Flewellen v. Randall

• Decision Date: 01 May 1903
• Citation: 74 S.W. 49
• Parties: FLEWELLEN et al. v. RANDALL et al.
• Court: Texas Court of Appeals

74 S.W. 49

FLEWELLEN et al. v. RANDALL et al.

Court of Civil Appeals of Texas.

May 1, 1903.

Appeal from District Court, Smith County; J. Gordon Russell, Judge.

Action by W. F. Flewellen and others against Eatonton Randall and others. Judgment in favor of Randall. Plaintiffs appeal. Reversed.

C. G. White, for appellants. F. J. McCord, for appellees.

GILL, J.

This is an action of trespass to try title, brought by the appellants, W. F. Flewellen and his coplaintiffs, against the appellees, Eatonton Randall, J. L. Landies, Geo. W. Cowan, and B. F. Read, for the recovery of 67 acres of land. The defendants pleaded not guilty, and Eatonton Randall claimed the entire tract under a plea of limitation of 10 years. A trial before the court without a jury resulted in a judgment in favor of Eatonton Randall, from which the plaintiffs have appealed. The other defendants do not complain of the judgment as to them. The trial court found that the record title to the land sued for was in the plaintiffs as heirs and devisees of Thomas Flewellen, deceased, to whom the land was patented, but that defendant Randall had acquired the title by limitation of 10 years.

The facts, which are practically undisputed, are as follows: Thomas Flewellen owned the land as patentee. Randall married a widow, who owned the land adjoining. He and his wife lived on this, adjoining land, which was improved. Randall and Flewellen were neighbors and acquaintances. Both supposed that the 67-acre tract was vacant public land, and, on the suggestion of Thomas Flewellen, Randall entered upon the land with the intention of acquiring it from the state. It does not appear, however, that he ever did anything in this direction more than to fence and cultivate about 20 acres of the tract. This character of possession, use, and enjoyment continued for more than 10 years, all the parties believing the title to be in the state until a short time prior to this suit. The possession of Randall was open, and his purpose then to acquire the entire tract was notorious. It was particularly known to both the plaintiffs and their ancestor, and the claim of Randall was adverse to all the world except the supposed owner. Under this state of facts the appellants contend that such a claim will not support the 10-year statute, and that nothing short of an adverse claim against the entire world and assertion of ownership in the occupant will suffice. The appellees contend that the possession thus shown by the...