Evans v. Covington

• Decision Date: 17 July 1990
• Docket Number: No. 6-90-017-CV,6-90-017-CV
• Citation: 795 S.W.2d 806
• Parties: James EVANS, Appellant, v. Roberta M. COVINGTON, Appellee.
• Court: Texas Court of Appeals

Page 806

795 S.W.2d 806

James EVANS, Appellant, v. Roberta M. COVINGTON, Appellee.

No. 6-90-017-CV.

Court of Appeals of Texas Texarkana.

July 17, 1990.

C.V. Flanary, Paris, for appellant.

J. Daniel Rodgers, Fort Worth, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

CORNELIUS, Chief Justice.

James Evans appeals from an adverse judgment based on a jury verdict in his trespass to try title action against Roberta Covington. Evans claimed title by adverse possession.

In six points of error, Evans contends that the court erred by instructing the jury that Evans and Covington were cotenants; in allowing Covington's counsel to argue to the jury about the requirements concerning notice of adverse claim to cotenants; in admitting evidence of settlement negotiations; and in failing to set aside the verdict because of cumulative error and because the verdict is against the great weight and preponderance of the evidence. We overrule these points and affirm the judgment.

The parties stipulated that J.R. Scott was a common source of title. He purchased the property in 1941, while married to Fredina Pearl Scott. Scott died intestate in 1946 survived by Mrs. Scott and children from a previous marriage. Mrs. Scott lived on the property until 1968. In 1970, Evans purchased the undivided interests of several of Scott's children. In the fall of that year, Evans took possession of the property, had it surveyed, and enclosed it with a chain link fence. He has continuously possessed and used the property since that time.

On December 6, 1971, shortly before her death, Mrs. Scott conveyed her community interest in the property to Covington, reserving a life estate for herself.

In 1987, Evans sued Covington in trespass to try title based in part on adverse possession. Covington defended on the ground that as a cotenant, she was never ousted, so possession was not adverse to her. The jury found in favor of Covington in its answer to this question.

Do you find from a preponderance of the evidence that JAMES EVANS has held exclusive, peaceable and adverse possession of the land in question, cultivating, using or enjoying same for any period of ten (10) consecutive years after October 2, 1970?

ANSWER: "yes" or "no"

ANSWER: No.

The court rendered judgment confirming Covington's fee simple title in one-half of the property subject to one-half of the expenses proven by Evans.

Evans first contends that the trial court erred by instructing the jury as follows:

You are further instructed that when you have co-owners, the possession to be adverse to the other owner, or owners, must be such acts as amount to an ouster of the other owner, or owners, amounting to a repudiation of their title, and must be of such an unequivocal nature and so distinctly hostile to the others' rights as to put them on notice that the intention to claim the others' property is clear and unmistakable.

Evans argues that he and Covington were neither co-heirs nor cotenants, and the instruction improperly required him to show acts amounting to an ouster or repudiation of Covington's title.

Where a party claims title under a deed which conveys an interest in an existing cotenancy relationship, he becomes a tenant in common with the other co-owners. Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81, 86 (1942). Evans purchased the title of several of Mr. Scott's children. The surviving spouse and children of an intestate owner become co-owners of the community property. Sparks v. Robertson, 203 S.W.2d 622, 623 (Tex.Civ.App.--Austin 1947, writ ref'd); see TEX.PROB.CODE ANN. §§ 283, 284, 285 (Vernon 1980). Thus, when Evans purchased the undivided interests of the children after Mrs. Scott abandoned her homestead, he entered into an existing cotenancy.

An exception would apply if Evans had entered into possession as a trespasser before obtaining deeds from the co-owners. In that situation, he could "buy his peace" by securing deeds from owners of undivided interests without becoming a cotenant with the other co-owners. Johnson v. Dickey, 231 S.W.2d 952, 954-55 (Tex.Civ.App.--Austin 1950, writ ref'd n.r.e.), distinguishing Meaders v. Moore, 134 Tex. 127, 132 S.W.2d 256, 260 (Tex.Comm'n App. 1939, opinion adopted). Another exception would apply if Evans had procured conveyances which purported to convey the entire title to the land. Republic Production Co. v. Lee, 132 Tex. 254, 121 S.W.2d 973 (Tex.Comm'n App. 1938, opinion adopted); Beets v. Hickok, 701 S.W.2d 281 (Tex.App.--Tyler 1985, no writ).

The possession of a cotenant does not become adverse to the other cotenants unless notice is given that he was claiming the land adversely to the cotenants, or his acts in the assertion of the adverse claim are of such unequivocal notoriety as to charge them with such notice. Bruni v. Vidaurri, supra. This rule is based on the legal relationship between cotenants, in which each cotenant has a right to enter upon the common estate and a corollary right to possess and use the entire estate. Byrom v. Pendley, 717 S.W.2d 602, 605 (Tex.1986). Thus, possession by one cotenant is lawful, and it is not adverse to the other cotenants in the absence of some repudiation, notice of adverse claim or ouster. Southern Pine Lumber Company v. Hart, 161 Tex. 357, 340 S.W.2d 775 (1960).

There is no allegation or proof in this case that any of the exceptions noted above applies. Indeed, the uncontroverted evidence is to the contrary. The trial court therefore properly instructed the jury on cotenancy and the requirements for adverse possession in that circumstance.

Evans next contends that the trial court erred in allowing Covington's counsel to argue concerning the instruction about cotenancy. As the instruction was proper, argument concerning it was also proper.

Evans also contends that the court improperly admitted two letters into evidence. He argues that the letters are offers of settlement which are inadmissible under TEX.R.CIV.EVID. 408.

Generally, offers or negotiations for settlement between a plaintiff and a defendant are inadmissible. Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1 (Tex.1986); McGuire v. Commercial Union Insurance Co. of N.Y., 431 S.W.2d 347 (Tex.1968). However, a party may not complain of error which he has invited, and a defendant is entitled to bring evidence of settlement negotiations before the jury where the plaintiff opens the door or volunteers similar evidence. Simmons v. Capital Diesel & Industrial Machine Works, Inc., 380 S.W.2d 191 (Tex.Civ.App.-Amarillo 1964, writ ref'd n.r.e.); Howell v. Bowden, 368 S.W.2d 842 (Tex.Civ.App.-Dallas 1963, writ ref'd n.r.e.). One may not complain of improper evidence produced by the other side when he has introduced the same evidence or evidence of a similar character. McInnes v. Yamaha Motor Corp., U.S.A., 673 S.W.2d 185, 188 (Tex.1984); Pouncy v. Garner, 626 S.W.2d 337, 340 (Tex.App.-Tyler 1981, writ ref'd n.r.e.); Hughes v. State, 302 S.W.2d 747, 750 (Tex.Civ.App.-Eastland 1957, writ ref'd n.r.e.).

Mrs. Covington was called as an adverse witness by Evans, and testified on direct examination as follows:

Q. Did you ever have any contact after that with Mr. James Evans?

A. Oh, I think--I can't remember much contact except we had some letters and then he offered to buy my part and I think he wrote me a letter.

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