Harvey v. Humphreys

• Decision Date: 24 February 1944
• Docket Number: No. 11584.,11584.
• Parties: HARVEY et al. v. HUMPHREYS et al.
• Court: Texas Court of Appeals

178 S.W.2d 733

HARVEY et al. v. HUMPHREYS et al.

No. 11584.

Court of Civil Appeals of Texas. Galveston.

February 24, 1944.

Rehearing Denied March 16, 1944.

Appeal from District Court, Waller County; W. B. Browder, Judge.

Suit in trespass to try title by A. E. Humphreys and others against deLyon Harvey and others in which certain defendants filed a cross-action. From a judgment for plaintiffs, defendants appeal.

Affirmed.

A. D. Dyess, of Houston, for appellants.

Vinson, Elkins, Weems & Francis and C. M. Hightower, all of Houston, for appellees.

MONTEITH, Chief Justice.

This suit in trespass to try title was brought by appellees, A. E. Humphreys and wife, Gertrude Humphreys, and George Zollman, against a large number of persons, their heirs, unknown heirs and legal representatives, including appellants herein, for the purpose of "clearing up" the title to and for possession of certain land out of the J. G. W. Pierson 3/4 League Survey, located partly in Grimes and partly in Waller Counties, Texas. All parties defendant in the suit were cited by publication and all defendants so cited either disclaimed or failed to appear and answer in person or by attorneys of their own selection except appellants who appeared by answer and cross-action, disclaiming title to all the land sued for by appellees except Lots 10, 13 and 18 of the W. R. Fitch Subdivision of the said Pierson Survey. As to said lots appellants filed pleas of not guilty and general denial, and by special plea sought to have a judgment rendered in the district court of Waller County on April 3, 1917, in case of George L. Zollman v. Unknown Heirs of J. H. Pierson et al., set aside as to them. They later abandoned their claim to said Lot No. 10.

Appellees alleged title as the record owners of the land in controversy. In addition to their pleading in trespass to try title they pled title by reason of various statues of limitations and, in answer to appellants' cross-action, they pled laches, stale demand, and that they were innocent purchasers of the lots in controversy for value without notice of the interest therein claimed by appellants.

In a trial before the court without a jury, judgment was rendered in favor of appellees and against appellants as to said Lots 10, 13 and 18, and in favor of appellees and against all other defendants named in the suit who had not been dismissed therefrom and had not disclaimed for the title to and possession of the land sued for.

At the request of appellants the trial court prepared and caused to be filed his findings of fact and conclusions of law.

The record shows that M. A. Harvey and Josephine C. deLyon were married on August 16, 1876. M. A. Harvey died in 1882, leaving surviving him his wife and three children. In 1885 Josephine Harvey married William J. Poole, who died in 1915 leaving surviving him his wife, Josephine Harvey Poole, and two children. Josephine Harvey Poole died in 1927. Appellants herein are the surviving children and heirs of M. A. Harvey and Josephine Harvey and of Josephine Harvey Poole by her marriage with William J. Poole.

Both appellants and appellees claim title to the land in controversy under Bryan Real Estate & Building Association, which association acquired certain land out of the J. G. W. Pierson Survey in February, 1875, and caused it to be subdivided into 18 lots or parcels of land and a plat thereof to be made and recorded in the deed records of Grimes County, Texas.

By deed dated October 5, 1875, the Bryan Real Estate & Building Association conveyed said Lots Nos. 10, 13 and 18 to C. B. Beck. On September 15, 1877, C. B. Beck, through the sheriff of Waller County and under a judgment of the county court of Brazos County and a sheriff's sale thereunder, conveyed said Lots 10, 13 and 18 to M. A. Harvey.

There is no conveyance in the record out of M. A. Harvey. However, the trial court found as a fact that "M. A. Harvey and Josephine C. Harvey Poole conveyed all right, title and interest in Lots 10, 13 and 18 * * * to one of plaintiffs' predecessors in title."

The balance of the land in the Pierson Survey owned by the Bryan Real Estate & Building Association passed by mesne conveyance into J. S. Fowlkes, who by deed dated January 25, 1892, conveyed parts of the said Pierson Survey by a metes and bounds description which included said Lots 13 and 18 to L. L. Alexander, who conveyed said land to Laura and Carrie Fetzer. By deed dated February 4, 1907, Laura and Carrie Fetzer conveyed 706 acres of land, referred to as Lots 10, 18 and 13 out of the Pierson Survey, and other land, to W. F. Brockman, and by deed dated September 1, 1906. Laura and Carrie Fetzer and W. F. Brockman conveyed the timber on 2000 acres of land, more or less, out of the Pierson Survey by field notes, which include said Lots 13 and 18, with other property, to Miller-Vidor Lumber Company. Graham-Todd Lumber Company, assignee of the Miller-Vidor Lumber Company, erected a mill on land adjoining the Pierson Survey and extended a tram road into the Pierson Survey and it, and its assignees, cut the timber at various times from said survey, including said Lots 13 and 18. Said Lot 18 lies south of and adjoins said Lot 13. The title to said land passed by a regular chain of mesne conveyances into George L. Zollman.

On January 22, 1917, George L. Zollman filed suit in the district court of Waller County in cause No. 2753 against the Unknown Heirs of J. H. Pierson and others, including M. A. Harvey and the heirs and legal representatives of M. A. Harvey, deceased, and on April 3, 1917, judgment was rendered in said cause in his favor for the title and possession of the land sued for, including said Lots 13 and 18, against all defendants sued, including M. A. Harvey and his legal heirs and representatives. No appeal was prosecuted from this judgment. It was recorded on June 6, 1917, in the Deed Records of Waller County, Texas.

George L. Zollman later conveyed the land in controversy to Naomi Rich in trust for the use and benefit of appellees, A. E. Humphreys and Gertrude Humphreys, subject to a 1/16 mineral interest reserved to himself. The record shows and the trial court found as a fact that A. E. Humphreys paid a valuable consideration for the property in reliance upon the validity of the judgment in the case of Zollman v. Unknown Heirs of J. H. Pierson et al., and the recitals contained therein, and without notice, actual or constructive, of any claim of title on the part of the heirs of M. A. Harvey and Josephine C. Harvey Poole, deceased.

This action was brought on January 31, 1942, approximately 25 years after the entry of judgment in the case of Zollman v. Unknown Heirs of J. G. W. Pierson et al.

Under their first point, appellants contend that the evidence in the record was insufficient to support the trial court's findings of fact that M. A. Harvey and Josephine C. Harvey Poole conveyed said Lots 13 and 18 to one of the plaintiffs' predecessors in title.

It has been uniformly held in this State that presumption of a title is generally one of fact and therefore subject to rebuttal (2 Tex.Jur. 26), and that while the presumption may be established by circumstantial evidence alone in the absence of possession (Simmons v. Hewitt, Tex.Civ.App., 87 S.W. 188, writ refused), it is essential that the adverse claim of title to the land be made in some tangible form calculated to bring notice to those who are adversely affected thereby so as to create a presumption of acquiescence in such claim by the adverse parties. Ordinarily where a party asserts a presumed grant, he must show possession, adverse, exclusive, and a holding to well-defined metes and bounds. Duke v. Houston Oil Co. of Texas, Tex.Civ.App., 128 S.W.2d 480; Fowler v. Texas Exploration Co., Tex.Civ.App., 290 S.W. 818, writ refused; Masterson v. Harris County Houston Ship Channel Nav. Dist., Tex.Com.App., 15 S. W.2d 1011, 18 S.W.2d 588, 67 A.L.R. 1324; Wixom v. Bowers, Tex.Civ.App., 152 S.W. 2d 896, writ refused.

In announcing the rule that the presence of three legal elements are necessary to establish the presumption that an apparent owner has parted with his title, our Supreme Court in the case of Magee v. Paul, 110 Tex. 470, 221 S.W. 254, 256, has said:

"Since it is not consistent with human experience for one really owning property of value to assert no claim thereto, but to acquiesce for a long period of time in an unfounded, hostile claim, the rule is sound which permits the inference that an apparent owner has parted with his title from evidence, first, of a long-asserted and open claim, adverse to that of the apparent owner; second, of a non-claim by the apparent owner; and third, in the acquiescense by the apparent owner in the adverse claim."

In the instant case the trial court based his finding of fact that M. A. Harvey and Josephine C. Harvey Poole had conveyed all right, title and interest in said Lots 10, 13 and 18 to one of plaintiffs' predecessors in title on the following facts and circumstances which are reflected by the record: a non-claim on the part of appellants and their ancestors from the date of the deed to M. A. Harvey in 1877 to the time of the filing of this suit in 1942; the assertion of a title thereto by appellees and their predecessors in title since 1892; the payment of taxes by appellees on portions of the Pierson Survey, claimed by appellees to include the lots in controversy, from 1917 to 1942; the building of a corral and house on said Lot 13, and the cutting and removing of timber from both Lots 13 and 18, and the fact that said two lots were not inventoried as a part of the estate of M. A. Harvey, Josephine C. Harvey Poole, or as a part of the estate of the Harvey heirs when Mrs. Poole qualified as their guardian in 1892, and the fact that, in the year 1877, the year that M. A. Harvey acquired title to said Lots 10, 13 and 18 by sheriff's deed, the same sheriff who executed the deed to M. A....