Farr v. Kirby Lumber Corporation

• Decision Date: 29 May 1947
• Docket Number: No. 4428.,4428.
• Citation: 203 S.W.2d 815
• Parties: FARR et ux. v. KIRBY LUMBER CORPORATION.
• Court: Texas Court of Appeals

203 S.W.2d 815

FARR et ux. v. KIRBY LUMBER CORPORATION.

No. 4428.

Court of Civil Appeals of Texas. Beaumont.

May 29, 1947.

Rehearing Denied July 12, 1947.

Appeal from District Court, San Augustine County; F. Pat Adams, Judge.

Action in trespass to try title by the Kirby Lumber Corporation against J. E Farr and wife, in which defendants filed a cross-action pleading their title to the land involved by adverse possession. From a judgment on an instructed verdict for plaintiff, defendants appeal.

Affirmed.

Adams & Adams, of Nacogdoches, for appellants.

Fountain, Cox & Gaines, of Houston, for appellee.

WALKER, Justice.

This is an action in trespass to try title, brought by Kirby Lumber Corporation against J. E. Farr and wife to recover the William Scurlock 190 1/3 acres survey, Abstract No. 413, in San Augustine county. Kirby will be referred to hereinafter as plaintiff, and J. E. Farr and wife as defendants, as they were in the trial court.

Under the formal allegations in trespass to try title, plaintiff alleged fee title to the land and also plead title under the 3, 5, 10 and 25 year statutes of limitations. By way of answer, defendants plead not guilty and further, that a certain acknowledgment of tenancy by them dated March 18, 1936, was procured by fraud. They also filed a cross-action wherein they specially plead title to the land under the 10 year statute of limitations.

The cause was tried to a jury, but the judgment appealed from is based upon an instructed verdict. The record shows that at the close of plaintiff's evidence in chief, defendants tendered evidence in support of their limitation title and in proof of the fraud whereby they say that the acknowledgment of tenancy was procured from them. All of this evidence was excluded and no further tender being made, the trial court, on plaintiff's motion, instructed the jury to return a verdict in plaintiff's behalf. Plaintiff's motion is not in the transcript, and we infer that it was oral. The following quotation from the judgment shows the ground upon which the trial court purportedly acted in instructing a verdict: "After the pleadings were read, evidence was taken and at the close of plaintiff's evidence, J. E. Farr having admitted the writing and transmission to Kirby Lumber Corporation of a letter acknowledging the right of Kirby Lumber Corporation to the premises in question, which letter was written at a time and in terms such as destroyed the limitation claim of J. E. Farr and wife to the land in question, the Court sustained the objection of Kirby Lumber Company to the receipt of any evidence of defendants and cross-plaintiffs as to their limitation claim." On this verdict, the trial court rendered judgment awarding plaintiff title to and possession of the land in suit, and denying defendants any recovery on their cross action.

Defendants have appealed.

We have before us only a part of the evidence proved or tendered in the trial court, to-wit, the testimony of defendant J. E. Farr and the tender of proof made in defendants' behalf by defendants' attorney. These matters have been incorporated in a partial transcript of the evidence and also in a bill of exceptions. Various exhibits, presumably introduced on trial, have been filed in this court, and plaintiff has resorted to these exhibits in defense of the judgment. These exhibits have not been brought up in accordance with Rule 379, Texas Rules of Civil Procedure, but defendants have made no point of this irregularity and under our disposition of this appeal the irregularity is not material. The transcript also contains detailed findings of fact and conclusions of law by the trial court, which plaintiff says the defendants requested.

According to these findings, plaintiff has record title to the land from the sovereignty of the soil, originating with a patent to E. A. and S. W. Blount, Jr., assignees of William Scurlock, dated September 18, 1883. The evidence upon which these findings were based is not before us, but we note that defendants have not attacked any of these findings.

The defendants' tender of proof exhibits a claim to a limitation title under the 10 year statute, based upon an adverse possession as a naked trespasser since May 11, 1933. This tender shows that prior to May 11, 1933, one L. H. Wyatt had erected certain "improvements" upon the land, which he sold to defendants, and that on this date defendants occupied these improvements, making said improvements their residence, and that defendants have since resided there. Defendants say that their possession was evidenced by cultivation, by the cutting of timber, and by the possession of various tenants, as well as by their own occupancy.

The record does not show when the suit was filed. Plaintiff's brief recites (without contradiction by defendants) that the suit was filed on November 29, 1945. Defendants' answer alleges that process was served upon defendant J. E. Farr on December 5, 1945; and the transcript contains plaintiff's first amended petition, which was filed on January 14, 1946.

The testimony of defendant J. E. Farr (whom plaintiff called to the stand and examined under the adverse witness rule) refers to two written instruments which plaintiff says constitute acknowledgments of plaintiff's title, and which are before us only in the form of exhibits, to-wit, a postal card dated May 27, 1939, addressed to Kirby Lumber Corporation, and a letter bearing date February 25, 1940, addressed to one M. E. Miller but originally enclosed in an envelope directed to Kirby Lumber Corporation, this being the letter which is referred to in the trial court's judgment. There is also among the exhibits a formal acknowledgment of tenancy by defendants dated March 18, 1936, in favor of McDonald Meachum, receiver of Kirby Lumber Company. According to the trial court's findings of fact Kirby Lumber Company was the immediate predecessor in title of plaintiff, Kirby Lumber Corporation. The trial court has found that the postal card and the letter were written by defendant J. E. Farr, and that the acknowledgment of tenancy was executed by defendants. Defendants do not deny that they executed the acknowledgment of tenancy, and say only that it was procured by fraud.

Defendants assign two points of error for reversal, namely, that the trial court erred in excluding their evidence of limitation title and further, in instructing a verdict in plaintiff's behalf. The substantial question raised by defendants' appeal is whether the trial court erred in excluding defendants' evidence of limitation title, for there would otherwise have been matters of fact to be submitted to the jury. In discussing this question, we shall assume that defendants' possession began on May 11, 1933, and continued until the date this suit was filed, which we take to be November 29, 1945. Thus the maximum limitation period to be considered here covers a period of 12 years, 6 months and 18 days.

We note that plaintiff has made some use of the trial court's findings of fact, and that plaintiff says that defendants are bound by these findings. Under the circumstances of this case (trial to a jury and an instructed verdict) the trial court had no authority to make findings of fact, and the findings made by the trial court are without any recognizable legal significance on this appeal. See Rules 296 and 307; Smith v. Clark, Tex.Civ.App., 266 S. W. 518; Sigmond Rothschild Co. v. Moore, Tex.Com. App., 37 S.W.2d 121; Robinson v. Lynch Davidson & Co., Tex.Civ.App., 1 S.W.2d 677. And also see: Ryan v. Teague, 50 Tex.Civ.App. 153, 110 S.W. 117; Crosby v. Di Palma, Tex.Civ.App., 141 S.W. 321, page 326; King v. Furay, Tex.Civ.App., 130 S.W.2d 1029; Jones v. Edwards, Tex. Civ.App., 152 S.W. 727. We accordingly attach no weight to the trial court's finding that defendant J. E. Farr wrote the postal card and the letter to which we have previously referred.

We proceed to a discussion of defendants' assignment that the trial court erred in excluding their evidence of limitation title.

If defendants' tender of proof be taken to be true, defendants have exhibited a limitation title under the 10 year statute to at least a part of the land in suit, and under their pleadings the trial court has necessarily committed reversible error in excluding the evidence tendered and in instructing a verdict in plaintiff's behalf unless the legal effect of defendants' evidence was avoided and that evidence made immaterial by any of the following matters:

(1) The postal card of May 27, 1939, and the letter of February 25, 1940: Plaintiff says that the card shows a promise by defendant, J. E. Farr, to pay plaintiff rent on the land, that the letter is an offer by said defendant to pay plaintiff rent on the land for the years 1939 and 1940, and that under Houston Oil Co. v. Pullen, Tex.Com.App., 272 S.W. 439, and related decisions, each of these instruments was such an acknowledgment of plaintiff's title as would break the continuity of defendants' possession. If correct regarding either instrument, the judgment must be affirmed, for the defendants' limitation period began on May 11, 1933, and ended on November 29, 1945, about 12½ years.

We overrule plaintiff's contention regarding each of these instruments because it was a question of fact, to be decided by the jury and not by the trial court, whether defendant J. E. Farr wrote either the card or the letter.

According to the evidence before us, J. E. Farr denied that he wrote the card. The trial court's finding to the contrary seems to be primarily based upon a comparison of certain signatures written by Farr on trial with the writing on the face of the card, but under Farr's denial this comparison was a matter for the jury.

J. E. Farr admitted, while under examination by plaintiff's attorney as an adverse witness, that he wrote the letter of February 25, 1940. However, it appears from various items of proof tendered by defendants...