Greene v. White

• Decision Date: 26 February 1941
• Docket Number: No. 7658.,Motions No. 15191.,Motions No. 14919.,Motions No. 14914.,Motions No. 14915.,7658.
• Parties: GREENE et al. v. WHITE et al.
• Court: Texas Supreme Court

153 S.W.2d 575

GREENE et al. v. WHITE et al.

No. 7658.

Motions No. 14914.

Motions No. 14915.

Motions No. 14919.

Motions No. 15191.

Supreme Court of Texas.

February 26, 1941.

On Rehearing July 23, 1941.

COPYRIGHT MATERIAL OMITTED

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Suit by Mandy Garrett White and others against Mrs. Meda Greene and others, for the title and possession of a tract of land, wherein the Methodist Orphanage intervened. Judgment in favor of defendants for the oil, gas, and mineral estate in the tract was reversed by the Court of Civil Appeals, 129 S.W.2d 801, and defendants bring error.

Judgment of the Court of Civil Appeals reversed, and judgment of the District Court affirmed except as indicated in opinion, and cause remanded.

Dan Moody, of Austin, Carney & Carney, of Atlanta, Ben A. Harper, of Houston, Walace Hawkins, of Dallas, Charles B. Wallace, of Dallas, Vinson, Elkins, Weems & Francis, of Houston, King, Wheeler & Fulton, of Texarkana, Conner & Conner, of Eastland, F. A. Williams, of Galveston, Felts, Wheeler & Wheeler, of Austin, and W. H. Francis, of Dallas, for plaintiffs in error.

Wynne & Wynne, of Longview, Newland & Cornett, of Linden, Rodgers & Rodgers, of Texarkana, William Hodges, of Texarkana, W. B. Chauncey, of Wichita Falls, and R. O. Kenley, of Houston, for defendants in error.

SMEDLEY, Commissioner.

The subject of controversy herein is the title to the oil, gas and other minerals in a tract of land in Cass County containing about 133 acres. Defendants in error Mandy Garrett White and others sued plaintiffs in error Mrs. Meda Greene and others for the title and possession of a tract of land described as being in the Robert Trammel survey and containing 154 acres. The first count of the petition is a formal action of trespass to try title. In another count the plaintiffs allege acquisition and ownership of title by adverse possession for a period of more than ten years.

Upon the conclusion of the taking of testimony and the introduction of evidence in trial before a jury, an agreement of settlement was reached between plaintiffs and two of the defendants, Willis and Brown, and judgment was rendered in accordance with such agreement by which title and possession of the 33.37 acres of the land sued for were awarded to said defendants Willis and Brown. The jury was unable to agree upon answers to special issues submitted to it and the court, on the motion of the defendants, plaintiffs in error here, withdrew the case from the jury and rendered judgment in favor of the plaintiffs for the title and possession of the surface estate only in the tract of 133 acres of land, being all of the land described in the plaintiffs' petition except 33.37 acres thereof awarded by reason of the settlement agreement to Willis and Brown, and rendered judgment in favor of the defendants for the oil, gas and mineral estate in the 133 acre tract.

The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment in favor of defendants in error, plaintiffs in the trial court, for the title and possession of the mineral estate, as well as the surface estate, in the land in controversy and remanded the cause for trial of the issues as to damages. 129 S.W. 2d 801.

As is shown by the opinion of the Court of Civil Appeals, there are three important questions in the case: First, whether Alex Garrett and his wife, Mandy Garrett, who is Mandy Garrett White, one of defendants in error, acquired title to the land in controversy by adverse possession for more than ten years; second, whether the land in controversy is within the bounds of the James Davenport survey or within the bounds of the Robert Trammel survey; and third, what effect is to be given to a deed executed by F. M. Greene to Alex Garrett on March 2, 1910, conveying the land in controversy but reserving all minerals to Greene.

The Court of Civil Appeals held that the evidence conclusively shows that Alex and Mandy Garrett on March 2, 1910, had perfected title to the land in controversy under the ten years' statute of limitations; that it is conclusively established by the evidence that the land in controversy is wholly within the Robert Trammel survey and entirely without the bounds of the James Davenport survey; and that the deed from Greene to Alex Garrett of date March 2, 1910, reserving the minerals to Greene, in no way affected or impaired the title that Garrett and wife had theretofore acquired to the minerals, as well as to the surface, by adverse possession.

It is our opinion, after carefully reading the statement of facts, that issues of fact are made by the evidence, both with respect to adverse possession by Garrett and wife and with respect to the question of boundary, and further that effect, to the extent hereinafter stated, should be given to the Greene-Garrett deed and the reservation of minerals contained in that deed.

Defendants in error did not prove a record title to the land in controversy in Alex Garrett or Mandy Garrett, or anyone claiming under them. Their documentary evidence seems to show that, if the 133 acres of land in controversy is within the bounds of the Trammel survey, the record title to the north part of said land was in North Texas Land & Timber Company and the record title to the south part thereof was in J. M. Adams in about the year 1890. They offered oral proof to show that one Aus Thomas lived in a house on the land in 1894, and for a few years prior thereto, and moved from it in 1894; that Alex Garrett and his wife moved into the house when Thomas moved from it and that Alex Garrett said that he bought the land or the place from Thomas. There is no evidence that either North Texas Land & Timber Company or Adams conveyed the land in controversy or any part of it either to Thomas or to Garrett; and there is no evidence showing or tending to show that Thomas executed a deed conveying the land to Garrett, unless testimony that Garrett said he bought the land from Thomas and testimony that Garrett had deeds or title papers that he said Thomas gave him can be taken as evidence tending to prove that conveyance was made by Thomas to Garrett. There is no testimony showing by or to whom any such deeds or title papers were executed or what land was described in or affected by them. Defendants in error therefore rely for title upon adverse possession of the land by Alex Garrett and Mandy Garrett under the ten years statute of limitations.

Defendants in error take the position that the evidence so conclusively shows adverse possession of the land by Alex Garrett and his wife that, as a matter of law, all title was divested out of the record owners and vested in Garrett and wife. The evidence offered in support of this contention is the testimony of a number of witnesses that Aus Thomas moved on the land in about the year 1890, built a house and lived in it until sometime in 1894, when he moved off the land and Garrett and his wife moved upon it, that Garrett and his wife lived in the house and thereafter claimed and possessed the land and used it for a homestead until the trial of this suit. The evidence, however, does not, in our opinion, conclusively prove that Garrett and wife had for any period of ten years prior to the execution of the deed by Greene to Garrett on March 2, 1910, or prior to the ratification of that deed by Mandy Garrett, such exclusive, continuous, visible and hostile possession of the land in controversy as was necessary to invest them with title by adverse possession. W. T. Carter & Bro. v. Holmes, 131 Tex. 365, 367, 113 S.W.2d 1225.

Much of the testimony as to possession and claim by Garrett and wife comes from interested witnesses, parties to the suit. The testimony as to the extent and nature of their possession and use is vague and indefinite. The witnesses refer to land known as the Garrett land or the Garrett place but there is very little evidence as to fences or adjoining lands defining the land claimed, possessed or used. The testimony as to fences enclosing the land and as to names of persons owning or claiming adjoining lands, whenever it is at all definite, has reference to the land claimed or possessed in 1912 or 1914 and thereafter. Two or three witnesses testified that Alex Garrett cleared and farmed small areas of the land in controversy but the testimony does not show clearly the extent of the areas farmed or that such use of the land was continuous.

Mandy Garrett, one of defendants in error, like the other witnesses, failed to testify clearly and definitely as to the character of her possession and use of the property. The substance of her testimony is that she and Alex Garrett moved upon the place and thereafter lived on it and claimed to own it. When asked twice who moved off the place when she and Alex moved on, she answered "Nobody". She is a negro and cannot read or write, but it does not appear from her testimony or otherwise that she was at the time of the trial mentally incompetent to the extent that she could not have given testimony, had such been the facts, definitely showing that her possession was continuous, exclusive and hostile.

In contradiction of testimony offered by defendants in error that Aus Thomas lived on the land for several years immediately before Alex Garrett moved upon it, witnesses for plaintiffs in error testified that Aus Thomas at such times lived on land in Louisiana and on the Brooks land, which is west of the 133 acre tract involved herein, and not on the said 133 acre tract. There is evidence in the statement of facts from which it may fairly be inferred that such possession as Alex and Mandy Garrett had was, during a long period not exclusive and not hostile but permissive. Evidence was offered and admitted showing that much of the north part of the land in controversy was in the possession of North Texas Land and Timber Company (its lessee and its lessee's...