Elcan v. Childress

• Decision Date: 24 June 1905
• Citation: 89 S.W. 84
• Parties: ELCAN et al. v. CHILDRESS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 84

89 S.W. 84

ELCAN et al. v. CHILDRESS et al.^*

Court of Civil Appeals of Texas.

June 24, 1905.

Appeal from District Court, Taylor County; J. H. Calhoun, Judge.

Action by Elizabeth R. Elcan and others against O. M. Childress and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Rehearing denied October 14, 1905.

John H. Morrow and Hardwicke & Hardwicke, for appellants. J. M. Wagstaff and E. N. Kirby, for appellees.

CONNER, C. J.

Appellants instituted this suit in trespass to try title in August, 1903, to recover an undivided half interest in a survey of 360 acres of land situated in Taylor county. Appellees pleaded not guilty and the several statutes of limitation. The case was tried by the court upon an agreed statement of facts; the trial resulting in a judgment for appellees. The facts as agreed to, so far as necessary to recite, are as follows: "That the land in controversy was patented to Charles P. Green, assignee of John Lowrie, on April 25, 1854, and is in Taylor county, Tex. That Nathaniel T. Green was the heir at law and devisee of one-half of the property of said Charles P. Green, who died in Warrane county, N. C. on or before November 1, 1843. That Nathaniel T. Green died in the year 1874, leaving as his only heirs his wife, Lucy Alston Green, and the following children, to wit: S. P. Green; Fannie Somerville, a widow; Bettie Green, who married F. F. Thweatt; and Kate Green, who married J. J. Elcan. That Lucy Alston Green, wife of said Nathaniel T. Green, died in June, 1899. That Bettie Thweatt and F. F. Thweatt are both dead, leaving as their only heirs the following children, to wit: A. Thweatt, W. G. Thweatt, and R. F. Thweatt —each of whom is over 21 years of age, and was on January 1, 1895. That Kate Elcan is dead, leaving as her only heirs the following children, to wit: Elizabeth R. Elcan and Claud V. Elcan. Claud V. Elcan died unmarried about the 1st day of January, 1903, at the age of 24, leaving as his only heir Elizabeth R. Elcan, who was 28 years of age August 5, 1903. That the defendants Childress, Barnard, and J. H. Landers, and those under whom they claim, have had the actual and exclusive, peaceable, and adverse possession of all the land herein sued for by plaintiffs since January, 1887, cultivating, using, and enjoying the same under deeds duly recorded, and paying the taxes upon the same for more than five years next preceding the filing of this suit, to wit, August, 1903, and since January 1, 1903. That the claim of said defendants is inconsistent with and hostile to that of the plaintiffs. That Kate Elcan died in 1894. That J. J. Elcan, the husband of Kate Elcan, is yet living."

We find no reason for disturbing the judgment. It is indicated in pleas of improvements in good faith that appellees at the time of the trial claimed distinct parts of the survey of land in controversy in severalty. The admitted facts, however, show that appellees and those under whom they claim jointly had the actual, exclusive, peaceable, and adverse possession of all the lands sued for since January, 1887, cultivating, using, and enjoying the same, and holding under deeds duly recorded, and paying all taxes due for more than five years prior to the institution of the suit. The proof, therefore, is in accord with the joint pleas of limitation, and no defect in the judgment can be said to arise from the fact that such pleas were joint, rather than several, and failed to specify by metes and bounds the several parcels claimed by appellees.

It is also urged that, in the absence of an allegation of a "peaceable possession" in the plea of the ten-year statute of...