Gerhart v. Moore

• Decision Date: 01 March 1921
• Docket Number: (No. 8028.)
• Citation: 229 S.W. 876
• Parties: GERHART et al. v. MOORE.
• Court: Texas Court of Appeals

229 S.W. 876

GERHART et al. v. MOORE.

(No. 8028.)

Court of Civil Appeals of Texas. Galveston.

March 1, 1921.

Rehearing Denied March 31, 1921.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Action by William A. Moore against E. N. Gerhart, Frank Gerhart, and others. Judgment for plaintiff, and defendants named alone appeal. Affirmed.

A. C. Allen and Taliaferro & Sonfield, all of Houston, for appellants.

LANE, J.

This suit was instituted in May, 1919, by appellee, William A. Moore, in the form of trespass to try title to certain blocks and lots in what is designated as Brunsville, containing in the aggregate about 27 acres, the same being a part of a certain 100-acre tract known as the John Pugh tract, situated in Harris county, Tex. The suit was against appellants, E. N. Gerhart and Frank Gerhart, and Mrs. Maggie Gerhart and her husband, Charles Gerhart, the Houston Ice & Brewing Association being also made a party defendant, it having conveyed the land to appellee by warranty deed.

Mrs. Maggie Gerhart and husband, Charles Gerhart, filed their disclaimer and have not appeared, and therefore will not be further mentioned as parties to the suit in this opinion.

Appellants, E. N. Gerhart and Frank Gerhart, answered by plea of not guilty and by specially pleading that they purchased a certain 100 acres, of which the land sued for by the plaintiff is a part, from one Terry Farrell, as evidenced by her deed of date November, 1916, and that they are the owners of said 100 acres, including the land sued for by the plaintiff. They also pleaded that they and Terry Farrell, under whom they claim, had held such possession and made such use of the whole of said 100 acres as had ripened into title under the statutes of limitation of three, five, and ten years.

The Ice & Brewing Company answered by general denial.

It was shown that one John L. Pugh and wife formerly owned a tract of land of several hundred acres, and that in a partition of which between his heirs one subdivision thereof, containing a few acres more than 100, was set aside to his son, John Pugh, and was designated as subdivision No. 2; that another subdivision of about 100 acres, lying just to the east and adjoining tract No. 2, was set aside to Mrs. Maggie Gerhart; that the 27 acres sued for by the plaintiff is a part of the 100 acres so set aside in John Pugh.

It was shown that appellee claimed and held the land he sued for by a regular chain of title from John Pugh.

It was also shown that in May, 1893, Maggie Gerhart, joined by her husband, Charles Gerhart, John Pugh, Emma Pugh, W. T. Pugh, and H. H. Bruns, entered into an agreement with one A. E. Stimson, a surveyor, to subdivide several tracts of land owned by the several parties, containing 334 acres, among which was the tract set aside to John Pugh in the partition above mentioned; that thereafter in said year said land was subdivided into blocks, lots, streets, and alleys, and that such streets and alleys were dedicated to the public as highways for the ordinary use of the public; that a plat or map of which subdivision showing such lots, blocks, streets, and alleys was at that time made and duly recorded in the deed records of Harris county; that such subdivision was designated and known as the town of Brunsville, and many of said lots and blocks were thereafter sold by their owners to various and sundry persons; and that said lots and blocks so sold were described by reference to said recorded plat or map.

It is shown that prior to the 1900 storm an old negro man by the name of Farrell and his wife, Terry Farrell, lived on the north end of the John Pugh 104-acre tract of land as the tenants of said Pugh; that said storm wrecked the house in which the Farrells lived, and that by the consent of Pugh they moved into an outhouse situated on 3 acres of land off the south part of said Pugh tract, about 50 feet from Pugh's residence, which was also on said 3 acres; that said 3 acres were fenced at the time Farrell moved upon it; and that such fence did not enclose any of the property sued for by plaintiff.

It is shown that John Pugh died in 1904 and left Farrell and his wife, Terry Farrell, living on said 3-acre tract, and that Farrell and wife continued to live on the same until the year 1912, at which time he died, and that after his death his wife, Terry Farrell, continued to live thereon until about the year 1916, at which time she executed and delivered to appellants Gerhart her deed, by the terms of which she conveyed the John Pugh 100-acre tract to them.

It is shown that in the year 1901 John Pugh conveyed to Lizzie and Joe Crispi all of his said tract of 104 acres, except such as he had theretofore sold, and that the title to the same passed from Crispi to the Houston Ice & Brewing Company, and the Ice & Brewing Company by its warranty deed conveyed the same land to appellee, W. A. Moore.

It was shown that appellants took possession of the 3 acres on which the Pugh house was situated in 1916, and about that time inclosed the other parts of the John Pugh tract, including the lots and blocks owned and sued for by appellee, Moore.

The case was tried before the court without a jury, and judgment was rendered in favor of appellee, Moore, for the land sued for, and against appellants Gerhart, and also...