House v. Williams

• Decision Date: 28 April 1897
• Parties: HOUSE et al. v. WILLIAMS et al.
• Court: Texas Court of Appeals

40 S.W. 414

HOUSE et al. v. WILLIAMS et al.

Court of Civil Appeals of Texas.

April 28, 1897.

Appeal from district court, Milam county; W. G. Taliaferro, Judge.

Action by Hattie House and husband against Isaac Williams and another. From a judgment in favor of defendants, plaintiffs appeal. Reversed and remanded.

W. A. Morrison, for appellants. W. T. Hefley and Spencer Ford, for appellees.

KEY, J.

Hattie House and her husband brought this suit against Isaac Williams and Andrew J. Bailey in trespass to try title and to partition certain real estate. The plaintiffs alleged and proved that Hattie House and Isaac Williams were married to each other in 1878; that Isaac Williams purchased the property in controversy after said marriage; and that in April, 1883, at the suit of Williams, a judgment of divorce was rendered dissolving the bonds of matrimony between them, but not disposing of the property rights of the parties. The defendants in this suit each pleaded a general denial, not guilty, and the 10-years statute of limitation; and the defendant Williams pleaded that the land in question was paid for with money owned by him at the time of his marriage to the plaintiff, and was his separate property. The court instructed the jury, if they believed from the evidence that the property sued for was acquired during the marriage of the plaintiff and the defendant Williams, to find for the plaintiff a one-half interest therein, unless they believed from the testimony that the defendant Williams purchased the property with money owned by him at the time of his marriage with the plaintiff, or that the plaintiff was barred by the statute of limitation. The charge then instructs the jury as to the plaintiff's right to recover rents if she should recover half the land, and to find for the defendant if they believed that the property sued for was paid for with money owned by Williams at the time he and the plaintiff were married. Proceeding with the subject of limitation, the charge reads as follows: "The possession of one joint owner or tenant in common would be the possession of the other, and the statutes of limitation would not begin to run unless such possession was open, notorious, exclusive and adverse. Mere possession in such case would not be sufficient notice to constitute an adverse holding, but direct notice of such adverse possession need not be brought home to the party, but the jury may presume such notice if they believe the facts and circumstances of the case may warrant it. If you believe from the evidence that the defendant Ike Williams, in person or by tenant, has held actual, open, notorious, exclusive, and adverse possession of the property sued for, as above explained, for ten years or more before the institution of this suit, you will find for the defendants." This charge is defective, in that it fails to tell the jury that, if Williams did not pay for the property with his separate means, the plaintiff, his former wife, was a joint owner or tenant in common with him; and it is defective and misleading in that it omits to state, as part of the law on the subject, that possession of a tenant in common would not be adverse possession as against his co-tenant, unless he repudiated the right of such co-tenant, and the latter had notice of such repudiation or adverse holding. In order to put the statute of limitation in operation,...