Houston & T. C. R. Co. v. Ennis-Calvert Compress Co.

• Decision Date: 11 April 1900
• Citation: 56 S.W. 367
• Parties: HOUSTON & T. C. R. CO. v. ENNIS-CALVERT COMPRESS CO.
• Court: Texas Court of Appeals

56 S.W. 367

HOUSTON & T. C. R. CO. v. ENNIS-CALVERT COMPRESS CO.

Court of Civil Appeals of Texas.

April 11, 1900.

Appeal from district court, McLennan county; Marshall Surratt, Judge.

Action by the Ennis-Calvert Compress Company against the Houston & Texas Central Railroad Company in trespass to try title to certain real estate. From a judgment for plaintiff, defendant appeals. Affirmed.

Denman, Franklin, Cobbs & McGown, for appellant. L. W. Campbell, for appellee.

KEY, J.

This is an action of trespass to try title; appellee being the plaintiff, and appellant the defendant. There was a non-jury trial, resulting in a judgment for the plaintiff, and the defendant has appealed. In addition to the usual averments in a petition in trespass to try title, the plaintiff pleaded title by limitation. The defendant interposed a special exception to so much of the petition as undertook to plead title by limitation, and assigns the overruling of this exception as error. It is unnecessary to revise this ruling, because we are of the opinion that the testimony does not support the plea of limitation. The plaintiff sought to maintain its action upon two theories,—one being title by limitation; and the other, common source of title, the plaintiff's being the superior. We decide against the plaintiff on the first theory, and in its favor on the second. The common source of title was the Houston & Texas Central Railway Company, a corporation chartered the 11th day of March, 1848. June 11, 1877, said corporation conveyed the land in question to the Waco Produce Company, and the title thereto passed by mesne conveyances to the Waco-Ennis Compress Company, a corporation chartered under the laws of this state; and thereafter the latter corporation, in the mode provided by the statute, amended its charter, changing its name to the Ennis-Calvert Compress Company, the plaintiff in this cause. The deed referred to, of June 11, 1877, contained the following provision: "Now, the separate and independent conditions of this quitclaim deed are as follows, to wit: In case the said Waco Produce Company shall within six months from the date hereof (and time is declared to be the essence of the contract) construct a cotton press and the necessary sheds upon the said tract of land herein conveyed, then and in that event this instrument is to take effect, and not otherwise: provided, nevertheless, that in case said Waco Produce Company, or any person holding or claiming under it, shall at any time thereafter make use of the tract herein conveyed, or any part thereof, for any purpose or purposes than that hereinbefore specified, or shall fail or neglect to keep and maintain its compress in good working condition, or shall in any way forfeit its charter, or shall become insolvent, on the happening of any one of said several contingencies, or upon the failures aforesaid, or any one of them, the title and possession of the tract herein conveyed shall in consequence and by force thereof, and without the necessity of a reconveyance, ipso facto revert to and vest in said Houston & Texas Central Railway Company, its successors and assigns; and thereupon this instrument shall become null and void as against said railway company, but shall be in force as an estoppel of all claims to title or possession as against said grantee herein. Reference is here made to a certain quitclaim deed executed by George Butler to said Houston & Texas Central Railway Company, of date June 8th, 1877, and to the conditions therein expressed." The Waco Produce Company...