Ferguson v. Johnston, 7070

• Decision Date: 13 January 1959
• Docket Number: No. 7070,7070
• Citation: 320 S.W.2d 906
• Parties: Jim Ed FERGUSON et al., Appellants, v. Louis T. JOHNSTON et al., Appellees.
• Court: Texas Court of Appeals

Page 906

320 S.W.2d 906

Jim Ed FERGUSON et al., Appellants, v. Louis T. JOHNSTON et al., Appellees.

No. 7070.

Court of Civil Appeals of Texas, Texarkana.

Jan. 13, 1959.

Rehearing Denied Feb. 10, 1959.

B. F. Edwards, Clarksville, for appellants.

Pat Beadle, Robert Gooding, Clarksville, for appellees.

FANNING, Justice.

This is a trespass to try title suit and the judgment of the trial court is affirmed.

Appellees sued in trespass to try title for 29.99 acres of land in Red River County, Texas, which was a part of a 200-acre tract conveyed by J. H. Johnston, Sr. (a widower), to his son, Louis T. Johnston, Sr., for his life (with grantor having rights of revocation of said life estate contingent upon breach of the grantee of certain conditions as particularly specified in said deed) with remainder to grantee's children, or their descendants, surviving him at the time of his death, by deed dated March 19, 1918. Appellees Louis T. Johnston, Virginia Gordon Lovett, and Barbara June Simonds are the surviving children and only children of Louis T. Johnston, Sr., who died August 9, 1953. Appellees Robert Gooding and Pat Beadle hold certain interests in the land by deeds from other appellees.

Pertinent provisions of the 1918 deed from J. H. Johnston, Sr., to Louis T. Johnston, Sr., are found below. ¹

J. H. Johnston, Sr., died on or about February 19, 1920, without ever having revoked or having attempted to revoke the life estate granted to Louis T. Johnston, Sr., in the 1918 deed.

In 1918 at the time of the execution and delivery of the above deed, the grantee of the life estate, Louis T. Johnston, Sr., was married, his wife being Eula Johnston, which was his only marriage, and they had no children until July 13, 1920, when Louis T. Johnston, Jr., one of the appellees herein, was born. Said Louis T. Johnston, Jr., became 21 years of age on July 12, 1941. Louis T. Johnston, Sr., and wife, Eula Johnston, had two more children born to their union as follows: Virginia Gordon Lovett was born March 19, 1924, and became 21 years of age on March 18, 1945. Barbara June Simonds was born September 16, 1931, and became 21 years of age on September 15, 1952. (The record also shows the dates of the military services of certain appellees in the Armed Forces of the United States, but in view of our decision on the controlling issue in this case, it will not be necessary for us to further note appellees' counter-contentions with respect to these matters.)

At the time of the execution and delivery of the 1918 deed, the other remaindermen mentioned in such deed, namely, J. H. Johnston, Jr., Bessie E. Ferguson and Sue Mildred Johnston, Children of J. H. Johnston, Sr., and brother and sisters of Louis T. Johnston, Sr., were living; and, at such time also, bessie E. Ferguson had two children, Jim Ed Ferguson and Elizabeth Ferguson Pool, two of the appellants herein.

The appellants are the sole surviving children of Bessie E. Ferguson, deceased, who died in the year 1933, and who, under the terms of the deed, succeeded to the remainder interest of their mother in and to the land in controversy upon her death.

By deed, dated the same day as the deed to Louis T. Johnston, Sr., J. H. Johnston, Sr., conveyed 200 acres of land, adjoining the West Boundary line of the 200 acres conveyed to Louis T. Johnston, Sr., for his life, to Bessie E. Ferguson for her life; said deed containing identical provisions to those in the deed to Louis T. Johnston, Sr., except for chages in the remaindermen made necessary by reason of there being a different grantee. The description of the land in the deed to Mrs. Ferguson fixes her Northeast corner and the Northwest corner of the 200 acres 'this day' conveyed to Louis T. Johnston, Sr., for his lifetime, and her East Boundary line as the West Boundary line of that tract.

The land in controversy is admittedly a part of the 200 acres described in the 1918 deed to Louis T. Johnston, Sr. Appellees proved good record title to the 29.99-acre tract in controversy.

Appellants' claim of title is based upon adverse possession under the ten year statute of limitation (Articles 5510 and 5514, Vernon's Rev.Ann.Civ.St.) with their first claim of adverse possession beginning in the year 1926, when acts of cultivation, use or enjoyment of the premises were first shown, and continuing to 1935, when the tract was first fenced, with continued cultivation, use or enjoyment of the tract continuing on to the time of the filing of the suit in 1956.

It is also particularly noted here that the life estate was created in 1918 and about eight years prior to appellants' first claimed possession of the land which began in 1926.

Appellees as plaintiffs filed this suit on July 12, 1956.

As above stated, Louis T. Johnston, Sr., the life tenant of the land in controversy died August 9, 1953. It is clear that under the deed in question appellees had no possessory interests in the tract in question until the death of the life tenant in 1953.

In a trial before the court, without the aid of a jury, judgment was rendered for plaintiffs for the title and possession of the tract sued for, and defendants have appealed.

This cause can be decided, and is decided, on one controlling matter. We hold that under the facts in this case limitation did not begin to run against appellees as remaindermen until the death of the life tenant in the year 1953. See the following authorities: Cook v. Caswell, 81 Tex. 678, 17 S.W. 385, 387; Hensley v. Conway, Tex.Civ.App., 29 S.W.2d 416, 418; Evans v. Graves, Tex.Civ.App., 166 S.W.2d 955, wr. ref., n. r. e.; Baylor Law Review, Vol. IX, No. 2, pp. 168-194. Since the suit was filed in 1956, obviously the statute had not run for the ten year statutory period.

Among the cases relied upon by appellants are the following: McConnico v. Thompson, 19 Tex.Civ.App., 539, 47 S.W. 537, wr. ref.; Elcan v. Childress, 40 Tex.Civ.App. 193, 89 S.W. 84, wr. ref.; and Howth v. Farrar, 5 Cir., 94 F.2d 654.

In Hensley v. Conway, supra (29 S.W.2d 416, 417) it is stated:

'We have reached the conclusion that this interest was not barred. The statutes of limitation as to an interest in land, which one owns as a remainderman, subject to a life estate in another, do not begin to run in favor of one in possession until the death of the life tenant. Gibbs v. Barkley, Tex.Com.App., 242 S.W. 462; Millican v. McNeill, 102 Tex. 189, 114 S.W. 106, 21 L.R.A.,N.S., 60, 132 Am.St.Rep. 863, 20 Ann.Cas. 74; Cole v. Grigsby, Tex.Civ.App., 35 S.W. 680; Id., 89 Tex. 223, 35 S.W. 792; Cook v. Caswell, 81 Tex. 678, 17 S.W. 385, 387; Willis v. Fiveash, Tex.Civ.App., 297 S.W. 509; Beaty v. Clymer, 32 Tex.Civ.App. 322, 75 S.W. 540; Phillips v. Palmer, 56 Tex.Civ.App. 91, 120 S.W. 911; Schnabel v. McNeill, Tex.Civ.App., 110 S.W. 558; Meurin v. Kopplin, Tex.Civ.App., 100 S.W. 984; Caffey's Ex'rs v. Cooksey, 19 Tex.Civ.App. 145, 47 S.W. 65; Kesterson v. Bailey, 35 Tex.Civ.App. 235, 80 S.W. 97; Govan v. Bynum, 17 Tex.Civ.App. 180, 43 S.W. 319; Morris v. Eddins, 18 Tex.Civ.App. 38, 44 S.W. 203; Haby v. Fuos, Tex.Civ.App., 25 S.W. 1121.

'In Olsen v. Grelle, Tex.Com.App., 228 S.W. 927, a case where the question of limitation arose as to the possession of defendants who were not strangers to the life estate, the statement of the rule as declared in the above authorities was narrowed so as not to include strangers. This we think cannot be regarded as a holding that limitation would run in favor of strangers in possession. The statement was made, no doubt, in deference to the decisions in McConnico v Thompson, 19 Tex.Civ.App. 539, 47 S.W. 537, and Elcan v. Childress, 40 Tex.Civ.App. 193, 89 S.W. 84, which do seem to so hold, and for the purpose of forestalling without discussion any contention that there was a conflict with said decisions. At any rate, there was no occasion presented for determining whether a different rule would apply to strangers. The cases of McConnico v. Thompson, supra, and Elcan v. Childress, supra, suggest two questions arising upon this record: (1) Do they correctly declare an exception to the general rule? and (2) Are the plaintiffs in this case and those under whom they claim, properly to be regarded as trespassers or strangers to the defendants' said title. These two questions we will consider in inverse order.

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'Limitation does not begin to run as against a cause of action until such cause of action accrues. 'The accrual of the cause of action means the right to institute and maintain a suit, and whenever one person may sue another a cause of action has accrued and the statute begins to run.' 37 C.J. 810; Deaton v. Rush, 113 Tex. 176, 252 S.W. 1025. It is elementary that a remainderman has no right of possession until the termination of the life estate. As said in Cook v. Caswell, supra: 'A plaintiff in an action of trespass to try title, must show that he has a possessory title to the land at the time of the demise laid in the petition. * * * This the plaintiff failed to do as to so much of the land as is represented by the life estate of his father, J. M. Caswell.' Nothing is more certain than that a present right of possession is essential to plaintiff's cause of action in trespass to try title. A necessary allegation of the plaintiff's petition prescribed by statute is 'that he was in possession of the premises or entitled to such possession.' R.S.1925, art. 7366. See, also, State v. Dayton Lbr. Co., 106 Tex. 41, 155 S.W. 1178; Stephens v. Motl, 82 Tex. 81, 18 S.W. 99; Carey v. Starr, 93 Tex. 508, 56 S.W. 324. Right of possession being an essential of a cause of action in trespass to try title, such cause of action, it seems to us, cannot accrue within the foregoing definition of accrual, until the life estate in some manner terminates. That reason for the statute not running, it is manifest, would apply to strangers and naked trespassers just the same as to those holding possession under the life tenant.

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