Fowler v. Hardee

• Citation: 16 S.W.2d 154
• Decision Date: 28 February 1929
• Docket Number: (No. 7290.)
• Parties: FOWLER et al. v. HARDEE et al.
• Court: Court of Appeals of Texas

16 S.W.2d 154

FOWLER et al. v. HARDEE et al.

(No. 7290.)

Court of Civil Appeals of Texas. Austin.

February 28, 1929.

Motions for Rehearing Denied March 20, 1929.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Brown County; J. O. Woodward, Judge.

Action by C. A. Hardee and others against Samuel O. Fowler and others. Judgment for plaintiffs, and defendants appeal. Affirmed in part, and in part reversed and remanded.

Lee & Gray and Woodruff & Holloway, all of Brownwood, for appellants.

Sweet & Nabors, of Brownwood, for appellees.

McCLENDON, C. J.

Appellees sued appellants and others in trespass to try title to recover two tracts of land, aggregating 265 acres out of the 640-acre Samuel O. Fowler survey, No. 22, in Brown county. Appellees asserted their right to recover both under a regular chain of title from the sovereignty of the soil and under the five and ten year statutes of limitation. The judgment was in favor of appellees (plaintiffs below) against all of the defendants below, including appellants, upon a directed verdict.

Appellant John G. Cross claimed as sole heir at law of Sam Houston Chandler and the remaining appellants as sole heirs at law of Jesse R. Chandler. The issues involved grow out of the following undisputed facts:

Weldon W. and Sarah Chandler, husband and wife, were the parents of thirteen children, all of whom survived Weldon W. Chandler, who died intestate in 1870. Four hundred acres undivided out of the Fowler survey were conveyed to Weldon W. Chandler on June 8, 1868. The remaining 240 acres undivided were conveyed to Sarah Chandler as surviving wife of Weldon W. Chandler, on August 8, 1872, the deed reciting that it was in consummation of a bond for title to Weldon W. Chandler, dated October 18, 1865, which recitation the record shows to be correct. Sam Houston Chandler and Jesse R. Chandler were two of the thirteen children of Weldon W. and Sarah Chandler. One of the children died intestate and without issue before the death of Weldon W. Chandler. Another married Charles Hardee, and it is under Mrs. Hardee and her husband that appellees claim. By several deeds executed in 1885, 1886, 1888, and 1893, the interest of Sarah Chandler and six of the thirteen children was conveyed either to Mr. or Mrs. Hardee. The interest of another child passed to Mrs. Hardee in 1918 by quitclaim deed, reciting a consideration of $100 and love and affection. The record does not give the names of the remaining two children. Appellees' brief states that the interests of all of the children except Sam Houston and Jesse R. Chandler were acquired by the Hardees. The only evidence we find in the record to bear this out is the following testimony of F. W. Hardee:

"I knew all the old ones (Chandler heirs). I knew my father had a deed from all of them except Sam and Jess. Those are the two I knew he didn't have a deed from."

It is possible that the two remaining children or their heirs were named parties defendant, but this we are unable to verify. However, we regard this omission in the record as of no importance in the view we take of the case. The record shows that the appellants, except Cross, were the sole heirs at law of Jesse R. Chandler. With reference to Cross' heirship to Sam Houston Chandler, the record shows that the latter died in 1884, and was survived by his wife and one son, Sam Houston Chandler, Jr. The surviving wife married one Cross, and to them were born two children, one of whom died at the age of two years, and the other was John G. Cross, appellant. Both Mr. and Mrs. Cross died many years ago when Sam Houston Chandler, Jr., was not over 14 or 15 years old, at which time one of his aunts took him to Oklahoma, and nothing further was known of him. John G. Cross' claim of heirship to his half-brother, Samuel Houston Chandler, Jr., is based upon the statutory presumption of death arising from 7 years' absence.

We think the evidence insufficient to raise this presumption under the holding of the following cases to the effect that, where a person changes his residence from one state to another, evidence "that he had not been heard of in the former state for a period of seven years, does not make a case within the statute." Stiles v. Hawkins (Tex. Com. App.) 207 S. W. 89; Latham v. Tombs, 32 Tex. Civ. App. 270, 73 S. W. 1060.

Appellees' limitation claim under the 5-year statute is predicated upon partition deeds between them filed for record November 1 and 4, 1922. Appellees' original petition, upon which they went to trial, was filed October 17, 1927, and appellants' answer was filed November 22, 1927. We overrule appellants' contention that limitation was not tolled until answer filed. Appellees must recover upon the strength of the title they pleaded, and could not, in the absence of an amendment asserting it, show title acquired after the filing of the suit. Erp v. Tillman, 103 Tex. 574, 131 S. W. 1057; for other cases see 22 Texas S. W. Dig., "Trespass to Try Title."

Over appellants' objection, W. F. Hardee was permitted to testify to a verbal sale in the early 80's by Samuel Houston Chandler, of his interest in the land, to witness' father, Charles Hardee. On cross-examination it was developed that all the knowledge of the witness in this regard was acquired from conversations with his father at which Samuel Houston Chandler was not present. This testimony was clearly hearsay, and we sustain the propositions complaining of it.

Upon appellees' limitation claim of 10 years, the record shows the following: About 1880 the Hardees took possession of the land, built a house thereon, fenced the pasture land, and put other land in cultivation. From that time until the trial they have been in possession, cultivating and using the land, occupying it as a home, paying the taxes, and claiming it as their own. In 1894 Charles Hardee and wife gave a deed of trust on a 300-acre tract out of the survey. This instrument was recorded at the time, and later the trustee foreclosed under it, and the purchaser thereafter sued Jesse and Samuel Houston Chandler in trespass to try title, and in 1905 recovered the land. In this suit Jesse R. Chandler was personally served and Samuel Houston Chandler was served by publication. Judgment against the former was by default. In 1914, Charles Hardee having died, community administration was taken out on his estate, and the inventory listed as a part thereof "261 acres of land out of the S. O. Fowler survey No. 22 of land in Brown County, Texas."

Appellants introduced a letter written by Jesse R. Chandler from Toyah, Tex., to his sister, Mrs. Hardee, dated November 30, 1918, reading:

"No doubt you will be surprised to receive a letter from me. This will be a short letter, as I am writing a strictly business letter. I have been advised that you are claiming to have become in possession of my interest in the land known as the Estate of W. W. and Sarah Chandler. Just a short time before I left Brown Co. Charley talked with me about my part of the land. He said he wanted to buy my interest and offered me a pony as part pay on the land. I told him when the land was paid that I would give or make him a deed for same. After this he advised me that the pony had fell off of a bluff and killed himself. So there was never any more said about it. Now, Sister Sallie, there is no use of us getting into law about this matter, when we can settle this without it. I know you have no deed to my land and Brother Sam's heirs, so please let me know what you will do about this matter, as you are bound to know you can't dispose of this land without getting in trouble, that I don't want to cause you, as we are all older and can't live much longer. So I insist on you as a brother to let us settle this matter without trouble. Now, if you want the land, send me a proposition, and if it suits me we will trade, and I will make you or anyone you suggest a deed. I guess you see Lissie and Ed occasionally. Expecting to hear from you soon, as ever your brother."

Appellants claim (1) that the above evidence was insufficient to raise the issue of notice to Jesse R. Chandler (a cotenant) of the adverse claim of the Hardees; or (2) that the issue so raised was one of fact. Appellees claim that the evidence established such notice as a matter of law.

We are clear in the view that the evidence raises the issue of notice, and we have reached the conclusion that the question presented is one of fact only.

The general principles involved in this issue are embodied in the following quotations:

"The possession of a cotenant or tenant in common will be presumed to be in right of the common title. He will not be permitted to claim the protection of the statute of limitations unless it clearly appears that he has repudiated the title of his cotenant and is holding adversely to it. Possession and payment of taxes on the property do not constitute the assertion of an adverse right. There must be something more. Alexander v. Kennedy, 19 Tex. 496 . The acts relied upon by the tenant in common in showing an ouster of his cotenants and the assertion of an adverse claim should be more certain and unequivocal in character than would be necessary in ordinary cases where there is no privity of estate between the parties claiming the property; and in order to affect the cotenants with this adverse holding notice of such fact must be brought home to them, either by information to this effect given by the tenant in common asserting the adverse right; or by such acts of unequivocal notoriety in the assertion of such adverse and hostile claim that they will be presumed to have notice of such adverse right." Phillipson v. Flynn, 83 Tex. 583, 19 S. W. 138.

"In order to put the statute of limitation in operation, the cotenant not in possession must have actual knowledge of the fact that the cotenant in possession is disputing his right to the property, or such cotenant's possession and assertion of...