Dillard v. Cochran

• Decision Date: 22 January 1913
• Citation: 153 S.W. 662
• Parties: DILLARD v. COCHRAN et al.
• Court: Texas Court of Appeals

153 S.W. 662

DILLARD v. COCHRAN et al.

Court of Civil Appeals of Texas. Austin.

January 22, 1913.

Appeal from District Court, Hill County; C. M. Smithdeal, Judge.

Action by B. B. Cochran and others against P. H. Dillard and others. From a judgment for plaintiffs, defendant P. H. Dillard appeals. Reversed and remanded.

Collins & Cummings, of Hillsboro, for appellant. Morrow & Morrow, of Hillsboro, for appellees.

KEY, C. J.

Appellees, the surviving widow and children of W. B. Cochran, deceased, brought this suit against P. H. Dillard, Will Dillard, and his wife, Ella Dillard, to recover an undivided one-half interest in 72 acres of land situated in Hill county. The defendants answered by plea of not guilty, the three, five, and ten years' statutes of limitation, and by special answer, alleging that the deed executed by P. H. Dillard, conveying the land in controversy to W. B. Cochran, under whom the plaintiffs claim, was procured by fraud. The deed was in the usual form, and contained a general warranty clause. After hearing all the testimony, the trial court instructed a verdict for the plaintiffs, and, upon the verdict so obtained, rendered a judgment for the plaintiffs; and the defendant P. H. Dillard has appealed and assigns as error the action of the trial court in directing a verdict for the plaintiffs.

The contention is that testimony was submitted tending to show that, after appellant conveyed the land to W. B. Cochran in 1892, he took possession of it, and held adverse possession thereof for more than 10 years before this suit was brought, and that therefore he reacquired title to the land. Without expressing any opinion as to how the issue of limitation should be decided, we hold that the testimony presented that issue, and that it should have been presented to the jury. The proof shows that the 72 acres of land was formerly the separate property of John H. Dillard, the father of P. H. and Will Dillard; that it was the homestead of himself and his wife, the mother of P. H. and Will Dillard, up to the time of John H. Dillard's death, and was thereafter the homestead of his surviving wife, unless she abandoned her homestead right by the acquisition of an urban homestead in the town or village of Peoria, which the testimony tends to show. The deed from appellant to W. H. Cochran was executed in 1892.

The appellant testified that, at the time he executed that deed, he was in jail in Hillsboro, under a conviction for manslaughter; that thereafter he was conveyed to the penitentiary, and remained there until he was released therefrom in 1894; that, at the time he executed the deed, his mother was an inmate of the insane asylum at Terrell, Tex.; that she was discharged from that institution and returned to Hill county a short time before he did; and, among other things, he testified as follows: "I was released from the penitentiary in 1894, and in the meantime my mother had been released from the asylum. She was released just a short time before I was. I saw my mother just as quick as I could come from the penitentiary home. She was here when I got here. I have been occupying the land in controversy since 1894. Most of the time I have cultivated a part of it myself and rented the rest of it. I rented the land to different parties, and collected the rent myself. I have paid the taxes on the land since 1894. I went into possession of that land right soon after I was released from the penitentiary, maybe a couple of months, and maybe not so long. It was rented out for that year; but we got possession of it. I think it was in the latter part of the spring or the beginning of the summer when I got possession of the land. W. B. Cochran is now dead. I think he died in 1893 or 1894, I am not sure, but he died before I came back, and it was in the spring or summer of 1894 when I got possession of the land. Since that time I have never had any particular conversation with Bailey Cochran or his mother or brother or sisters about it. They have never demanded the possession of the land from me until this suit was filed. During all these years, I have claimed that me and Will owned the land. There was a man in the jail with me at the time I signed that deed, whom I now recall. That was W. M. Low, and a negro by the name of Dave Low. They were present when these conversations occurred between me and Col. Booth, in which Mr. Cochran was present. This land in controversy was the separate property of my father. I received $350 for that land, and I owned an undivided interest in 72 acres. I know what the reasonable cash value of the land was at that time. It was worth about $20 an acre. Mr. Cochran was in possession of the land, during the time I was in the penitentiary, from the time the deed was executed until about the summer of 1894. I know the reasonable rental value of that land at that time. It was about $3 an acre for a year, and the two years would be about $6 an acre. The improvements on the place consisted of a box house about 14 feet square, and a side room, and a log house we used as a smoke house, and a couple of log cribs. There was some timber on the land. When I went back into possession of the land, I found all the improvements gone— the house and barn and some things that were in the house. I would say that the reasonable cash market value of all that stuff at that time was $125. ...