Griffin v. Reynolds

• Decision Date: 02 June 1937
• Docket Number: No. 5036.,5036.
• Citation: 107 S.W.2d 634
• Parties: GRIFFIN et al. v. REYNOLDS.
• Court: Texas Court of Appeals

107 S.W.2d 634

GRIFFIN et al. v. REYNOLDS.

No. 5036.

Court of Civil Appeals of Texas. Texarkana.

June 2, 1937.

Rehearing Denied June 10, 1937.

Appeal from District Court, Gregg County; Will C. Hurst, Judge.

Suit by J. P. Griffin and others against J. S. Elder, Roy A. Reynolds, and others, wherein the defendant Roy A. Reynolds had the plaintiffs' cause of action against him severed from the original suit and filed a cross-action against them. From a judgment for the defendant Roy A. Reynolds on the trial of the severed cause against him, the plaintiffs appeal.

Affirmed.

Edward A. Brown and D. B. Chapin, both of Longview, for appellants.

Lee, Porter & Latham, of Longview, Phillips, Trammell, Chizum, Estes & Edwards, of Ft. Worth, and Dudley, Hyde, Duvall & Dudley, of Oklahoma City, Okl., for appellee.

JOHNSON, Chief Justice.

Appellants, J. P. Griffin, Annie L. Cosper, and Maggie Griffin Hart, joined pro forma by her husband, Ernest F. Hart, claiming to be devisees under the will of T. M. Griffin, Sr., filed this suit September 20, 1933, in the district court of Gregg county, against J. S. Elder and a number of other persons including appellee, Roy A. Reynolds, to recover title and possession of a certain 150-acre tract of land, a part of the Mary Van Winkle survey, in Gregg county, and for damages occasioned by the removal of mineral substances from the land. The cause was styled J. P. Griffin et al. v. J. S. Elder et al., and numbered 8813-A on the docket of said court. On motion of defendant Roy A. Reynolds, plaintiffs' cause against him was severed from the original suit and the severed cause as against Roy A. Reynolds was separately docketed and given the number 8813-A1 on the docket of said court.

Plaintiffs pleaded their title specially. In so far as necessary to mention, the petition alleges that T. M. Griffin, deceased 1878 (referred to as T. M. Griffin, Sr.) is the common source of title. That under the will of said T. M. Griffin, Sr., his nephew whose name was also T. M. Griffin (referred to as T. M. Griffin, Jr.), acquired a life estate in the land, with remainder to his heirs. That plaintiffs are the children and sole heirs of said T. M. Griffin, Jr., deceased 1903. That defendants claim title by mesne conveyances from and under T. M. Griffin, Jr. That upon the death of T. M. Griffin, Jr., the estate held by defendants and those under whom they claim terminated, and since which time their possession has been that of tenants at sufferance of plaintiffs, the remaindermen.

Defendant Roy A. Reynolds, claiming to be the owner of seven-eighths of the minerals in and under a certain 20.91-acre tract forming a segregated part of the 150-acre tract described in plaintiffs' petition, filed an answer pleading not guilty, and the three, five, and ten years' statutes of limitation, and improvements in good faith, and a cross-action against plaintiffs to recover the mineral interest claimed by him in said 20.91 acre tract, specially pleading in support of his cross-action the three, five, ten, and twenty-five years' statutes of limitation.

Trial of the severed cause against Roy A. Reynolds was to the court without a jury upon an agreed statement of facts, and resulted in judgment that plaintiffs take nothing by their suit against Roy A. Reynolds, and that Roy A. Reynolds recover of plaintiffs the mineral interest claimed by him in the 20.91-acre tract described. Plaintiffs have appealed.

The appeal presents two issues of law:

(1) Did the will of T. M. Griffin, Sr., pass a fee-simple title in the land to his nephew, T. M. Griffin, Jr., or did it pass only a life estate to said T. M. Griffin, Jr., with remainder to appellants, his sole heirs?

(2) In the event the will of T. M. Griffin, Sr., passed only a life estate to T. M. Griffin, Jr., with remainder to appellants, has limitation run against appellants in favor of appellee under the agreed facts?

The first issue was answered by this court in the companion case of Griffin et al. v. Hale et al., 87 S.W.(2d) 497, to which reference is here made. In that case we held that T. M. Griffin, Jr., acquired a fee-simple title to the land under the will of T. M. Griffin, Sr. We think that is a proper construction of the will. However, a writ of error was granted upon our holding and the cause is now pending in the Supreme Court. If the issue controlled the disposition of this appeal, we would feel it proper to pass this case until the question shall have been settled by decision of the Supreme Court in the Hale Case. But upon examination of the record we have concluded, regardless of whether T. M. Griffin, Jr., acquired a fee-simple title or a life estate only in the land, that the judgment of the trial court in this case is sustained in the agreed facts under the issue of limitation, hence we would not be warranted in denying appellee disposition of this appeal in its regular order.

For the purpose of disposing of the issue of limitation in this case it will be assumed that T. M. Griffin, Jr., acquired a life estate only with remainder in fee to appellants, his sole heirs, under the will of T. M. Griffin, Sr.

The agreed statement of facts shows that on September 30, 1878, T. M. Griffin, Sr., a resident citizen of Hinds county, state of Mississippi, was seized and possessed of the 150 acres of land, and other lands in Texas, On that date T. M. Griffin, Sr., executed his last will and testament. A copy of the will is contained in the record and is the same as copied in the opinion in Griffin v. Hale, supra, to which we here refer. T. M. Griffin died immediately after executing the will. His wife, S. P. Griffin, died the following day. The will was duly probated in Hinds county, Miss., October 11, 1878. A certified copy of the will duly attested was filed and recorded in the deed records of Gregg county, Tex., April 19, 1904. T. M. Griffin, Jr., died October 31, 1903. The sole heirs of T. M. Griffin, Jr., are appellants, Maggie Griffin Hart, a daughter, born July 4, 1878; Annie L. Griffin Cosper, a daughter, born June 10, 1880; and J. P. Griffin, a son, born April 10, 1882.

Upon probate of the will in 1878, T. M. Griffin, Jr., took possession of the 150-acre tract of land together with other lands belonging to the estate of T. M. Griffin, Sr. December 2, 1880, T. M. Griffin, Jr., conveyed the 150-acre tract to W. S. Barnett. December 6, 1887, W. S. Barnett conveyed the tract to S. S. Barnett and H. W. Culver. December 22, 1892, S. S. Barnett and H. W. Culver conveyed same to George Utzman. January 6, 1908, George Utzman and wife conveyed same to R. H. Rowland. October 30, 1925, R. H. Rowland conveyed one-half undivided interest in same to his children, named in the deed, and later R. H. Rowland and his children conveyed same to J. S. and Frank Elder, under whom appellee, Roy A. Reynolds, holds an oil and gas lease conveying seven-eighths of the oil and gas in and under 20.91 acres of the 150-acre tract. Each of the above conveyances was by warranty deed, duly recorded in deed records of Gregg county, Tex.

The agreed facts further show that Roy A. Reynolds and his...