O'Hanlon v. Morrison

• Citation: 187 S.W. 692
• Decision Date: 24 May 1916
• Docket Number: (No. 1002.)
• Parties: O'HANLON et al. v. MORRISON.
• Court: Court of Appeals of Texas

187 S.W. 692

O'HANLON et al. v. MORRISON.

(No. 1002.)

Court of Civil Appeals of Texas. Amarillo.

May 24, 1916.

Appeal from District Court, Grayson County; W. M. Peck, Judge.

Action by F. L. O'Hanlon against W. A. Morrison and others. From a judgment for the named defendant, the plaintiff and other defendants appeal. Reversed and remanded.

J. W. Finley, of Sherman, for appellants. Cox & Cox, of Sherman, for appellee.

HUFF, C. J.

O'Hanlon instituted an action of trespass to try title against W. A. Morrison, J. H. Hollingsworth, Van Dyke Todd, and B. W. Gulick, to recover lot No. 3, in block No. 41 of College Park addition to Sherman. The petition sought a recovery against Gulick, the vendor of appellant, under a warranty for the purchase money paid should he fail to recover the land. W. A. Morrison answered among other things the three, five, and ten year statute of limitation, also alleging a purchase from Hollingsworth, who purchased at tax sale, and the failure of appellant to redeem in two years. Hollingsworth, Todd, and Gulick did not answer. The case was submitted to a jury, who found for Morrison upon his plea of three and ten year limitation, and in favor of O'Hanlon against Gulick, for $125, and judgment was accordingly so rendered.

The appellant showed title in himself and the trial court so instructed the jury, unless defeated by the statutes of limitation pleaded by Morrison. Morrison claims under a tax deed sold for taxes, due the city, by the collector of that city. The deed itself is not in the record, but apparently the witnesses who testified to it had it before them, and referred to it as being dated March 1, 1904. It appears J. H. Hollingsworth purchased at the tax sale and did so for Morrison. The tax deed was made to Hollingsworth, and he and Morrison testified that he conveyed the lot by deed to Morrison. This deed appears to have been lost, and thereafter a substitution deed was executed, which was placed of record some time in 1914. There was nothing showing assessment or levy of taxes. No judgment was offered foreclosing the tax lien; in fact, nothing was shown except the tax deed, if indeed that can be said to have been in evidence. The suit for the lot was filed August 27, 1914, and the trial was had February 2, 1915. The evidence shows the lot in question was vacant, without any improvements on it of any kind until a little less, as stated by the witness, than three years before the trial; or something like two years before the suit was filed, when Morrison fenced the lot. Morrison testified:

"In March, 1904, I was tax collector of Grayson county. At that time I had Mr. Hollingsworth to do something in reference to lot 3, block 41, College Park addition to the city of Sherman. I had him to buy it at a tax sale. My recollection is I had to leave town on the day it was to be sold; is why I had him to buy it. I bought it because I needed it as a kind of store place for things that I would have around that I couldn't keep on my other lot. I had been using the lot before that. It must have been four or five years that I had been using it. In fact, I was using it all the time since I moved over there. I moved over there in the winter of 1897, I think it was, 1896 or 1897, I don't remember how long it was after I moved there before I began to use this lot. It wasn't but a short time. Probably the next spring. I used it for various purposes. I have used it for pasturing; that is, lariating on it and pasturing. I mean I tied my cow and horse on it. I used it also for standing my wagons on, and have had some mowers on it, or one mower I remember; piled lumber on it sometimes, right often I have used it nearly all the time since I moved there, quite all the time for various purposes; not for any one thing all the time. I will say that I have used it about all the time, for the purposes which I have stated to the jury, stored lumber, mowing machines, farming implements and wagons, buggies; sometimes put some wire on it a time or two, wire that I wasn't using. I started using that lot in that manner, I think, within a year after I moved there. I think a year would cover it. Don't think it was that long. That would be since about 1897 or 1898. I have continued to use the lot up to the present time in the manner in which I started to use it. No one has interfered with my peaceable use of the lot. No one has done anything to prevent me from using the lot, not until this suit was brought. I don't remember the date when the suit was brought. I fenced the lot, and put up some feed troughs on it. I think that was three years ago this coming spring. When I first started using this lot there was a house on lot 4. This lot 3 was a vacant lot; nothing on it at all. There was some little brush on it; this black locust, I believe. I frequently made inquiry along about that time about who owned the lot. I never could find out who owned it. I was using it before I started to find out who owned it. I wanted the lot; needed it; and couldn't find out who owned it, and that caused me to take the course I did toward using this lot. I went to the records down stairs in the county clerk's office to try to find out who owned it. I didn't find out much of anything there. No one ever approached me at any time that I remember of with reference to signing a lease on the lot. Mr. O'Hanlon has spoken to me a time or two about the ownership of the lot in the last 12 months. No one spoke to me about it before the last 12 months that I remember of. Mr. Finley has spoken to me once about it, I believe, but not before 12 months ago. It might have been Mr. O'Hanlon spoke to me about it longer ago than that, but I don't think it has been longer than 12 months. Mr. Hollingsworth executed me a warranty deed to the lot. The first deed was executed some time during the summer of 1904. I haven't got that first deed that was executed. I do not know where it is. It got misplaced. I am positive that that deed was executed and delivered to me somewhere along about 1904, during that summer. It was after March 6th. That first deed was never placed of record. I don't know as I ever made a diligent search for the first deed until about a year ago or a little longer. I had a locker down in the county clerk's office that I kept some of my papers in, and I kept some of them out at the house. During the time I was collector I kept them down here in the office. I know from memory that there was a former deed executed by Mr. Hollingsworth to me to this lot 3, block 41. I had Mr. Hollingsworth to buy this in for me. Some time after that time Mrs. Carr put up some kind of a claim to the lot, and went to Mr. Hollingsworth about it, and he told me about it, and then I had him give me a deed. The agreement between Mr. Hollingsworth and me at the time he bought this in was that he was to execute a deed to me at any time that I would ask him for it. I paid taxes on this lot. I paid state and county and city taxes. (Witness is handed some papers.) These are tax receipts.

"Mr. Cox: We offer these receipts in evidence.

"The Witness: Some of the receipts show that I paid taxes on lot 4, block 41. That was caused by an error in rendition. I found out two or three years ago that there was an error in the rendition. As soon as I found out about it, I changed it from `4' to `3.' I didn't change the receipts. I changed the rendition. I first laid claim to the lot in 1904. I had been using it prior to that time. I used it for the purpose of rather a store place for things that I wasn't using. That is what I did with reference to claiming it. I asserted my claim of ownership by storing things on the lot. I took actual possession of it. I stored lumber on it and wire, and lariated my horse and cow on it; put some machinery on it; put my wagon and buggies on it. I stated that I used it in that way. I used it that way to the exclusion of others. I had possession of it. I first asserted that possession about 1897 or 1898. I first started to using and occupying the place about that time, about 1897 or 1898; somewhere along there. No one else used or occupied that lot from then on. During that time no other person ever occupied the lot."

Cross-examination by Mr. Finley:

"I made inquiries of several about the ownership of that lot. I don't know but what I asked you (Mr. Finley) about it one time down in the county courtroom or in the county clerk's office. And I asked Mr. Tuck. I don't remember that you turned to the books and showed me whose name it stood in. I have asked Mr. Tuck. I have talked about it frequently. I don't know who that first deed was acknowledged before, only just from the party that did my notary work usually. I did not go to the notaries and have them examine the books and see if there had been any acknowledgment made. I didn't make any such effort to find out whether there had been a deed acknowledged or not. I don't know as a matter of fact that there never was one executed until this last one. I know that there was. I got up this other instrument in 1914 because I couldn't find my other deed. I don't think I knew the date of the other one. I fixed the date of this instrument from recollection and memory. I didn't go to the notaries that did work to find out whether or not there was a record. I don't know that the law requires notaries to keep a record of those acknowledgments, public documents. It is not a fact that the reason I didn't go to them was because there never was one executed back there. I think it was three years ago this coming spring that I fenced this lot. I think it is a little bit short of three years now. Prior to that time I lariated my stock on the lot. I lariated calves on it and milch cows and a horse and colt. I did that during the spring, summer, and fall. I didn't do it through the winter. I may have put something out there in the late fall for exercise. I don't know. I don't mean to say that I didn't or...