Hoggett v. Wright, 14160

• Decision Date: 13 November 1963
• Docket Number: No. 14160,14160
• Citation: 374 S.W.2d 690
• Parties: Pierce A. HOGGETT et ux., Appellants, v. Howell WRIGHT et al., Appellees.
• Court: Texas Court of Appeals

Page 690

374 S.W.2d 690

Pierce A. HOGGETT et ux., Appellants, v. Howell WRIGHT et al., Appellees.

No. 14160.

Court of Civil Appeals of Texas, San Antonio.

Nov. 13, 1963.

Rehearing Denied Jan. 29, 1964.

Claud H. Gilmer, Rocksprings, Coke R. StevensonPierce Stevenson, Junction, for appellants.

M. C. Blackburn, Junction, for appellees

BARROW, Justice.

This suit was filed by appellants, Pierce A. Hoggett and wife, Marguerite Hoggett, to reform and correct the field notes in their deed of September 20, 1950, which purported to convey a forty-acre tract of land to Howell Wright. Appellants alleged that the description in the deed erroneously conveyed more than forty acres. In the alternative appellants sued in trespass to try title to recover 10.97 acres. Wright, on April 17, 1959, conveyed twenty acres out of the forty-acre tract to Joe H. Parker, and on March 23, 1960, Parker conveyed 17.6 acres of this land to William H. Moore. Appellants filed their suit on September 16, 1960, against Wright and his wife, Parker and Moore. After a trial before a jury, the trial court rendered judgment that appellants take nothing by their suit and they have perfected this appeal.

Mrs. Hoggett is the sister of Howell Wright. In 1927, their father died intestate and each of his seven children inherited an undivided 1/14th interest in the Wright Ranch, consisting of 2871 acres, located in Kimble County. Hoggett and wife subsequently acquired all interest in this ranch except that of Wright. On May 5, 1950, Hoggett and Wright entered into an agreement whereby Wright agreed to convey his undivided 1/14th interest in the ranch to Hoggett for the sum of $5,000.00 and the reconveyance by Hoggett to Wright of forty acres of land in the northeastern end of the ranch, located between the north bank of the Liano River and U. S. Highway, No. 377. Wright and Hoggett located the northwest corner of the tract to be reconveyed, at a designated place on the Highway, and agreed that Wright would have the land surveyed to determine the location of the west boundary line, so that the tract would contain forty acres. A surveyor was employed by Wright and the division fence erected in accordance with his survey, and his metes and bounds description was contained in the deed executed by appellants on September 20, 1950. On July 31, 1950. Wright conveyed his undivided 1/14th interest in the ranch to Hoggett et ux.

Appellants alleged that in July, 1960, a question arose with the State Highway Department over the ownership of a 3.09-acre gravel bed in the northeastern part of the Wright Ranch. At this time Hoggett had the tract conveyed by the September 20, 1950, deed surveyed, and this survey determined that there were 54.06 acres in the tract. Appellants do not assert claim to the 3.09-acre gravel bed, alleged to adjoin the forty-acre tract, but brought this suit to recover the alleged excess of 10.97 acres erroneously included in the description of the September, 1950 deed. Appellants alleged that they signed the erroneous deed because of the false representation by Wright that the description contained only forty acres. Appellees answered by a plea of not guilty and affirmatively pleaded that appellants' claim was barred by appellees' ten-years adverse possession. Art. 5510, Vernon's Ann.Civ.Stats. Appellees further pleaded that the suit for reformation was barred by the four-year statute of limitation. Art. 5529, Vernon's Ann.Civ.Stats. Moore was alleged to be an innocent purchaser for value.

It is opinion that the trial court erred in not granting appellants' motion for instructed verdict on their plea in trespass to try title to the 10.97 acres of land. The verdict of the jury is therefore not controlling and is substantially set out in footnote 1. The parties stipulated that Hoggett and wife were the common source of title. This stipulation made out a prima facie case for appellants on their plea in trespass to try title and the burden of proof shifted to appellees to show superior title under the common source, or to show that they hold under a superior title not connected with the common source, or that the true title is outstanding. Davis v. Gale, 160 Tex. 309, 330 S.W.2d 610; Yates v. Jones, Tex.Civ.App., 364 S.W.2d 872; Moran Corp. v. Brashear, Tex.Civ.App., 339 S.W.2d 557, writ refused.

It is seen that the deed of September 20, 1950, from appellants to Wright was not introduced in evidence as a muniment of title. Appellants expressly offered same for the limited purpose of showing the alleged misdescription and specifically stated that it was not being offered as a muniment of title. Appellees objected to this procedure, but their objection was overruled by the trial court with the observation that appellees could offer the deed for all purposes in connection with the presentation of their case. This was not done and therefore appellees failed to prove their title from the agreed common source. Davis v. Gale, supra.

Appellees concede in their brief that appellants' suit was filed prior to the running of ten years adverse possession of the land and that there is no basis in evidence to support the jury finding that Wright and his wife, prior to September 16, 1960, had ten years adverse possession of the land. The judgment for appellees therefore cannot be supported by the ten-year statute of limitation.

We sustain appellees' counter point that appellants' suit to reform and correct the deed is barred by the four-year statute of limitation. Davis v. Andrews, Tex.Civ.App., 361 S.W.2d 419; Hogan v. Price, Tex.Civ.App., 274 S.W.2d 745; Kahanek v. Kahanek, Tex.Civ.App., 192 S.W.2d 174; VII Baylor Law Review 241. The fouryear statute of limitation has no application, however, to appellants' alternative plea in trespass to try title to the 10.97-acre tract described in their supplemental petition. Tijerina v. Tijerina, Tex.Civ.App., 290 S.W.2d 277.

Appellees urge that the four-year statute of limitation should apply to the plea in trespass to try title and cite the cases of Cleveland State Bank v. Gardner, Tex.Com. of App., 286 S.W. 173; Tijerina v. Tijerina, Tex.Civ.App., 77 S.W.2d 706, and Hamilton v. Green, Tex.Civ.App., 166 S.W. 97. These cases are distinguishable from our case in that in each of those cases it was necessary to reform or correct a deed before the party asserting plea in trespass to try title would have legal or equitable title. in our case the parties stipulated that appellants had legal title before the execution of the deed of September 20, 1950.

Since appellees failed to prove ten years adverse possession and the four-year statute of limitation is inapplicable, the court erred in failing to grant appellants' motion for an instructed verdict on appellants' motion for an instructed verdict on appellants' plea in trespass to try title to the 10.97 acres of land. Davis v. Gale, supra; Sherman v. Whittenburg, Tex.Civ.App., 357 S.W.2d 172; Dixon v. Bennett, Tex.Civ.App., 260 S.W.2d 372; Fauth v. First Nat. Bank of Granbury, Tex.Civ.App., 214 S.W.2d 168; Dominguez v. Garcia, Tex.Com.App., 53 S.W.2d 459.

Moore's plea that he is an innocent purchaser for value must fail also, as he claims title through Wright. The deed from Hoggett to Wright was not introduced in evidence as a muniment of title and therefore Moore has shown no title from the common source.

The judgment of the trial court is reversed and here rendered that appellants, Pierce A. Hoggett and wife, Marguerite Hoggett, recover title to the 10.97 acres of land described in their first supplemental petition.

On Motion for Rehearing.

Appellees urge in their motion for rehearing, that they were not required to...