Evans v. Houston Oil Co.

• Decision Date: 05 April 1919
• Docket Number: (No. 445.)
• Citation: 211 S.W. 605
• Parties: EVANS et ux. v. HOUSTON OIL CO. OF TEXAS et al.
• Court: Texas Court of Appeals

Page 605

211 S.W. 605

EVANS et ux. v. HOUSTON OIL CO. OF TEXAS et al.

(No. 445.)

Court of Civil Appeals of Texas. Beaumont.

April 5, 1919.

Dissenting Opinions, April 14 and 15, 1919.

Rehearing Denied April 30, 1919.

Appeal from District Court, Tyler County; J. Llewellyn, Judge.

Suit by Jubal Evans and wife against the Houston Oil Company of Texas and others. From judgment for defendants, plaintiffs appeal. Affirmed.

Coleman & Lowe, of Woodville, for appellants.

Kennerly, Williams, Lee & Hill, of Houston, for appellees.

BROOKE, J.

It is well to state, at the outset, that this court cannot consider appellants' assignments of error from the second to the seventh, inclusive, for the reason that they are subject to the objections urged thereto by appellees. The second assignment is objected to because the same is not copied into the brief, as required by rule 29 for Courts of Civil Appeals (142 S. W. x). With reference to the third assignment, it is objected that neither in the motion for a new trial, nor in any assignments filed in the trial court, was such an assignment raised; the assignment as copied in the brief being merely a quotation from a bill of exceptions shown on page 29 of the transcript, which was never filed as an assignment of error, nor contained in the motion for new trial filed in the trial court. And, as to the other assignments mentioned above, it is urged that these assignments should be regarded as abandoned, and appellees object to their consideration, for the reason that no statement is given thereunder. See rule 29, governing Courts of Civil Appeals, and Harris' Annotated Rules of Courts, p. 29, and authorities cited thereunder. This opinion, therefore, will only consider the first assignment of error.

The facts, as shown by the record in this case, are as follows:

Appellants sued appellees for an undivided 160 acres out of the William S. Brown survey in Tyler county, claiming that they had acquired title thereto under the ten years' statute of limitation. It was agreed that the appellees owned all of the land, unless appellants had acquired title under the ten years' statute. The court instructed the jury to return a verdict in favor of the appellees, and judgment was rendered therein in appellees' favor.

The judgment in this case must be affirmed for the following reasons:

(1) That the undisputed testimony showed that the appellants entered and resided on the land at the special instance and request of the representative of the Reliance Lumber Company, the owner of the land, so that their entry in 1887 and occupancy thereafter was permissible and not adverse.

(2) Because in 1892 appellants entered into an oral agreement with the agent of the Reliance Lumber Company to purchase a part of the Brown survey, and in 1893 accepted a deed conveying said land to them; hence they acknowledged and recognized the title of the company.

(3) Because in 1899 or 1900 the owner of the land entered thereon and cut and removed all of the timber therefrom; such entry being sufficient to stop the running of the statute, even if the possession had been adverse theretofore, which it was not.

Appellants' first assignment of error is as follows:

"The court erred in instructing the jury to return a verdict in favor of the defendants, on the theory that the plaintiffs recognized the title of the defendants by purchasing a portion of the Brown 960-acre survey, in 1893, because the undisputed evidence shows that the plaintiff entered upon and set up a claim to the land sued for in the year 1887, or at latest in the latter part of the year 1888, and therefore the statute of limitation, upon which plaintiff relied for recovery, was set in operation prior to the time the plaintiff made any purchase of any portion of the Brown survey, and the fact that plaintiff Jubal Evans did purchase a portion of said survey which was not in conflict with the portion he was at that time claiming and asserting title to would not, as a matter of law, stop the running of the statute of limitation to the tract in controversy in this suit; the most under the decisions of the courts of this state, that said purchase could do, would be to operate as a circumstance against the adverseness of his claim, which the jury were entitled to consider, along with the other evidence, in determining whether the plaintiffs' claim was in fact adverse. And for this reason the plaintiff asks that the verdict of the jury be set aside as well as the judgment of the court."

Under this assignment, there are two propositions, viz.:

(a) "The undisputed evidence in this case shows that appellants entered upon the land in controversy and set up a claim thereto in the year 1887, and that they cultivated, used, and enjoyed it, claiming 160 acres as their own, until and including the year 1904, at which time their possession and claim had long before ripened into a good and perfect title, and the fact that in 1893 appellants bought 160 acres off the east end of the 960-acre survey did not, as a matter of law, stop the running of the statute of limitations to the 160 acres in controversy in this suit on the west end of said survey."

(b) "The evidence in this case raised the issue of fact as to whether the appellant had adverse possession of and claimed the 160 acres of land in controversy in this suit for ten years before suit was filed, which issue of fact the court should have submitted to the jury under a proper charge."

The record reflects that on March 24, 1877, one David Miller conveyed by deed to the Reliance Lumber Company all of the William S. Brown survey in controversy. The appellants moved onto this survey at the request of and with the permission of one Hester, who was woods foreman and agent of the Reliance Lumber Company; the appellant J. Evans, himself, testifying to the following:

"In 1887 Hester came up and built that little board house, and I come up and occupied the house myself. Hester was logging there. * * * He was just running the camp there for the Reliance Lumber Company. He was the woods foreman. * * * He was working the timber on the Brown survey and running it down for them, the Reliance Lumber Company.

"Hester was their agent up there attending to their business.

"I explained to you how I happened to first go up on that 160 acres that I afterwards bought. He (Hester) was working for the Reliance Lumber Company, and he was working there for them, and he went up there and built a house, and asked me to take care of his men that were working, some eight or ten men. That was the way I happened to go up there. These men paid me board directly.

"At that time he (Hester) was logging and running timber down the creek for the Reliance Lumber Company. We moved up there and built a house for a camp house. I kept the men. They boarded with me. He built the house on the Brown survey there. He says, `Maybe it will be that you can get this when we leave here.'

"We just kept living there, and after a while he (Hester) pulled up his teams and went to logging on Thouvenin creek. He went down there to log and wanted me to go with him. I told him, no, I would stay there. I would cultivate my field down there and go backwards and forwards to work. It was only some three or four miles, maybe four miles, and I just kept staying there and staying, and he finally says, after I had been there some four or five years, I don't know exactly how long, he said, `You can buy this piece of land from the Reliance Lumber Company now by letting them have the timber,' and I says, `Well, maybe I can,' so he worked up the deal for us, and I bought the place. Most of my negotiations were made through Mr. Hester."

Further:

"I moved on that survey (William S. Brown) In June, 1887. I did not own 160 acres there at that time. * * * I lived on that survey of land about 16 or 17 years. I went in about 1887 and lived there in 1903 or 1904. * * * I never did have it exactly surveyed out. It was 12 acres, perhaps 15. * * * I claimed 160 acres there around that field from the field on down to the creek, claimed 160 acres to be surveyed off to include the field. * * * I hired a fellow to clear it in 1887, in fall, three acres. I claimed that in the summer like. We were logging right next to it, and I says to the boys, `I will be cultivating this next year,' so I got him to clear the three acres, and he left, and, after the camp moved away from this, I set to clearing it at that time myself. * * * I put in five acres that I put in and cultivated the first year. * * * I cultivated that land every year * * * from 1887 to 1903. There was not a year between 1887 and 1903 that I did not cultivate that field. I claimed 160 acres of that land each and every year."

It was agreed that the Reliance Lumber Company was the owner of the land; that it conveyed the land in 1894 to the Village Mills Company, which conveyed it to the Houston Oil Company of Texas on January 3, 1902 from whom the other defendants in the case acquired an interest in the property.

The Reliance Lumber Company, on September 9, 1893, by deed, conveyed to the appellant J. Evans a tract of 160 acres of land out of said William S. Brown survey, warranting the title thereto, but reserving all of the merchantable timber thereon. The appellant J. Evans testified: That he made the trade for this 160 acres conveyed by the deed about a year before he got the deed. That he made the trade with Hester for the land. That, "as soon as he said he could get it for me, I made a payment. That was about a year before I got the deed. * * * That made it about 1892 when the deal was on between me and him." He further testified:

"I asked Mr. Hester to see if he could purchase a piece of land there for me. It was narrated around that the Reliance Lumber Company owned that piece of land there. I had saved up some money. I went to paying on it right straight. I paid it to Hester.

"I worked it out and paid Hester. ...