Hopper v. Hargrove

• Decision Date: 03 July 1941
• Docket Number: No. 5808.,5808.
• Citation: 154 S.W.2d 978
• Parties: HOPPER et al. v. HARGROVE et al.
• Court: Texas Court of Appeals

154 S.W.2d 978

HOPPER et al. v. HARGROVE et al.

No. 5808.

Court of Civil Appeals of Texas. Texarkana.

July 3, 1941.

Rehearing Denied September 4, 1941.

Appeal from District Court, Fannin County; Geo. P. Blackburn, Judge.

Action by Mrs. Maude Hopper and others against L. K. Hargrove and another to recover title and possession of four tracts of land and cancellation of a deed. From the judgment, the plaintiffs appeal.

Affirmed.

Hardy Moore, of Paris, for appellants.

Cunningham, Lipscomb & Cole, of Bonham, for appellees.

HALL, Justice.

On April 1, 1931, appellant Mrs. Maude Hopper instituted this suit without the joinder of her husband, R. L. Hopper, against appellees L. K. Hargrove and J. R. Rainey to recover title and possession of four tracts of land located in Fannin County, Texas, and for cancellation of a deed purporting to convey said four tracts of land to the Fannin County State Bank. The 1st count in said petition is a statutory action of trespass to try title. The second count seeks cancellation of the deed from Maude Hopper and husband, R. L. Hopper, to the Fannin County State Bank for various reasons not necessary here to state. On June 10, 1935, appellant Maude Hopper filed her first amended original petition in which she impleaded her husband as defendant, and in which she sought in the first count thereof a recovery of title and possession of the same four tracts of land described in her original petition. The second count in this amendment also sought the cancellation of the deed from Mrs. Hopper and her husband, R. L. Hopper, to the Fannin County State Bank. On June 16, 1939, appellant Maude Hopper filed her second amended original petition in which she joined as defendants her children, Lillian Jones and husband, Marvin Jones, Elbert Hopper, and Ray Hopper, heirs at law of R. L. Hopper then deceased. In this second amendment the other allegations and relief sought were substantially the same as in the original and the first amended petition. On November 24, 1939, appellant Mrs. Maude Hopper filed her third amended original petition in which she included for the first time the tract of land described as the 120 acres of the Free L. Hart Survey and made claim thereto with a 68.4-acre tract and a 29.1-acre tract, aggregating 197½ acres, as constituting a part of her homestead. In the first count of the third amended petition Mrs. Hopper sought recovery of title and possession of three tracts of land instead of four, and in the second count of said amended petition she sought a cancellation of the deed from herself and husband, R. L. Hopper, to the Fannin County State Bank upon practically the same grounds as set up in her first three petitions. On the same date Mrs. Hopper, as temporary administratrix of the estate of R. L. Hopper, adopted the third amended original petition filed by her individually, and her children named as defendants in the second amended original petition also adopted her third amended original petition and they, with her, constitute the appellants here. Mrs. Hopper in her original petition, and in her first and second amendments, referred to hereafter as the first three petitions, alleged that the four tracts of land described therein, the title to which she sought to recover, constituted the homestead of her and her husband, R. L. Hopper. In the first three petitions, after describing the four tracts of land, she made this allegation: "All four tracts containing 200 acres; and being the same land described in a Designation of Homestead made by R. L. Hopper and plaintiff (appellant Maude Hopper) on October 31, 1922, and recorded in Book 177, page 441, of the Deed Records of Fannin County, Texas."

Appellees answer with a general denial, plea of not guilty, and asserted title to the lands under the three, five and ten years' statutes of limitation. Appellees alleged that "R. L. Hopper and his wife, Maude Hopper, plaintiff herein, maintained, used and occupied and declared to be their home lands and premises other than the lands and premises described in the plaintiff's Third Amended Original Petition, and that they had and maintained other lands and premises as a homestead, and that the lands and premises described in Plaintiff's Third Amended Original Petition is not and was not at the time of the execution of the deed the homestead of the plaintiff or her deceased husband. That the plaintiff and her husband, R. L. Hopper, lived in the community or town of Elwood and conducted a substantial and extensive business and had and maintained their home therein. That the plaintiff owned, claims and uses property, both rural and urban, which was used, owned and possessed by the plaintiff and her husband prior to the execution of said deed and they still own the same." After the testimony was concluded the court peremptorily instructed the jury to return a verdict for appellees. Judgment was entered for them accordingly and appellants prosecute this appeal.

Appellants' first proposition is: "The filing of this suit in 1931 tolled the statute of limitation, because throughout its course the object has been to recover the homestead of the appellant Mrs. Maude Hopper and her deceased husband, R. L. Hopper; and the fact that more than ten years elapsed between the appellees' entry and the filing of the amended petition correctly describing the entire homestead does not render the suit subject to the bar of the ten year statute of limitation, for the reason that no new cause of action was asserted, particularly since part of the homestead was correctly described in the original petition filed in 1931, and each amendment thereto."

The title to the 120-acre tract in the Free L. Hart Survey alone is in controversy here. This is the first tract described in appellants' third amended original petition. By stipulation in the court below, no question of cancellation is involved here. There is no contention that this tract of land was included in this suit until the filing of appellants' third amended original petition. In appellants' brief this statement is made: "On November 24, 1939, at which time the defendants L. K. Hargrove and J. R. Rainey had for more than ten years consecutively been in the exclusive possession of the property sought to be recovered, Mrs. Hopper filed her third amended original petition, in two counts, the first of which was in the form of the statutory action of trespass to try title, the second consisting of a suit to cancel the same deed sought to be cancelled by all her previous pleadings." It is appellants' contention as further shown by their brief "that notwithstanding the misdescription, the filing of the suit in 1931 tolled the statute of limitation, because Mrs. Hopper has throughout sought to recover whatever property was her homestead, and the evidence conclusively establishes that the 109 (120) acre tract in the Free L. Hart...