Davis v. Gale
| Decision Date | 06 January 1960 |
| Docket Number | No. A-7172,A-7172 |
| Citation | 330 S.W.2d 610,160 Tex. 309 |
| Parties | Tommie DAVIS et ux., Petitioners, v. Louis GALE, Respondent. |
| Court | Texas Supreme Court |
John T. Buckley, Cleveland, for petitioners.
Malcolm Cohn, Cleveland, for respondent.
This is a suit in trespass to try title and to remove cloud from title filed by the petitioners against the respondent. For convenience, the parties will hereafter be designated as in the trial court.
The plaintiffs waived all counts contained in their second amended original petition, except the one in trespass to try title, and went to trial on pleadings alleging that they were the owners in fee simple and entitled to the possession of a tract or parcel of land situated in Liberty County, Texas, being Tract No. B(4) consisting of three acres of the Chas. Holt Addition to the City of Cleveland, Texas; that on October 4, 1955 a cloud was cast upon their title to said land by virtue of the execution and delivery of a deed by Malcolm Cohn, acting as trustee to the defendant, Louis Gale. Plaintiffs prayed that upon final hearing they recover against the defendant 'removing all clouds from the title and particularly setting aside the sale of Malcolm Cohn as trustee on the 4th day of October, 1955, wherein he attempted to sell Tract No. B-4, consisting of three (3) acres of the Chas. Holt Addition to the City of Cleveland, Liberty County, Texas.'
On February 25, 1957, the defendant filed an answer containing a plea of not guilty, and a special plea that on December 4, 1953, the plaintiffs executed a 'mechanics' and materialmen's lien and deed of trust to Louis Gale, * * * upon * * * tract No. B(4) acres of Port Addition to the City of Cleveland, Liberty County, Texas.' Defendant further alleged that the description was erroneous and that the land should have been described as 'tract No. B(4) of the Holt Addition to the City of Cleveland, County of Liberty, State of Texas.' Defendant prayed that 'plaintiffs take nothing, that the defendant go hence without day and recover of plaintiffs all costs in this behalf expended, that said tract B-4 of the Port Addition to the City of Cleveland, Liberty County, Texas be declared Tract No. B-4 of the Holt Addition to the City of Cleveland, Texas, * * *.'
The case was tried to the court without the aid of a jury. It was stipulated that one Charlie Holt was the common source of title. Plaintiffs introduced in evidence a warranty deed dated September 27, 1948, from Charlie Holt to plaintiffs, Tom Davis and wife, Julia Davis. Plaintiffs next introduced in evidence the trustee's deed, supra, 'not as a muniment of title, but for the limited purpose of showing a cloud upon our title.' The plaintiffs next read into the record, without stating its purpose, a stipulation and agreement that 'Malcolm Cohn, acting as substitute trustee, on the 4th day of October, A.D.1955, sold or attempted to sell Tract B-4 containing three (3) acres, in the Holt Addition to the City of Cleveland, Liberty County, Texas, to defendant, Louis Gale.'
The defendant introduced in evidence an instrument referred to as a Mechanics' and Materialmen's Lien and Deed of Trust lien. This instrument, dated December 4, 1953, describes the property as being 'Tract #B(4) acres of the Port Addition to the City of Cleveland, County of Liberty, State of Texas.'
The trial court entered judgment in favor of the defendant, Louis Gale, and ordered, adjudged, and decreed that he have and recover title to and possession of 'Block Number B Four (4) containing three acres of the Holt Addition to the City of Cleveland, Liberty County, Texas.' That judgment has been affirmed by the Court of Civil Appeals for the Third Supreme Judicial District at Austin, Texas. 319 S.W.2d 144.
The Court of Civil Appeals, in effect, has held that the tract described in the lien instrument is the same as 'Tract B-4, containing 3 acres of the Holt Addition.' The court agrees that the descriptions are different, but holds that since the plaintiffs had lived continuously on Tract B-4, containing 3 acres of the Holt Addition, and had never lived on any other land, and since plaintiffs admitted that a lien was given to secure the payment for improvements placed on said land, resort may be had to extrinsic evidence to aid in identifying the land, and that it may be inferred from the evidence that the plaintiffs intended to give a lien on the tract of land involved in this suit.
The judgments of the trial court and the Court of Civil Appeals must be reversed for the reasons now to be stated.
In a trespass to try title suit, where the parties agree as to a common source, it is incumbent upon the plaintiff to discharge the burden of proof resting upon him to establish a superior title from such source. See Rule 798, Texas Rules of Civil Procedure; Laidacker v. Palmer, Tex.Civ.App., 210 S.W. 739 (...
To continue reading
Request your trial
-
Westgate, Ltd. v. State
...S.W.2d 538, 541-42 (Tex.1972) (remanding to allow a purchaser to make an argument not advanced at the first trial); Davis v. Gale, 160 Tex. 309, 330 S.W.2d 610, 613 (1960) ("This court has often remanded a cause to give parties an opportunity to supply additional evidence and to amend plead......
-
Texas Commerce Bank Reagan Through Texas Commerce Bank Nat. Ass'n v. Lebco Constructors, Inc.
...be weighed in determining the sufficiency of the evidence to show a matter outside of the specific limitation. See Davis v. Gale, 160 Tex. 309, 330 S.W.2d 610, 612-13 (1960); Cook Drilling Co. v. Gulf Oil Corp., 139 Tex. 80, 161 S.W.2d 1035 (1942); Fitzgerald v. LaFreniere, 658 S.W.2d 692, ......
-
XTO Energy, Inc. v. EOG Res., Inc.
...Energy, Inc. v. Circle Ridge Production, Inc. , 528 S.W.3d 644, 669 (Tex. App.—Texarkana 2017, pet. denied) (quoting Davis v. Gale , 160 Tex. 309, 330 S.W.2d 610, 612 (1960) ). A plaintiff asserting superior title out of a common source may meet its burden by connecting its title through a ......
-
Great N. Energy, Inc. v. Circle Ridge Prod., Inc.
...Co., No. 06-13-00033-CV, 2014 WL 4377813, at *5 (Tex. App.–Texarkana Sept. 5, 2014, pet. denied) (mem. op.) (quoting Davis v. Gale, 160 Tex. 309, 330 S.W.2d 610, 612 (1960) ). Great Northern argues that Circle Ridge did not meet its burden of proof. We disagree.A. Standard of Review"In revi......