.

Appellants contend, first, that the issues relating to the recognition of appellee's title were not raised by the pleadings. As we understand appellants' contention, it is that recognition of title by a limitation claimant is a special defense, which must be specifically pleaded to be available. Such, we think, is not the rule. It was an essential element of the plaintiffs' plea of title by limitation that the possession relied upon by them be adverse. In pleading title by adverse possession under the limitation statute, they necessarily averred as an element of such plea that they had not, during the limitation period, recognized the title of the defendant. Vernon's Ann.Civ.St. art. 5515; Smith v. Robertson (Tex.Com. App.) 235 S.W. 847; Houston Oil Co. v. Jones, 109 Tex. 89, 198 S.W. 290. We think it is now unquestionably the general rule that the general denial allows the introduction by the defendant of any evidence, not otherwise inadmissible, which has the effect of directly rebutting the plaintiff's allegations, or which by reasonable inference infer or argue the nonexistence of the facts relied on by the plaintiff. Winn v. Gilmer, 81 Tex. 345, 16 S.W. 1058; Southern Kansas Railway Co. v. Wallace (Tex.Com.App.) 206 S.W. 505; Colorado & S. Ry. Co. v. Rowe (Tex.Com. App.) 238 S.W. 908; Horton & Horton v. House (Tex.Com.App.) 29 S.W.(2d) 984; Rosenthal Dry Goods Co. v. Hillebrandt (Tex.Com.App.) 7 S.W.(2d) 521. In actions of trespass to try title, claim for allowance for improvements in good faith and the defense of limitation are required by statute to be specifically pleaded. Vernon's Ann.Civ.St. arts. 7372, 7373. For an interesting discussion of the function of the general denial see 7 Tex.Law Review, p. 345 et seq. The issue was therefore raised by the general denial. Beason v. Williams (Tex.Civ.App.) 229 S.W. 963; Smith v. Adoue & Lobit (Tex.Civ.App.) 154 S.W. 258; Southwestern Lumber Co. of N. J. v. Allison (Tex.Civ.App.) 261 S.W. 1085; Whitaker v. Thayer, 38 Tex.Civ.App. 537, 86 S.W. 364; Texas Western Ry. Co. v. Wilson, 83 Tex. 153, 157, 18 S.W. 325.

Appellants next contend that the issues concerning recognition of title were merely evidentiary in their nature, that the general issues of adverse possession and limitation submitted by the court were the only ultimate issues in the case, and that the issues of recognition should not have been submitted to the jury. This submission was duly excepted to by the appellants on that ground, and appellants also made a motion for judgment non obstante veredicto. We think this contention is also without merit. We think it is too well settled by the decisions of our courts to admit of argument that recognition of an owner's title by a limitation claimant during the limitation period is fatal to a limitation claim. Houston Oil Co. v. Pullen (Tex. Com.App.) 272 S.W. 439; ...