Houston Terminal Land Co. v. Westergreen, 4697.

• Citation: 27 S.W.2d 526
• Decision Date: 30 April 1930
• Docket Number: No. 4697.,4697.
• Parties: HOUSTON TERMINAL LAND CO. v. WESTERGREEN et al.
• Court: Supreme Court of Texas

Page 526

27 S.W.2d 526

HOUSTON TERMINAL LAND CO. v. WESTERGREEN et al.

No. 4697.

Supreme Court of Texas.

April 30, 1930.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by the Houston Terminal Land Company against E. F. Westergreen and others. A judgment for plaintiff entered on an instructed verdict was reversed and remanded for new trial by the Court of Civil Appeals (285 S. W. 927), and the plaintiff brings error.

Judgment of the Court of Civil Appeals reversed, and that of the District Court affirmed.

Andrews, Streetman, Logue & Mobley, of Houston, for plaintiff in error.

C. E. McVey, of Houston, and Hart, Patterson & Hart, of Austin, for defendants in error.

PIERSON, J.

Writ of error was granted herein to review the judgment of the Court of Civil Appeals for the Sixth Supreme Judicial District, wherein it reversed the judgment of the district court upon a question of estoppel by judgment. 285 S. W. 927.

This suit was filed by plaintiff in error against defendants in error and others to recover 15 acres of land in Harris county, Tex. The action was in the usual form of trespass to try title. The defendants in error pleaded the general issue, not guilty, and especially as follows:

"And for further answer herein now come the defendants and plead and show the court that if the plaintiff ever had any fee simple title to the land or any portion of same, by or through any of plaintiff's grantors herein or through said plaintiff herein, then that the same has been lost to said plaintiff and the plaintiff's grantors and those by and through and under which the plaintiff claims, and that the title to said real estate described in said plaintiff's petition is now outstanding in the name of other and different persons in this:

"That defendants' father and mother, August Ludtke and Rosina Ludtke, prior to the year 1872, took possession of the following described land and premises under a claim of right, and continued actual, notorious, visible possession thereof for more than ten years before the filing of this suit, claiming said land and premises adverse to all the world and plaintiff's grantors, said land so taken possession of by the said August Ludtke and Rosina Ludtke being described as follows, to-wit: (Then follows a description by metes and bounds of a large tract of land, consisting of approximately 1,000 acres or more, and which includes the land here in controversy) —claiming the right, title, and interest in and to said land, residing thereon, cultivating, using, and enjoying the same, and continued to reside thereon, cultivate, use, and enjoy the same for more than ten years next immediately after the year 1872, claiming to own the same in their own right, and that the same included the land sued for herein by the plaintiffs, and that thereby the title vested in, and ripened in, the said August Ludtke and Rosina Ludtke, husband and wife; that these defendants are the direct descendants of said August Ludtke and Rosina Ludtke, and are the heirs at law of said August Ludtke and Rosina Ludtke, and entitled to the title and possession of said land as such heirs at law of the said August Ludtke and Rosina Ludtke, and that said plaintiff herein, if ever it or any of its grantors were vested with title to said land and premises described in said plaintiff's petition, or any portion thereof, such title vested in and became the title of said August Ludtke and Rosina Ludtke by reason of the statute of limitation of ten years; that said August Ludtke and Rosina Ludtke's possession of said premises was adverse to said plaintiff and all of said plaintiff's grantors and their possession continuous and notorious under a claim of right, and they cultivated used, and enjoyed the same for a greater period than ten years prior to the institution of any suit by the plaintiff herein, or any assertion of ownership of plaintiff here, and that said title is now vested in the heirs of said August Ludtke and Rosina Ludtke, or such grantors as they may have, and it is a superior outstanding title to any title claimed or possessed by said plaintiff herein."

There was evidence tending to support claims of defendants in error of title by limitation to the entire tract of land described in their answer.

Plaintiff in error introduced in evidence a final judgment in its favor in a former suit, wherein it and the defendants in error were parties, in which said former suit plaintiff in error recovered of defendants in error two separate tracts of land designated as lots 14 and 15, the same being a part of the large tract of land of 1,000 acres or more described by defendants in error in their plea of limitation in this suit, and among other defenses plaintiff in error relies upon said former judgment as creating an estoppel by judgment against these defendants in error to claim title to the 15 acres of land here involved, upon the principle discussed and upheld by this court in the case of Hanrick v. Gurley, 93 Tex. 479, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330.

The trial court instructed the jury to return a verdict in favor of plaintiff in error. On appeal, the Court of Civil Appeals reversed said judgment of the district court and remanded the cause to that court for a new trial, and in doing so held that the rule of estoppel by judgment as announced in Hanrick v. Gurley, supra, does not apply to the facts in this case.

We quote the following from the case of Hanrick v. Gurley, 93 Tex. 479, 54 S. W. 347, 55 S. W. 119, 56 S. W. 330, as disclosing and setting out the rule of estoppel by judgment as applicable to this litigation:

"While the cause of action in that case was not the same as that now asserted, the question as to Nicholas Hanrick's right to inherit from Edward was and is directly involved in, and common to, both cases, and was expressly adjudicated in the former. Although the judgment of the court was, as we formerly held, only a denial of the right to recover the particular land there in controversy, its estoppel is much broader, and concludes the parties upon every question which was directly in issue, and was passed upon by the court in arriving at its judgment. Cromwell v. Sac Co., 94 U. S. 353, 24 L. Ed. 195; Nichols v. Dibrell, 61 Tex. 541; Birckhead v. Brown, 5 Sandf. [7 N. Y. Super. Ct.] 145; Boyd v. Alabama, 94 U. S. 645, 24 L. Ed. 302; Southern Pac. R. Co. v. United States, 168 U. S. 49, 18 S. Ct. 18, 42 L. Ed. 355; Beloit v. Morgan, 7 Wall, 621, 19 L. Ed. 205; McDonald v....