Houston Oil Co. v. Pullen

• Decision Date: 15 November 1923
• Docket Number: (No. 1004.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 256 S.W. 321
• Parties: HOUSTON OIL CO. OF TEXAS v. PULLEN et al.
• Court: Texas Court of Appeals

256 S.W. 321

HOUSTON OIL CO. OF TEXAS v. PULLEN et al.

(No. 1004.)^*

Court of Civil Appeals of Texas. Beaumont.

November 15, 1923.

Rehearing Denied November 28, 1923.

Appeal from District Court, Polk County; J. L. Manry, Judge.

Action by the Houston Oil Company of Texas against Thomas J. Pullen and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Kennerly, Lee & Hill, of Houston, for appellant.

Vinson, Elkins, Wood & Pollard, of Houston, and James E. Hill, of Livingston, for appellees.

WALKER, J.

On the verdict of a jury submitting the issues of 10 years' limitation, the appellees in this appeal recovered from appellant about 60 acres of the Gavino Aranjo survey in Polk county, Tex. It is conceded that appellant owned the record title. Appellees held under the possession of one R. V. Martin and their title rests entirely on the character of claim asserted by R. V. Martin. His possession is admitted.

Appellant challenges the verdict of the jury as being without support on the proposition that Martin's possession was only an encroachment under the rule announced in Bracken v. Jones, 63 Tex. 184. There are many facts in this case that take it out of the rule relied on by appellant. While Martin had under fence, in cultivation, only about 8 acres of the land in controversy, which was a part of his field of about 40 acres, lying on other land owned by him, and while he did not enlarge his inclosure after a line was run between his land and the land in controversy, yet at the time the line was run he informed the record owner that he was claiming the land in controversy. He paid taxes on it for more than 20 years, cut rails, boards, and cross-ties from it, offered to sell it, ran lines, and hacked trees around it, deadened timber on it for the purpose of cultivation, and exercised all the acts of possession incident to ownership. In our judgment these facts raised the issues of limitation.

The court charged the jury not to consider any occupancy prior to January 1, 1889, nor any subsequent to February 18, 1901. Neither side excepted to this charge. On the last-mentioned date, Martin executed to the record owner a tenancy contract. Under this contract appellant advances the proposition that —

"Where the homestead rights are in danger of being lost, the husband may, in good faith, act alone in preserving such rights as far as possible."

And again:

"The agreement dated February 18, 1901, between R. V. Martin and John H. Kirby, is now valid and binding, even though the same was the homestead property of the Martins, because the Martins subsequently abandoned it as such and acquired a new homestead."

There is no merit in these propositions. If Martin's possession raised an issue under the 10 years' statute of limitation, then the verdict of the jury resolved that issue in favor of appellee. An acknowledgment of tenancy, after the end of the limitation period, does not divest the claimant of his limitation title. Brown v. Fisher (Tex. Civ. App.) 193 S. W. 361. If title had matured in Martin on the 18th of February, 1901, the homestead rights were not in danger, and there was no issue to be adjusted between Martin and Mr. Kirby. There is no suggestion that the tenancy contract was sufficient to convey the title to the homestead, which was the character of Martin's title from the date of the execution of the tenancy contract.

On the 23d of December, 1898, Martin wrote the following letter to J. H. Kirby, having reference to the land in controversy:

                          "Chester, Texas. Dec. 23, 1898
                

"J. H. Kirby, Houston.

"Will you be in Woodville at the next term of the D. C. court. I would be glad to see you and try to come to some definite understanding about the land I have been cultivating of yours. If you will not be at Woodville are you willing for W. H. Whitehead to look at the land and say what it is worth with or without the timber. In the meantime I shall pay rent for this year. Hoping to hear from you at once, I am,

                     "Yours respectfully,      R. V. Martin."
                

Appellants insist that this letter was such an acknowledgment of title in J. H. Kirby, the record owner, as to take from Martin's possession its adverse character, if such had been its character prior to the writing of this letter. We recognize that an acknowledgment of tenancy, if made during the limitation period, will destroy the adverse character of the claimant's holding. Nerio v. Christen, 189 S. W. 1038. We also recognize that a formal contract of tenancy is not necessary to destroy the adverse character of a claimant's holding, for an acknowledgment of title in another with an agreement that the possession is not hostile to that title has the same effect; and that such an acknowledgment in direct terms is not necessary, but may be inferred as a matter of law from the conduct of the parties...