Houston Oil Co. of Texas v. Gore

• Decision Date: 21 June 1913
• Parties: HOUSTON OIL CO. OF TEXAS v. GORE.
• Court: Texas Court of Appeals

Page 924

159 S.W. 924

HOUSTON OIL CO. OF TEXAS v. GORE.

Court of Civil Appeals of Texas. Galveston.

June 21, 1913.

Rehearing Denied October 9, 1913.

Appeal from District Court, Hardin County; L. B. Hightower, Judge.

Trespass to try title by W. J. Gore against the Houston Oil Company of Texas. Judgment for plaintiff, and defendant appeals. Affirmed.

Hightower, Orgain & Butler, and W. H. Davidson, all of Beaumont, and H. O. Head, of Sherman, for appellant. Singleton & Nall, of Kountze, for appellee.

REESE, J.

This is an action in trespass to try title by W. J. Gore against the Houston Oil Company of Texas to recover 160 acres of land out of the Rafferty league in Hardin county. Plaintiff claimed title under the ten-year statute of limitation. Defendant pleaded not guilty and title under the statute of limitation of three years. Upon the trial without a jury, the court rendered judgment for plaintiff for 145 acres, to be taken as nearly as practicable in a square form to include his improvements, and to be an equitable partition between plaintiff and defendant. Commissioners were appointed to survey, set apart, and designate the 145 acres in accordance with the judgment aforesaid. The commissioners made partition accordingly, and made their report to the court, which, so far as the record shows, was not objected to by either party. The report was approved by the court, and final decree entered, adjudging to plaintiff the tract of 145 acres so marked out and designated by the commissioners. Defendant filed a motion for a new trial, which was overruled, whereupon it prosecutes this appeal.

The following conclusions of fact of the trial court are approved and adopted as our conclusions of fact:

"(1) I find from the evidence in this case that the plaintiff, W. J. Gore, with his family, resided on the land in controversy in this suit in September, 1884, and immediately commenced to make improvements and clear and put in cultivation a farm thereon. That from September, 1884, to February, 1895, the plaintiff held peaceable and adverse possession of said land, cultivating, using, and enjoying the same, and claiming 160 acres thereof.

"(2) That when plaintiff first settled on the place he put in a small farm contiguous to his house, lots, cribs, and other improvements, which was increased in size at intervals during the next ten years. That some years after the first farm was opened, plaintiff cleared and fenced a 15-acre field, something like one-half mile from his other improvements, and across the creek therefrom, on what was known as `Peach Tree Ridge.'

"(3) That in February, 1895, plaintiff made a verbal trade with one Mr. Ard, by the terms of which Ard took possession of said place, agreeing to hold possession thereof, and turn over to plaintiff one-third of the corn raised thereon each year until the value of such corn should amount to $200, and that after such payment should be made plaintiff would deed to Ard the place, consisting of 160 acres. That said Ard went into possession under that agreement in February, 1895, and held possession of said place continuously, making a crop thereon each year until the end of the year 1910.

"(4) That some years after 1895, and approximately during the year 1904, and after Ard had delivered to plaintiff the amount of corn agreed to be delivered under said verbal contract, Ard and plaintiff made another verbal agreement, by the terms of which plaintiff was to pay Ard $100, and Ard agreed that plaintiff should have all of his right and title in and to said premises except the field across the creek known as the `Peach Tree Ridge field.' It was further agreed between plaintiff and Ard that Ard should continue to hold possession of said premises, and have all the crops raised thereon, but was to keep up the fences and improvements and surrender possession to plaintiff whenever plaintiff made demand for same. That plaintiff then and there paid to Ard about $50, and during the summer or fall of 1910 paid the balance of the $100 agreed to be paid, and at the end of the year 1910 Ard surrendered possession to plaintiff, and plaintiff placed one Cunningham in possession as tenant, and that Cunningham lived on said place and made a crop thereon during the year 1911.

"(5) That while Ard was in possession he added about four acres to the Peach Tree Ridge field; but there was no testimony tending to show whether such improvement was made before or after he traded the place back to plaintiff Gore. That a crop was made on said place each year from 1885 to 1911, inclusive, by plaintiff and those holding in privity with him.

"(6) That on ____ day of ____, 1907, Ike Gore was living on the O. C. Nelson league, had a field of some 22 acres on the James Rafferty league near the south line thereof, and some three miles from the place claimed by plaintiff herein. That on the last above mentioned date the said Ike Gore signed an acknowledgment of tenancy to the Houston Oil Company of Texas for the whole Rafferty league, and said acknowledgment of tenancy was on the ____ day of ____ duly recorded in Hardin county, Tex. That said Ike Gore had been in possession of his said field on the Rafferty league, making a crop thereon each year for about 16 years before executing said contract with the Houston Oil Company of Texas, and that after executing said contract there was no change in the character of his possession. He continued to cultivate his 22-acre field, but did not exercise or attempt to exercise any control ov r any other part of said league.

"(7) I find in accordance with the agreement of counsel in this case that the legal title (except in so far as defeated by plaintiff's limitation) is now in defendant Houston Oil Company of Texas to the entire Rafferty league; but there is no testimony to show when they connected themselves or their title with the state or sovereignty."

By its first assignment of error appellant complains that the court erred in holding that plaintiff was entitled to 145 acres of the land sued for, and the judgment is contrary to the evidence in that the testimony shows that plaintiff sold the entire 160 acres to Neal Ard, who in turn sold back to him only the "House place" of about 20 or 25 acres. The second assignment of error presents substantially the same question. In support of these assignments, in its statement of the evidence, appellant sets out only the testimony of Neal Ard on this point, entirely ignoring the testimony of appellee Gore, which certainly the court was at liberty to accept, even if in conflict with that of Ard. This testimony is rather rambling, as is that of Ard; but the clear and unmistakable import of it is that appellee sold the entire 160 acres by verbal sale to Ard in 1895, who occupied it until 1904, and that in 1904 Ard sold it back to him, but appellee told him that he laid no claim to the little field on the "Peach Tree Ridge," and that Ard might keep that part. All of the 160 acres except that "inside field," as appellee called it, which embraced about 15 acres, Ard was to keep. This field was about half a mile from the main field and other improvements. Appellant seems to base this contention mainly upon the fact that Ard paid appellee $200 for the 160 acres, and when appellee bought it back he paid only $100, and from this he contends that he only got by this verbal sale one-half of the 160 acres. There is no support even in Ard's testimony for this contention that he only sold back to Gore one-half of the land, and this is clearly and positively denied by appellee. Under the rules it was incumbent upon appellant, under such an assignment as this, to set out at least the substance of all of the evidence on the point, and specially to set out in substance all of the evidence supporting the conclusion which is attacked as not supported by the evidence. There is no merit in the assignments, which are overruled.

Under the third and fourth assignments of error appellant presents the contention that under the verbal sale to Ard of the 160 acres Ard paid the purchase money, went into possession, and made valuable improvements, and that, in equity, this took the verbal sale out of the statute of frauds, and was a valid conveyance of the land, and that as to the verbal sale and conveyance by Ard to appellee Gore there were no improvements made...