Doherty v. Jensen, 11526.

• Decision Date: 29 July 1943
• Docket Number: No. 11526.,11526.
• Citation: 174 S.W.2d 77
• Parties: DOHERTY et al. v. JENSEN et al.
• Court: Texas Court of Appeals

174 S.W.2d 77

DOHERTY et al. v. JENSEN et al.

No. 11526.

Court of Civil Appeals of Texas. Galveston.

July 29, 1943.

Rehearing Denied September 30, 1943.

Appeal from District Court, Galveston County; J. C. Canty, Judge.

Action in trespass to try title to realty brought by J. A. Jensen and wife against W. J. Doherty and others, wherein defendants by cross-action impleaded the plaintiffs and N. W. Pearson and wife. From a judgment awarding the land in controversy except approximately one acre to plaintiffs and to parties impleaded in cross-action, defendants appeal.

Judgment affirmed in part and in part reversed and judgment rendered for defendants.

Markwell & Stubbs, of Galveston, and Fouts, Amerman & Moore, of Houston (A. E. Amerman and A. E. Amerman, Jr., both of Houston, of counsel), for appellants.

Harris & Coltzer and George W. Coltzer, all of Galveston, and Albert J. DeLange, Frank A. Stamper, and Robert P. Beman, Jr., all of Houston, for appellees.

MONTEITH, Chief Justice.

This action in trespass to try title was brought by appellees, J. A. Jensen and wife, to recover from appellants, W. J. Doherty and others, the title to and possession of 166.19 acres of land, a part of the A. G. Reynolds League Survey in Galveston and Brazoria Counties, Texas.

By cross-action, appellants, as alleged record owners of the land in controversy, impleaded both appellees, J. A. Jensen and wife and N. W. Pearson and wife.

All appellees answered by pleas of general denial and not guilty. They specially pled the ten-year statute of limitations. Vernon's Ann.Civ.St. art. 5510.

For convenience, appellees, J. A. Jensen and wife, will be designated here as "appellees Jensen"; appellees, N. W. Pearson and wife, will be designated as "appellees Pearson", and appellants, J. W. Doherty et al., will be designated as "appellants".

The jury, with respect to the Pearson limitation claim, returned a verdict in which they found, in effect, that appellees Pearson had had peaceable and adverse possession of that part of the land in controversy claimed by them for a period of ten years or more after the year 1925 to October 9, 1939. They found, however, in answer to another issue submitted, that the claimed possession by said appellees during said period had not been held "adversely and in hostility against the true owners."

With respect to the claim of appellees Jensen, the jury found that they had had peaceable and adverse possession of the land claimed by them for a period of ten years after 1911 and after 1927 and before April 8, 1939. They found, however, in answer to other issues submitted, that said appellees had not been in adverse possession of said land under a claim of right inconsistent with the claim of Norman Kittrell, Jr., the then trustee of the record owners of the land claimed by them in the year 1918, and that from 1911 through 1924 they had recognized Norman Kittrell, Jr., as the owner thereof.

After said verdict was returned appellants filed a motion for judgment in their favor on the alleged ground that both appellees Pearson and Jensen had failed to establish their limitation titles to those portions of the 166 acres of land in controversy claimed by them under their pleas of the ten-year statute of limitations. This motion was overruled by the trial court and judgment was rendered that appellees Pearson recover of and from appellants the title to and possession of approximately 115 acres of the 166.19 acres of the land in controversy, and that appellees Jensen recover approximately 50 acres thereof. The trial court by its judgment upheld appellants' claimed record title to the land in controversy and awarded them on their cross-action the title to and possession of approximately one acre of said land, the record title to which is identical with the record title to the balance of the 166.19 acre tract awarded appellees.

While both appellees Pearson and Jensen alleged that they had a record title to those portions of the land in controversy claimed by them, neither of said appellees attempted to establish a record title thereto in themselves. Both appellees Pearson and Jensen owned by deed, and occupied during the claimed limitation period, tracts of land adjoining the 166 acre tract in controversy on the west. Their claims to the land in controversy, as shown by the record, were based entirely on the ten-year statute of limitations by virtue of their claimed use thereof for cattle pasturage purposes. No taxes were ever paid on any part of the land in controversy by either of said appellees.

This appeal involves two separate and distinct causes of action, one being the cause of action between appellants and appellees Pearson involving the approximately 115 acres of land awarded them by the judgment of the trial court, and the other being the cause of action involving the approximately 50 acres of land awarded appellees Jensen by the court's judgment.

Appellants contend that neither appellees Pearson nor Jensen, under the undisputed evidence of the case, established a limitation title to any part of the land in controversy in the trial court, and that appellants were entitled to a judgment against both of appellees on the answers to ultimate and controlling issues contained in the jury's verdict and on their established record title to the land in controversy.

No brief has been filed in this court by appellees Pearson and, since they have not availed themselves of oral argument, this court must, under Rule 419, Texas Rules of Civil Procedure, assume as true all facts stated by appellants in their brief, and render judgment in conformity therewith.

The controlling question presented in the appeal as applied to the claims of appellees Pearson is whether there is an irreconcilable conflict between the answer to special issue No. 3, wherein the jury found that said appellees had held peaceable and adverse possession of the land so claimed by them for a period of ten years during the claimed limitation period, and the answer to special issue No. 15, wherein it was found that said appellees were not holding said land during said ten-year period adversely to the true owner thereof, whether, under this record, the answer to said special issue No. 15 must be construed as a special finding on an ultimate issue in the case which must be given controlling effect over the general finding in answer to special issue No. 3, submitting the ten-year statute of limitation.

Appellants contend that there is no conflict between the answers to said special issue No. 15 and said special issue No. 3, and that appellees Pearson's limitation claim to the land in controversy must be determined from the answer to the ultimate and controlling question submitted under special issue No. 15 of whether or not the Pearsons were "holding the land adversely and in hostility to the true owners." Said special issue No. 3 reads:

"Do you find from a preponderance of the evidence that Cross-Defendants N. W. Pearson and wife, have had peaceable, adverse, and continuous possession of that part of the land involved in this cause, indicated on the plat introduced on the trial of this cause and designated Exhibit 1, embraced within the letters `H' to `Z-2' to `Z' and back to `H', and more fully described as follows: (here follows metes and bounds description of the portion of the 166 acres claimed to have been enclosed by Pearson) using or enjoying the same for a period of 10 years or more after the year 1925 to the filing of Cross-Plaintiffs' first amended original answer and cross-action on Oct. 9, 1939."

The court in its charge defined the term "peaceable possession" as such possession "as is continuous and uninterrupted by adverse suit to recover the estate." The term "adverse possession" was defined as "an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another."

Said special issue No. 15 reads:

"If you have answered Special Issue No. 3 `Yes', then answer the following:

"Do you find from a preponderance of the evidence that N. W. Pearson, during said ten-year period, was holding the land described in Special Issue No. 3 adversely and in hostility against the true owner?"

The jury answered special issue No. 3 "Yes", and special issue No. 15 "He was not."

It is well settled in this state that, in order for a claimant to establish a title under the ten-year statute of limitations, he must have held the land claimed continuously for the prescribed period adversely to and in hostility against the true owner thereof. Satterwhite v. Rosser, 61 Tex. 166; Hartman v. Huntington, 11 Tex.Civ.App. 130, 32 S.W. 562.

Appellants base their contention that under the verdict of the jury said appellees have failed to establish the fact that they had held the land claimed by them adversely to and in hostility against the true owners thereof for the prescribed period of time and that the judgment of the trial court awarding said land to said appellees must be reversed and a judgment here rendered in appellants' favor mainly on the principles of law laid down in the cases of Bennett v. Carey, Tex.Civ.App., 99 S.W.2d 1105, writ of error dismissed and Cuniff v. Bernard Corporation, Tex.Civ. App., 94 S.W.2d 577, writ of error refused.

The fact situation and the questions involved in the case of Bennett v. Carey, supra, are similar in all material respects to those in the instant case. In that case, as in the instant case, the defendant claimed the land involved under the ten-year statute of limitations. The plaintiff in that case, as in the instant case, had established a record title to the land in controversy. In answer to special issue No. 1, the jury had found that the defendant had gone into actual possession of the land claimed by him under a claim of right and that he had held adverse possession thereof by cultivating, using, and enjoying it continuously,...