Hicks v. Southwestern Settlement & Develop. Corp.

• Citation: 188 S.W.2d 915
• Decision Date: 24 May 1945
• Docket Number: No. 4286.,4286.
• Parties: HICKS et al. v. SOUTHWESTERN SETTLEMENT & DEVELOPMENT CORPORATION et al.
• Court: Court of Appeals of Texas

188 S.W.2d 915

HICKS et al. v. SOUTHWESTERN SETTLEMENT & DEVELOPMENT CORPORATION et al.

No. 4286.

Court of Civil Appeals of Texas. Beaumont.

May 24, 1945.

Rehearing Denied July 11, 1945.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Tyler County; Clyde E. Smith, Judge.

Action by Bertha Neyland Hicks and others against Southwestern Settlement & Development Corporation and others in trespass to try title and for damages. From an order of dismissal, upon sustaining pleas in abatement, plaintiffs appeal.

Judgment reversed and rendered.

A. M. Huffman, of Beaumont, and Grover C. Lowe, of Woodville, for appellants.

Blades, Chiles, Moore & Kennerly, of Houston, and J. E. Wheat, of Woodville, for appellees.

WALKER, Justice.

This is an action of trespass to try title and for damages, brought by Mrs. Bertha Neyland Hicks and 103 other persons as plaintiffs against the Southwestern Settlement & Development Corporation and others as defendants. Plaintiffs are appellants here. They allege fee title to the Adolpho Sterne league, abstract No. 32, in Tyler County, Texas; and after making the formal allegations of trespass to try title, plead the three, five, ten and twenty-five year statutes of limitation. They allege a disseizin as of and since January 1, 1942, to their damage in the sum of $50,000, and also allege the wrongful production from the land and appropriation by defendants of oil and gas to the value of $760,000. Respecting said oil and gas, plaintiffs "ask that the court require the defendants to file herein a statement, under oath, showing the amount of oil and gas" so produced, removed, and sold by them or appropriated to their own use. Plaintiffs pray judgment for title to and possession of the land, the value of said oil and gas and for general relief.

The defendants filed separate but apparently similar answers, excepting the Kirby Lumber Corporation, which disclaimed. The answer of Southwestern Settlement & Development Corporation, on the stipulation of the parties, is to be taken as the answer of all defendants. This instrument set up in due order a plea in abatement, various special exceptions, a general denial and a plea of not guilty, and various special pleas alleging the three, five, ten and twenty-five year statutes of limitations. Defendants are appellees here. They, as well as appellants, are before us on amended pleadings.

By order entered December 4, 1943, the trial court sustained the pleas in abatement, and appellees' special exception No. 1; and upon appellants' refusal to amend dismissed the suit by order of November 20, 1944. This appeal is taken from the order of dismissal.

It is unnecessary at this point to discuss the special exceptions. The gist of the plea in abatement is that there are tenants in common with appellants who are not, but of right ought to be joined in this suit. Appellees allege that appellants claim title as heirs of Tom Collier; that Tom Collier died intestate in 1900 and that numerous other heirs of Tom Collier, who are named, are not parties to this suit. They also allege that the heirs who have not been joined constitute necessary parties and say that they "are jointly interested in the alleged claim of title asserted by the plaintiffs named in said petition and should be made parties to this cause in order that (defendants) be not vexed and harassed by numerous suits and claims arising out of the same claim of title to the same land."

The briefs reflect the facts. Appellants say: "For the purpose of the hearing on the pleas in abatement, it was agreed that plaintiffs were suing for the land as heirs of Thomas Collier, Deceased, except Mrs. Hicks, who claimed to have inherited her interest from her mother who was the surviving wife of Thomas Collier, also deceased; that Thomas Collier died about the year 1900; and that the 574 persons named in the pleas in abatement were also heirs of Thomas Collier." (Pages 3, 4, Appellants' Brief.) This is the substance of appellees' case on the facts. The qualification respecting Mrs. Hicks is of no significance. The parties nowhere make any distinction between ownership of damages and of land, and they evidently regard the claims for damages as incidents of the title asserted by appellants.

It accordingly appears that appellants profess to have title in fee simple to undivided interests in the land for which they sue, that appellants likewise profess to own in their own right and as an incident of their title to the land, undivided interests in the damages alleged, which are thus the equivalent of their interests in the land, that appellants have numerous tenants in common in their claim of fee title to the land, and in the claims for damages, who are not parties to this action, and the question is whether appellees are entitled on the peculiar facts of the record before us to require that these omitted tenants in common be made parties to this action. It is our conclusion that appellees are not so entitled, and that the trial court erred in sustaining the pleas in abatement and in dismissing the suit.

(A) It was the established rule of decision in this state prior to the adoption of the present Rules of Civil Procedure that, in an action of trespass to try title, a tenant in common could recover the entire tract from one who had no title. 11 Tex. Jur. 500 (Sec. 57); 41 Tex.Jur. 472 (Sec. 17); Padgett v. Guilmartin, 106 Tex. 551, 172 S.W. 1101. Expressions of this rule seem to go back at least as far as Croft v. Rains, 10 Tex. 520. The rule was not changed by the adoption of the Revised Statutes of 1879. Moore v. Stewart, Tex. Sup., 7 S.W. 771. Specifically, the provision made in those statutes, Art. 4786(3), R.S.1879; now Rule 783(c), that a plaintiff allege the interest claimed by him and the character thereof, and if an undivided interest that he also allege the amount thereof, did not affect this rule. Sowers v. Peterson, 59 Tex. 216; Pilcher v. Kirk, 60 Tex. 162; Telfener v. Dillard, 70 Tex. 139, 7 S.W. 847.

The tenant in common had this right only against one without title. Not only was he required to show title to an interest in the land; the burden rested upon him to show that the adverse party had no title, Davidson v. Wallingford, 88 Tex. 619, 32 S.W. 1030; Steddum v. Kirby Lumber Co., 110 Tex. 513, 221 S.W. 920; Land v. Banks, Tex.Com.App., 254 S.W. 786; although as stated in Davidson v. Wallingford, supra [88 Tex. 619, 32 S.W. 1033]: "Ordinarily, when one tenant in common brings a suit to recover land, in proving his own title, he proves that of his co-tenant, and thereby shows that the defendant is not entitled to the possession." It was, of course, of no significance that the adverse party asserted a title of his own whether wholly unconnected with that of the plaintiff tenant in common, as in Moore v. Stewart, supra, 7 S.W. 771; or whether the parties claimed under a common source, as in Bounds v. Little, 75 Tex. 316, 12 S.W. 1109, and Humphreys v. Green, Tex.Civ.App., 271 S.W. 116; and statements to this effect appear. Lone Star Gas Co. v. Meyer, Tex.Civ.App., 296 S.W. 1110.

Accordingly, in action of trespass to try title wherein plaintiff only prayed for judgment for the land, and under the allegations in the petition the defendant had no title, as here, it was held that plaintiff's omitted tenant in common was not a necessary party, Walker v. Read, 59 Tex. 187; Bounds v. Little, 75 Tex. 316, 12 S. W. 1109; Cook v. Spivey, Tex.Civ.App., 174 S.W.2d 634; and likewise, that a plea in abatement, for lack of necessary parties, setting up the omission of plaintiff's tenant in common, should be overruled. Carley v. Parton, 75 Tex. 98, 12 S.W. 950; Mitchell v. Mitchell, 80 Tex. 101, 15 S.W. 705. The interest of the omitted tenant in common was not an outstanding title. Peveto v. Richardson, Tex.Civ.App., 38 S.W.2d 133; Plowman v. Miller, Tex.Civ. App., 27 S.W.2d 612; Fowler v. Hardee, Tex.Civ.App., 16 S.W.2d 154; Hintze v. Krabbenschmidt, Tex.Civ.App., 44 S.W. 38; Brown v. Wilson, Tex.Civ.App., 29 S.W. 530; Ford v. Ballard, 1 Tex.Civ.App. 376, 21 S.W. 146. An action in trespass to try title did not abate on the death of one of plaintiffs, tenants in common, Watrous' Heirs v. McGrew, 16 Tex. 506; or where one of such plaintiffs discontinued, Biencourt v. Parker, 27 Tex. 558; Presley v. Holmes, 33 Tex. 476. The brief of the arguments reported in Pilcher v. Kirk, 55 Tex. 208, shows that the Supreme Court on at least this occasion had before it a contention that the rule authorizing a tenant in common to maintain alone an action of trespass to try title subjected the defendant to a multiplicity of suits, and the judgment rendered shows that that contention was denied.

It is apparent that this rule of decision evidenced the substantive law defining the incidents of tenancy in common. A tenant in common could maintain alone an action of trespass to try title against one without title because tenants in common are separately seized and there is no privity of estate between them. May v. Slade, 24 Tex. 205; Taylor v. Catalon, 140 Tex. 38, 166 S.W.2d 102. He could recover the entire tract because "each tenant in common is entitled to the enjoyment of the entire premises undisturbed by anyone except his cotenants, and therefore it is proper that he should have the right to dispossess a stranger to the title." Boon v. Knox, 80 Tex. 642, 16 S.W. 448, 26 Am.St.Rep. 767; Davidson v. Wallingford, 88 Tex. 619, 32 S.W. 1030; Cook v. Spivey, Tex.Civ.App., 174 S.W.2d 634. Or to use a different turn of phrase, "the reason for a tenant in common being so entitled is that he owns his particular interest in the whole land; and since he is entitled to the possession against everybody except his co-tenants, he is necessarily entitled to the exclusive possession against a trespasser." Steddum v. Kirby Lumber Co., 110 Tex. 513, 221 S.W. 920, 924.

For this reason, if for no other, we conclude that this rule of...