Goslin v. Beazley

• Decision Date: 15 September 1960
• Docket Number: No. 13345,13345
• Citation: 339 S.W.2d 689
• Parties: C. R. GOSLIN et al., Appellants, v. Julia BEAZLEY et al., Appellees.
• Court: Texas Court of Appeals

Page 689

339 S.W.2d 689

C. R. GOSLIN et al., Appellants, v. Julia BEAZLEY et al., Appellees.

No. 13345.

Court of Civil Appeals of Texas, Houston.

Sept. 15, 1960.

Motion for Rehearing Overruled in Part and Granted in Part,

Oct. 20, 1960.

Second Motion for Rehearing Overruled Nov. 10, 1960.

C. R. Goslin, Houston, and P. Harvey, Houston, of counsel, for appellants C. R. Goslin, Fred Morris, A.A. LaBauve, A. W. Bordman, Ben Falk and Lee Falk.

John M. Robinson, Houston, for appellant Henry White.

Erwin, Wagner & Hodson, Willard B. Wagner, Houston, for Mrs. Winnie L. Morris, a widow, and Elmer F. Morris.

Joel W. Cook, Houston, for appellee H. A. Phillips, Trustee.

Rolland Bradley and Nowlin Randolph, Houston, for appellees other than H. A. Phillips, Trustee.

WERLEIN, Justice.

On July 7, 1960, this Court handed down its opinion in this cause, Chief Justice Bell not participating although he sat at submission of the case. Recently, while considering motions for rehearing filed herein, it was for the first time discovered that Justice Woodruff is disqualified on this appeal because of his relationship within the third degree to one of the parties of the suit. Chief Justice Bell is not disqualified and is now participating herein, but since he did not participate in the case previously and because of Justice Woodruff's disqualification, it is ordered by the Court that said opinion of July 7, 1960 be and the same is hereby withdrawn, and the following is substituted as the opinion of the Court:

Appellees brought this suit in trespass-to-try title and for damages against appellants and numerous other defendants. The suit involves approximately 61.28 acres of land on the San Jacinto River near its confluence with the Houston Ship Channel in Harris County. On March 24, 1958 final judgment for the land was rendered in favor of appellees against all defendants not previously dismissed, such judgment being upon disclaimer by two defendants, by default against eight, and upon motion for summary judgment against all the rest of the defendants, including the appellants. The court also rendered judgment against appellants for $50 damages. The defendant, Henry White, cited by publication and who filed an answer and cross-action by his attorney ad litem, has not perfected an appeal from the judgment, and the only appellants are C. R. Goslin, Fred Morris, A. W. Bordman, A. A. LaBauve, Ben Falk and Lee Falk.

Appellant Fred Morris died May 15, 1959, and his sole heirs at law, to wit, his widow, Mrs. Winnie L. Morris, and his son, Elmer F. Morris, have filed a motion in this Court to affirm the trial court's judgment. Appellants Ben Falk and Lee Falk, disclaimed as to all the land except Lot 9 of the Blum Subdivision, and pled not guilty as to such tract. Appellants, Fred Morris and C. R. Goslin, pled not guilty. Appellant, A. W. Bordman, disclaimed as to all of the land except the south 1/2 of the south 1/2 of Lot 8 of said Subdivision, and an 8 acre tract out of Lot 9 of said Subdivision which he alleged he conveyed to his co-defendant, C. R. Goslin. Appellant, A. A. LaBauve, disclaimed as to all the land except the north 1/2 of the south 1/2 of Lot 8 in said Subdivision, to which excepted tract he pled not guilty.

By their first three Points appellants contend that the court erred in granting the summary judgment because the evidence raises material fact issues as to the credibility of the witnesses and as to whether appellees have title by limitation.

A short resume of the testimony with respect to appellees' limitation title is necessary in order to pass upon said Points. The evidence consists of depositions covering more than 700 pages of testimony and numerous exhibits and affidavits, in addition to the pleadings.

The evidence shows that on April 30, 1913 one John Farmer conveyed to John Beazley, Sr. 'those certain tracts and parcels of land lying and being situated in Harris County and State of Texas, and being more particularly described as follows to wit: Being a part of the N. Lynch, H. R. Survey. 1st. (22 1/2) twenty two and one half acre tract in lot No. 8, of the Blum Subdivision being the same property as described scribed in deed from E. H. Bettis et al. to John Farmer recorded in Vol. 261 page 337. 2nd. The Hudson ten (10) acre tract out of lot No. 9 of the Blum subdivision being the same property as described in deed from P. W. Hudson to John Farmer recorded in Harris County deed records Vol. 261 page 338. 3rd. The Farmer (15) fifteen acre tract, being out of lot No. (9) Nine of the Blum subdivision and being the same property as described in deed from E. H. Bettis et al. to John Farmer recorded in Harris County deed records Vol. 248 page 270' of said deed records.

Appellees, who are the Beazley heirs, have claimed the land involved in this suit as being that so conveyed to Beazley and have called it 'The Farmer land.' They claim that they have had possession, use and enjoyment of the land from 1913 to the latter part of 1956 through tenants, the first being Dick Tompkins, who leased the land from 1913 to 1928, and the second tenant being the appellant Morris, who leased the land from about January, 1929 to the latter part of 1956, at which time he ousted appellees from possession. Taxes were paid on the land by the Beazleys from 1914 to 1956, inclusive, with no delinquencies except the taxes for the year 1943 which were paid when several months past due.

W. C. Lord stated in his affidavit that he had been familiar with the land involved in this suit since 1900. He and Dick Tompkins were close friends, and he knew that Tompkins had the land leased from 1900 to 1928 and regularly ran cattle thereon and kept the fences in good repair. He further testified that he passed along the south line of the property frequently for the first 30 years as the old road to the Lynchburg ferry was along that line, and that the old south fence was still standing until two or three years ago and was in the same location it had been since 1900.

D. R. Thayer, who was raised in the Lynchburg area, stated that he hunted on the land as a boy of eleven in 1923 and he continued to hunt thereon until 1939. He knew that Tompkins and Morris, at different times, had the property leased during all the time that he was familiar with it and that they ran cattle on if from 1923 to 1939. He identified the land as being the 61.28 acres of land shown on the surveyor's plat made in 1956. During all of the 16 years that he hunted on the land there were good substantial fences on the north, the east and the south sides of the property, and all kept in good enough repair to turn cattle. He found many of the old posts of such fences still standing a few days before he made his affidavit on November 27, 1957. There was never any fence on the west side of the property as the San Jacinto River served as a barrier to cattle there just as it does for all the land in that area.

W. E. Reid, who lived continuously in the Lynchburg area from 1916 to 1949 and was familiar with the property in question, stated in his affidavit that he first became acquainted with the property when it was operated by his cousin, Dick Tompkins, who grazed cattle on it. Tompkins continued to lease it for many years and until appellant Morris became the tenant. Reid testified that he never heard of either Tompkins or Morris claiming to own any part of the land. During all the time that Reid knew the land it had a good fence, sufficient to turn cattle, on the north, east and south sides, and on the west side the San Jacinto River was used as an obstacle to turn cattle.

Robert M. Atkinson, a registered professional engineer and registered public surveyor, stated that he made a survey on the ground in the fall of 1956, and that he found an iron pipe which was the common corner of Lots 9, 8, 6 and 5 of the Blum Subdivision as set by an earlier surveyor and was able to find numerous other original markings, including an old fence on the east line of the property which had obviously been used for a great many years as he found many trees where the old wires apparently went directly through the trees or the trees encircles them, and he found a similar fence on the north line with many wires imbedded in trees. Atkinson's survey shows that the south one-half of Lot 8 included within the Beazley tract contains 20.53 acres instead of 22 1/2 acres, as described in the Bettis deed to Farmer, and that Lot 9 contains 40.75 acres. His field notes are those used in the petition of appellees.

Hamilton Beazley, one of the appellees, stated in his affidavit that he had always understood and claimed that the deed to his father from Farmer conveyed all of the land involved in the present suit, that is, all of Lot 9, and the south 20.53 acres of Lot 8 in the Blum Subdivision, and that such land was always known to him as 'the Farmer land'; that he and the other appellees were the sole owners of the land as devisees under the will of John Beazley, Sr. and claimed the land by record and limitation title as being the land sold by John Farmer and conveyed by said deed; that all three of the fences on the south line, the east line and the north line were good 4-wire fences capable of turning cattle in 1944 when he went hunting on the property and went all over it; that in 1956 and 1957, shortly before some of the appellants tore down the old fences, he went over the property twice and found much of the old fences still standing, all of them along the same lines where they had been before.

Julia Beazley, daughter of John Beazley, Sr., who died October 8, 1914, stated in her affidavit that she and her sister, Mrs. Gaillard, took over the management of her father's estate as executrices under his will; that after her father's death in 1914 and until the end of 1928 the property involved in the suit was leased to a man named Dick Tompkins, who paid regular rent although occasionally a little...