Fidelity Lumber Co. v. Howell

• Decision Date: 16 November 1918
• Docket Number: (No. 371.)
• Citation: 206 S.W. 947
• Parties: FIDELITY LUMBER CO. v. HOWELL et al.
• Court: Texas Court of Appeals

206 S.W. 947

FIDELITY LUMBER CO. v. HOWELL et al.

(No. 371.)

Court of Civil Appeals of Texas. Beaumont.

November 16, 1918.

Rehearing Denied December 11, 1918.

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

Action by the Fidelity Lumber Company against Mrs. R. C. Howell and others. From a judgment granting only part of the relief prayed for, plaintiff appeals. Affirmed as to part granting plaintiff relief, and, as to part in favor of named defendant, reversed and rendered.

Thomas & Wheat, of Woodville, for appellant.

R. A. Shivers, of Woodville, and V. A. Collins, of Beaumont, for appellees.

HIGHTOWER, C. J.

This was a suit of trespass to try title, and was filed in the district court of Tyler county on October 11, 1916. The plaintiff was the Fidelity Lumber Company, and the defendants were Mrs. R. C. Howell, S. C. Howell, B. C. Howell, D. Howell, G. C. Howell, J. W. Howell, a minor, Tom Howell, a minor, Gladys Howell, a minor, and Baby Howell, a minor. All the above-named defendants, except Mrs. R. C. Howell, are the children of I. P. Howell, deceased, and the said Mrs. R. C. Howell and the minor defendants above named, were represented by guardian ad litem upon the trial. The land sued for by the plaintiff, Fidelity Lumber Company, is a tract consisting of 480 acres, a part of section No. 41, G. & B. Navigation Company survey in Tyler county, which tract was fully described by metes and bounds in the plaintiff's petition. All the defendants above named, with the exception of G. C. Howell, filed a joint answer, in which they disclaimed as to all the land sued for by the plaintiff, with the exception of 160 acres thereof, which was described by specific metes and bounds in their answer. As to this 160 acres, said defendants answered by general demurrer, plea of not guilty, and further specially alleged that they had been in peaceable and adverse possession of this 160 acres for a period of more than 10 years before plaintiff's suit was filed and after its cause of action, if any it ever had, accrued, and the statute of limitation of 10 years was pleaded as to this 160-acre tract, in bar of plaintiff's recovery.

The defendant G. C. Howell filed a separate answer, in which he disclaimed as to all the land sued for by the plaintiff, except a tract thereof consisting of about 40 acres, described by specific metes and bounds, and to which he set up title under the statute of 10 years' limitation.

The case was tried with a jury and was submitted upon special issues by the trial judge, and upon the verdict returned by the jury, and the disclaimer filed by the defendants, judgment was entered in favor of the plaintiff, Fidelity Lumber Company, for all the land sued for, save and except the 160 acres claimed by specific metes and bounds by the defendant Mrs. R. C. Howell and the other defendants, except G. C. Howell, and as to this specific 160 acres judgment was rendered in favor of the defendant Mrs. R. C. Howell. From the judgment so rendered, Fidelity Lumber Company alone has appealed to this court.

From the record before us, it is clear that the appellant has a perfect title to all the land sued for by it and was entitled to judgment therefor, unless Mrs. R. C. Howell has acquired title to the 160 acres awarded her by the judgment under the statute of limitation of 10 years.

We make the following findings of fact from the undisputed evidence as shown by the record in this case:

In the fall of 1898, I. P. Howell, who was the husband of the appellee Mrs. R. C. Howell, and the father of the other defendants below, entered upon the tract of land in controversy with his said family. At the time he so entered, there were some small improvements upon the land, consisting of a small dwelling house and perhaps other small houses used in connection therewith, and there was a clearing or small field consisting of 6 or 7 acres. I. P. Howell bought these improvements from one J. D. Brown, and with his family continued to occupy and use the premises peaceably and cultivated the same, and claimed the same adversely until some time in October, 1906, when J. A. Mooney, who was at that time the owner of said 480-acre tract of land, brought suit in the district court of Tyler county against said I. P. Howell in the form of trespass to try title to recover the title and possession of said 480-acre tract of land. On the 18th day of December, 1906, judgment was rendered by the district court of Tyler county in said cause of J. A. Mooney v. I. P. Howell for the title and possession of said 480-acre tract of land, and by that judgment a writ of restitution and possession was awarded in favor of Mooney. This judgment constitutes a link in appellant's chain of title. In that cause the defendant, I. P. Howell, was duly cited, but did not appear, and no answer was filed by him or by any one for him, and judgment in that cause was in favor of Mooney by default. There was no appeal from that judgment, and the same became final; nor have any steps ever been taken to set the same aside by the said Howell, nor by any one for him.

At the time said suit of Mooney v. Howell was filed, the said I. P. Howell was insane, and he was insane at the time the judgment in said cause was rendered, and the evidence in the record is sufficient to warrant a finding by a jury that I. P. Howell was insane for perhaps two or three years before the filing of the suit against him by J. A. Mooney. After judgment was rendered in favor of Mooney, as before stated, I. P. Howell and his family continued to occupy the land and claimed the same as their homestead until some time in the fall of 1910, when I. P. Howell died. From the time that I. P. Howell became insane, whatever the date was, and until the death of I. P. Howell, he and his family continued jointly to occupy, use, and enjoy the premises on which they were living, and continued to claim 160 acres thereof adversely; but there was no change in the marital relations between I. P. Howell and his wife, Mrs. R. C. Howell, until severed by death of I. P. Howell in 1910. I. P. Howell was not at home all the time between the date of said Mooney judgment and up to his death in 1910, but was frequently away from home at work, and would usually come home on Saturday evenings and return to his place of work on Sunday evenings following. I. P. Howell, notwithstanding the judgment in the Mooney Case, continued to enjoy the premises in controversy as his homestead, and there was no claim on the part of Mrs. R. C. Howell to any portion of the land in controversy as against her husband, I. P. Howell, and she during all the period of their marital relations recognized him as her husband, and treated him as such, and the children, adult and minors, recognized him as their father and treated him as such, and all of them recognized his claim and right, whatever it was, to the land in controversy up to the time of his death in 1910. Mrs. R. C. Howell, however, testified on the trial that after her husband became insane she considered that she thereby became the head of the family, and from that time she states that she claimed 160 acres of the land in controversy adversely and in her own right, and that the possession of the premises was her possession, and that no suit had ever been brought by any one against her until the present suit was filed, and under such circumstances she claims she has acquired title to the 160 acres recovered by her.

The record shows without dispute that, at the time the suit of Mooney v. I. P. Howell was filed in 1906, the plaintiff, Mooney, had no knowledge or notice of I. P. Howell's insanity, nor had he any such knowledge at the time judgment in said cause was had.

The appellant in its brief makes a number of assignments of error, but we shall not take them up in the order made, but we think that what we shall say in our conclusions of law upon the above facts will have the effect to dispose of them all.

Now the trial court submitted to the jury the following special issues having relevancy to the assignments of error here:

Issue No. 1: "Was I. P. Howell an insane person on October 15, 1906, the date of the institution of the suit entitled Mooney v. Howell?"

To this issue the jury answered: "Yes."

Issue No. 2: "Has Mrs. R. C. Howell had actual, peaceable, and adverse possession of the specific 160 acres of land described in her answer, or any part thereof, cultivating, using, or enjoying the same, for a period of 10 full years before the 11th day of December, 1916, and subsequent to the time that her husband, I. P. Howell, became insane?"

To this issue the jury answered: "Yes."

Issue No. 4: "Has Mrs. R. C. Howell had actual, peaceable, and adverse possession of the specific 160 acres of land described in her answer, or any part thereof, cultivating, using, or enjoying the same, for a period of 10 full years before the 11th day of October, 1916, and subsequent to the time that her husband, I. P. Howell, became insane?"

To this question the jury answered: "Yes."

Issue No. 6: "If you have found that I. P. Howell was insane, then state if he had become so insane prior to October 11, 1906."

To this issue the jury answered: "Yes."

It is the contention, in effect, of appellant that upon the undisputed facts, as we have substantially above stated them, and as the same must be...