Howland v. Hough

• Decision Date: 19 July 1978
• Docket Number: No. B-6964,B-6964
• Citation: 570 S.W.2d 876
• Parties: Oliver A. HOWLAND, Petitioner, v. J. T. HOUGH et ux., Respondents.
• Court: Texas Supreme Court

Page 876

570 S.W.2d 876

Oliver A. HOWLAND, Petitioner, v. J. T. HOUGH et ux., Respondents.

No. B-6964.

Supreme Court of Texas.

July 19, 1978.

Rehearing Denied Oct. 11, 1978.

Vernon M. Pfluger, Ferguson & Ferguson, Russell G. Ferguson, Austin, for petitioner.

Sneed, Vine, Wilkerson, Selman & Perry, Forest N. Troutman, Austin, for respondents.

DENTON, Justice.

This is an action in trespass to try title brought by Oliver A. Howland against J. T. Hough and wife, Lucille Hough, to recover an 8.36 acre tract of land in Travis County, Texas. After a jury trial, the trial court rendered judgment vesting title in the defendant Houghs. The court of civil appeals reversed and remanded for new trial because of the erroneous exclusion of evidence. 553 S.W.2d 162. We reverse the judgments of the courts below and render judgment vesting title and possession of the land in Oliver A. Howland.

Howland attempted to prove title to the disputed tract of land by a regular chain of title from the sovereign. Alternatively, he pleaded and offered evidence relating to adverse possession under the 3, 5, 10, and 25 year statutes of limitation. Finally, he contended that he was in possession of the property prior to the Houghs' entry upon the land. The Houghs, on the other hand, pleaded not guilty, and claimed adverse possession under the 3, 5, 10, and 25 year statutes of limitations.

In answer to special issues, the jury found: (1) Neither Howland nor the Houghs had held adverse possession of the land for a 10 year period prior to the filing of this suit. (2) Howland was in possession of the tract prior to February 25, 1974, the date of the Houghs' alleged unlawful entry. (3) The Houghs were possessors of the tract in good faith "for at least one year next before the commencement of this lawsuit on October 15, 1974." (4) The Houghs made valuable improvements to the land without the intent to defraud, and these improvements were removable and enhanced the value of the land by $17,870. Based upon the jury verdict, the trial court rendered judgment that plaintiff Howland take nothing and that title to the land be vested in the defendant Houghs.

In the court of civil appeals, Howland sought a reversal and rendition in his favor, or alternatively, a remand for a new trial. The court held that Howland had not established his title by a regular chain of conveyances from the sovereign, and that he had not established that he was in actual prior possession of the tract. Therefore, the court overruled his rendition points. Based upon the alleged erroneous exclusion from evidence of a prior deed given by the Houghs which contained an admission against interest of the Houghs', the court of civil appeals reversed and remanded for new trial. Howland now seeks outright rendition of judgment in his favor based upon either the strength of his own title or the jury finding of his prior possession.

The 8.36 acre tract in dispute was originally a part of the James O. Irvine Survey, sometimes called the "Irwin" or "Erwin" survey. Howland introduced nine deeds into evidence to establish his chain of title from the sovereign. The deeds adduced in evidence had two principal defects. First, after the patent from the Republic of Texas in 1845 to James O. Irvine, there is a gap in title until the 1878 deed from Henry Hill to August Meissner. Second, the tract in dispute is not within the literal calls of the deed from Hill to Meissner, nor any of the subsequent deeds in Howland's chain of title.

Howland contends that the missing link in his chain of title can be eliminated by application of the presumption of a grant doctrine. He argues that long continued and undisturbed possession of the land should give rise to the presumption of a conveyance as a matter of law, especially since the gap was 96 years prior to the filing of this suit. The Houghs assert that the presumption of a lost grant is one of Fact, and is for the jury to decide. Since no special issue was requested or submitted on presumed grant, the Houghs argue that the issue has been waived and Howland has not proven a complete chain of title from the sovereign.

We agree that it is the law in Texas that the presumption of a grant which arises from long continued possession of property under a claim of title coupled with other corroborating circumstances is generally a presumption of fact. Thus, the trier of fact usually must determine whether the inference of a grant is warranted by the evidence. Swilley v. McCain, 374 S.W.2d 871 (Tex.1964); Herndon v. Vick, 89 Tex. 469, 35 S.W. 141 (1896); Page v. Pan American Petroleum Corp., 381 S.W.2d 949 (Tex.Civ.App. Corpus Christi 1964, writ ref'd n. r. e.), Cert. denied, 382 U.S. 820, 86 S.Ct. 45, 15 L.Ed.2d 66 (1965); 4 F. LANGE, LAND TITLES AND TITLE EXAMINATION § 405 (Texas Practice 1961). Whether there is an issue of fact or law, however, depends upon the record in each case.

The deeds in Howland's chain of title show continuous record conveyances of the land described therein from the granting of the Irvine patent until the present time, with the sole exception of the 1845-1878 period. The Houghs' claim to title arises from a deed given to them by Jesus Garcia in 1947, along with a "Correction And Supplemental Deed" in 1954. No prior chain of title was shown by the Houghs, other than a reference in their deed from Garcia to a sheriff's deed in 1904. That deed was not produced in evidence. The Houghs have not tried to connect their title to either the Irvine patent or any purported record title holder during the 33 year gap in title.

Because the gap in Howland's title occurred 96 to 129 years before this suit was brought, no direct evidence was available as to possession of the land. Proof of possession is not, however, an absolute prerequisite to the presumption of a lost conveyance. In Magee v. Paul, 110 Tex. 470, 479, 221 S.W. 254, 257 (1920), this Court said:

Actual possession of the land by Stephen Albert or by his assigns was not essential to the establishment by circumstantial evidence of the alleged missing link or links in the title . . . .

See Baldwin v. Goldfrank, 88 Tex. 249, 31 S.W. 1064 (1895); Garner v. Lasker, 71 Tex. 431, 9 S.W. 332 (1888); Brewer v. Cochran, 45 Tex.Civ.App. 179, 99 S.W. 1033 (Galveston 1907, writ ref'd).

Since the transactions with respect to the land in controversy took place so long ago, we regard Howland's unbroken chain of title since 1878 as evidence of the assertion of ownership of the land. With reference to the evidence necessary to presume a grant, it has been stated:

Where then, under such rule it is sought to establish such deed from circumstances, and among such circumstances are long and continuous claim of title and ownership, which is not shown to have been disputed by any adverse claim, with such indicia of ownership by payment of taxes, successive conveyances, etc., as are here present, we can see no objection to the application of the rule referred to, to the admission of evidence and declarations made by persons claiming such title and ownership, which serve to explain such claim in cases where the parties are all dead, and length of time, by destroying other, perhaps more satisfactory, proof, has created the necessity of a resort to the evidence of such declarations.

Every such sale and conveyance involves necessarily, by presumption, a claim of title in the grantor, which is nothing more than a declaration that he has title, and it is for that purpose that the evidence is admitted.

The claim of title and assertion of ownership, as evidenced by various acts of sale and conveyances, all made matter of public record, and by payment of taxes by his vendees, are admissible as circumstances, without actual possession, which is not essential, especially in case of wild land such as this, of which there has never been actual possession by anybody.

Brewer v. Cochran, supra, at 99 S.W. at 1035-36. Since there is no suggestion that a claim has ever been asserted by any purported heir or grantee of James O. Irvine, and since there is a series of sales and conveyances of the land in Howland's chain of title which evidences an assertion of ownership, we regard possession of the land as sufficiently established by the circumstances as a predicate for presuming a grant. Although the presumption of a lost grant or conveyance is usually one of fact, it has been sufficiently established in this case to presume it as a matter of law because the deeds are so ancient and the evidence is undisputed. Page v. Pan American Petroleum Corp., 412 S.W.2d 797 (Tex.Civ.App. Houston 1967, writ ref'd n. r. e.); Page v. Pan American Petroleum Corp., 381 S.W.2d 949 (Tex.Civ.App. Corpus Christi 1964, writ ref'd n. r. e.), Cert. denied, 382 U.S. 820, 86 S.Ct. 45, 15 L.Ed.2d 66 (1965). With reference to the doctrine of presumption of a grant, this Court has said:

The rule is essential to the ascertainment of the very truth of ancient transactions. Without it, numberless valid land titles could not be upheld. Its application becomes more and more important with the passing years, as it becomes more and more difficult to get living witnesses to that which long ago transpired.

Magee v. Paul, 110 Tex. 470, 478, 221 S.W. 254, 257 (1920). We therefore hold that Howland has filled the ancient 1845-1878 gap in his title by establishing the facts necessary to presume a grant from James O. Irvine to Henry Hill as a matter of law.

Howland's next problem in proving a chain of title from the sovereign is that the disputed tract does not fall within the literal calls of his deed. The patent from the Republic to James O. Irvine contained the following description:

Beginning at the North West corner of quarter No. 5 Surveyed for Wm. Rhodes. (1) Thence South 71o West two thousand one hundred and fifty varas the South East corner of Survey No. 3 of Harvey's work. (2) Thence South 30o West eight hundred varas the North East corner of...