Daugherty v. Manning

• Decision Date: 07 April 1920
• Docket Number: (No. 6378.)
• Citation: 221 S.W. 983
• Parties: DAUGHERTY v. MANNING et al.
• Court: Texas Court of Appeals

Page 983

221 S.W. 983

DAUGHERTY v. MANNING et al.

(No. 6378.)

Court of Civil Appeals of Texas, San Antonio.

April 7, 1920.

On Motion for Rehearing, May 12, 1920.

Appeal from District Court, Travis County; Ireland Graves, Judge.

Suit by Mrs. Rebecca M. Manning against Mrs. Emma Johnson and others, in which the defendant named filed a cross-action against W. J. Daugherty and others. From a judgment against him, Daugherty appeals. Reformed and affirmed on rehearing.

M. G. Cox, of Cameron, for appellant.

John C. Read, of Dallas, and Black & Smedley, of Austin, for appellees.

COBBS, J.

The plaintiff, Mrs. Manning, sued the defendant Mrs. Emma Johnson, T. S. Henderson, and E. D. Tompkins for the title and possession of the 122 acres of land herein referred to. The petition is in the ordinary form of trespass to try title, and the prayer is for title and possession and for damages for the use of the land.

The answer of the defendant, Mrs. Emma Johnson, consisted of a plea of not guilty, a plea of title by limitation under the three, five, and ten year statute, and a plea that, by reason of the construction of a fence, acquiescence in the fence as the boundary line, etc., the plaintiff was estopped from claiming that the fence was not on the division line between the two tracts. The defendant Mrs. Johnson, by cross-action, sued W. J. Daugherty, T. S. Henderson, E. D. Tompkins, Joe G. Jester, and L. M. Morrow, for recovery upon their warranties of title in the event plaintiff received the land. The defendants T. S. Henderson and E. D. Tompkins answered by a plea of not guilty and by adopting the answer of their codefendant Mrs. Johnson, and they filed a cross-action against W. J. Daugherty for recovery on his warranty in the event plaintiff recovered the land. The defendant W. J. Daugherty, in his answer, filed a plea of not guilty and adopted the answer of his codefendant Mrs. Johnson.

The plaintiff, in her supplemental petition, set up many special exceptions to the answers of the defendants, and denied the allegations contained in the answers, and for special reply to the several pleas of limitation filed by the defendants alleged that plaintiff was the owner of the land sued for and acquired the same under a deed executed by David Eppright and wife to Martha Ann Riggle on November 30, 1876, by which the land was conveyed to Martha Ann Riggle on November 30, 1876, by which the land was conveyed to Martha Riggle for and during her life, and in which deed it was provided that the remainder of the estate in the land conveyed by the deed should become the absolute property of the children of the said Martha Ann Riggle or their descendants; that by this deed a life estate was created in the land in Martha Ann Riggle, with remainder in her children living at her death and in the descendants of such of her children as might be dead at death; that said Martha Ann Riggle died on or about August 17, 1909, and that plaintiff was the only child of Martha Ann Riggle, and at the time of the death of Martha Ann Riggle there was no child living other than plaintiff and there was no descendant of any deceased child; and that, by reason of the foregoing facts, limitation did not begin to run against plaintiff during the life of Martha Ann Riggle. In her supplemental petition plaintiff also, for special reply to that part of the answers of the defendants alleging the establishment of a boundary line by estoppel, etc., denied that she had ever represented the fence described in the answer to be the boundary line or that she had acquiesced in it as such line; and said further that if Martha Ann Riggle or her husband, or either of them, had acquiesced in such fence line as a boundary line, their acts were not binding upon plaintiff and could in no way affect or change the boundary line of her land, for the reason that at the time of said alleged acts and representations on the part of Martha Ann Riggle and her husband the said Martha Ann Riggle owned only a life estate in the land, with remainder in the plaintiff.

The case was tried before the court, without a jury, and findings of fact and conclusions of law were filed, and there is no statement of facts with the record.

"The court on May 28, 1919, rendered judgment for plaintiff, Mrs. Manning, for the title and possession of 70.8 acres of land more or less, part of that described in plaintiffs' petition, as described by metes and bounds in the judgment, and finds that the true division line between the tract of land claimed and owned by Mrs. Manning and the tract claimed and owned by Mrs. Emma Johnson be established as stated in the judgment, and rendered judgment in favor of Mrs. Manning against Mrs. Emma Johnson for $275 damages, but that she do not recover damages against the other defendants. The court further decreed that the defendant Mrs. Emma Johnson recover of W. J. Daugherty, E. D. Tompkins, T. S. Henderson, Joe G. Jester, and L. M. Morrow jointly and severally the sum of $5,939, with 6 per cent. interest per annum thereon from date of judgment, and that the defendants T. S. Henderson and E. D. Tompkins do have and recover of and from the defendant W. J. Daugherty the sum of $5,939, with 6 per cent. interest thereon from date of judgment, and rendered judgment for costs in favor of plaintiff against Mrs. Emma Johnson, T. S. Henderson, and E. D. Tompkins, and in favor of Mrs. Emma Johnson, on her cross-action, against W. J. Daugherty, T. S. Henderson, E. D. Tompkins, Joe G. Jester, and L. M. Morrow, for all costs of court by her in this behalf expended or incurred, and that T. S. Henderson and E. D. Tompkins do have and recover of and from W. J. Daugherty all costs of court in this behalf expended or incurred."

The first assignment presents the claim that the court erred in not holding appellant was entitled to recover the land under the plea of the statute of five-year limitation. The undisputed facts are that the five-year limitation title would have been complete in all of its elements except for the period of time it was not registered. Prior to January 1, 1913, the date when Jester acquired possession, the possession of defendants and their privies under deeds duly registered, accompanied by the other requisites of the five-year statute of limitation, had not been held for a period of five years, nor had such possession been held subsequently to the registration of the Jester deed June 5, 1913, and before the commencement of this suit. This suit was filed on the 16th of November, 1917. The first deed under which defendant's possession was held was duly registered on the 6th of February, 1912, and the registration and possession was continuous in defendant Johnson and her privies from that date until the filing of the suit, a period of 5 years and about 9 1/5 months, with the exception of the break in the registration from the 1st of January, 1913, to the 5th of June, 1913, a period of about 5 months.

In order to acquire by the statute of limitation the "full title" (R. S. art. 5679) to another's land, all the requirements of the statute must be strictly complied with. (1) "There must be peaceable, adverse possession thereof, cultivating, using or enjoying same," and (2) "paying taxes thereon," and (3) "claiming under a deed or deeds duly registered." The statute itself makes no distinction in the several requirements; there are no degrees of excuse permitted in the failure of performance of the one or the other. They are all of the same dignity, and if there is any excuse allowed for the nonperformance of any one of them it grows out of the relief granted by the courts in the exercise of some equitable power to excuse, based upon a real and very sound principle, appealing to the court. In this case there was a period only of about four years five months and eleven days of actual possession under registered deeds, under claim of limitation title, a break of about five months lacking to complete the statutory requirement of registration. The excuse offered is:

"When the sale was finally consummated, about January 1, 1913, August Free delivered to Jester a batch of old recorded title papers, and among them was the unrecorded deed. It was understood that August Free was to record certain papers, and Jester supposed that such papers as should be recorded, including the deed, would be filed for record by Free. In the early part of June, 1913, however, in going over the papers which Free had delivered to him, Jester discovered the deed and, perceiving that it had not been recorded, he immediately filed same for record."

In Gillum v. Fuqua, 61 S. W. 939, this court said:

"All of the incidents mentioned in the statute must concur and be continued for the time prescribed, in order to complete the bar of the statute."

In William Cameron Co. v. Collier, 153 S. W. 1178, it was held a period of nine months' delay in registering constituted an unreasonable break, and the court said:

"It is well settled that all of the requirements of the statute must be concurrent; and, unless the deed under which the occupant claims is of record during all of the time of his occupancy necessary to complete the five-year period, the requisites of the statute are not met. The evidence being undisputed upon this issue, the court did not err in not submitting it to the jury. The question of Daniels having a reasonable time after procuring his deed to file it for record cannot arise, when the time in which he allowed it to remain unrecorded is as long as is shown by this record. The following cases sustain the action of the court in refusing to submit the issue of limitation: Medlin v. Wilkins, 60 Tex. 418; Porter v. Chronister, 58 Tex. 56; Cook v. Dennis, 61 Tex. 248; Heflin v. Burns, 70 Tex. 353, 8 S. W. 48; Cobb v. Robertson, 99 Tex. 138, 86 S. W. 746, 87 S. W. 1148, 122 Am. St. Rep. 609; Van Sickle v. Catlett, 75 Tex. 409, 13 S. W. 31; Sorley v. Matlock, 79 Tex. 307, 15 S. W....