Glover v. Pfeuffer

• Decision Date: 21 January 1914
• Citation: 163 S.W. 984
• Parties: GLOVER et al. v. PFEUFFER et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

163 S.W. 984

GLOVER et al. v. PFEUFFER et al.^†

Court of Civil Appeals of Texas. San Antonio.

January 21, 1914.

Rehearing Denied February 25, 1914.

Appeal from District Court, Bexar County; R. H. Ward, Judge.

Action by Juan F. Rodriguez and others against Joe Priest and others, in which defendants H. B. Glover and Adele Glover filed a cross-bill against defendants Ida C. Pfeuffer, H. E. Hildebrand, and Joseph A. Burger. The issues as between all the others than the parties to the cross-bill were disposed of on appeal (126 S. W. 1187), and the case remanded for retrial on the issues under the cross-bill. Judgment was rendered for Ida C. Pfeuffer, Hildebrand, and Burger, and the Glovers appeal. Affirmed.

Henry E. Vernor, of San Antonio, for appellants. Wm. Aubrey, M. W. Davis, and Guinn & McNeill, all of San Antonio, for appellees.

FLY, C. J.

This is the second time this case has been before this court, being reported as Rodriguez v. Priest, 126 S. W. 1187. On the former appeal the judgment was affirmed as to all the parties, except appellants and appellees herein, and as to all the land except the 37 acres herein involved. There is a full statement of the case in our opinion on the former appeal, and it need not be repeated. The cause was tried by jury and resulted in the following verdict: "We, the jury, render a verdict in favor of the defendant, under the plea of the ten years' statute of limitations." Upon which a judgment was rendered in favor of Ida C. Pfeuffer, H. E. Hildebrand, and Joseph A. Burger for the land in controversy and all costs of suit. This appeal was perfected by Adele Glover and her husband, H. B. Glover.

The first, third, fourth, fifth, sixth, seventh eighth, ninth, tenth, and twentieth assignments of error assail the sufficiency of the evidence to sustain the verdict of the jury, and necessitate a review of the evidence and the authorities bearing thereon.

The evidence for appellees shows that Hildebrand and Stribling went into possession of the land in controversy in 1895, that they fenced it, and had tenants in possession of it from 1895 to 1908, when the land was first claimed by appellants. It was testified by appellees that two men, Miller and Schorp, took possession of a part of the land in the latter part of 1899, and held possession of it until ousted therefrom in the early part of 1901. The action of trespass to try title, through which Miller and Schorp were ousted, was instituted in September, 1900, about a year after Miller and Schorp admittedly went into possession. The evidence of appellants was to the effect that Miller and Schorp were in possession of the land for five or six years before they were ousted, that they built houses and fences and cross-fences thereon, and exercised undisputed possession over the land. The reason given by Hildebrand for his delay in instituting proceedings to dispossess Miller and Schorp was that he was endeavoring to persuade them to leave. The tenants of Hildebrand and Stribling, with some exceptions, did not live on the land. None of the tenants testified, although it was stated that efforts were made to find them. Schorp was holding adversely to Hildebrand and Stribling up to the latter part of 1900, and Miller so held up to the time he was ousted in 1901. Appellee Hildebrand testified: "During the entire time Miller and Schorp were upon the land, we had tenants on the land. Ramirez was on there during that time. It was several months after Schorp and Miller went upon the land that we instituted suit against them. I tried to induce them to leave the land. They stayed, and, after I found they would not do it, there was nothing left except to bring suit. * * * I don't think it was long after they refused to vacate the land, when I couldn't induce them to leave peaceably, I had to resort to a suit. Miller always refused to leave the land. He said he was going to get title to the land, but Mr. Schorp spoke in a different way about it. He said if he couldn't get title to the land he didn't want it and he would get off and very shortly after he was satisfied after consulting his attorney who advised him he should get off and then it was a question of his time for leaving."

Henry Fest, a witness for appellees, testified that the land was fenced in 1896, and has been fenced ever since. He swore that the "shack" built by Hildebrand was not there when he went to Schorp's house on the land.

The evidence clearly indicates that Miller and Schorp were in possession of at least a portion of the land for perhaps a year, and that they built houses and lived thereon, and Miller only left the land when expelled by an action of trespass to try title. In order to obtain a title by limitation, it has been held that there must be adverse possession, not only as to the owner but as to every one. But in the case of Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 31 L. R. A. (N. S.) 153, it is stated that the Supreme Court does not "agree that it is always true that a possession in order to be sufficient must be adverse to the whole world." In that case the owner of the land was the state, but the rule would be applicable to one owner as well as another, it would seem. The court illustrates its holding in this way: "If one who had held such a possession for the requisite period" of time "should become the plaintiff in trespass to try title, the bare proof of the facts stated might not enable him to recover, since it would not show title against the world. If he should go further, however, and show that the title had been in one as to whom his possession had been adversely held, the question would arise whether or not he had acquired that title. As has arisen in the cases referred to, the question has been as to the sufficiency of such a possession as a defense, and we do not dissent from the view that it may be sufficient for that purpose."

This case, however, is not one where the defendant holds the land adversely to the one claiming it, but in subserviency to some other title; but the question is: What effect does the entry upon or occupancy of the land by a trespasser have upon the possession of the person seeking to perfect a title by limitations? We have been unable to find any authority bearing directly upon this point in this state, although it would seem that the question would have arisen in numerous instances. Under the evidence of appellees, which the jury found to be true, appellees were not ousted from the possession of the entire land by the two trespassers, but maintained their possession against all the world except the trespassers who entered and took possession of a portion of the land. Was the continuity of appellees' possession broken thereby? In Texas "peaceable possession" is defined as being such possession "as is continuous and not interrupted by adverse suit to recover the estate." Undoubtedly, the possession of appellees, under that definition, was "peaceable" because no suit was instituted. "Adverse possession" is defined to be "an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another." The possession of appellees was evidenced by "an actual and visible appropriation" of the land for over ten years "commenced and continued under a claim of right inconsistent with and hostile to the claim" of appellants, unless the continuity of the possession was broken by the entry of trespassers upon the land without the consent and over the protest of appellees. The trespassers were not holding for appellants, but their claim was just as antagonistic to the claims of appellants as to those of appellees.

Under the common law the entry of the owner upon the land held by the person seeking to gain a title by limitations would interrupt the running of the statute, but the statute, hereinbefore quoted, has so changed the common-law rule that the continuity of possession cannot be broken by an entry of the owner, and a peaceable possession can only be interrupted by a suit being instituted and prosecuted. Shields v. Boone, 22 Tex. 193; Cobb v. Robertson, 99 Tex. 138, 86 S. W. 746, 87 S. W. 1148, 122 Am. St. Rep. 609. In the last-cited case the owner entered into possession of a part of the land and erected a fence so as to cut the party in possession off from the north one-half of the land. The latter in a few days tore down the fence and removed the material, and the suit was brought soon afterwards. Although the party claiming to own the land made an entry upon it and fenced one-half of it, the Supreme Court held: "Logan continued as before in the actual possession and use of the land, which was otherwise inclosed with other lands, as his pasture, and did not yield possession and was not ejected therefrom by the acts of Robertson. The latter never gained the possession of any part of the land, but the whole continued in Logan's possession." That is the law as to an entry by the owner, but that does not answer the question involved in this case, which is: Was the continuity of the possession of appellees broken by the entry of trespassers? If they had been representing the appellants, it is clear that the continuity would not have been interrupted. If they had been representing appellants, their entry upon the land would not have dispossessed appellees, and we fail to see that their entry as trespassers, who were not tolerated by appellees, should interrupt the possession of appellees so far as appellants are concerned.

Recurring to the question of whether the adverse possession required by statute in order to perfect a title by limitation should be adverse as against the world or merely as against the owner, it may be stated that there has been considerable conflict of opinion among some of the Courts of Civil Appeals, which has been reconciled, however, by the case of Smith v. Jones, herein cited, and it is now the settled law of Texas that the...