Humphreys v. Gribble

• Decision Date: 05 January 1950
• Docket Number: No. 2858,2858
• Citation: Humphreys v. Gribble, 227 S.W.2d 235 (Tex. Ct. App. 1950)
• Parties: HUMPHREYS v. GRIBBLE et al.
• Court: Texas Civil Court of Appeals

Page 235

227 S.W.2d 235

HUMPHREYS v. GRIBBLE et al.

No. 2858.

Court of Civil Appeals of Texas, Waco.

Jan. 5, 1950.

Rehearing Denied Feb. 16, 1950.

Kyle Vick, Waco, for appellant.

Scott, Wilson & Cureton, Waco, for appellees.

LESTER, Chief Justice.

Appellant brought this suit against Len T. Gribble and Mrs. Ruby Haddaway, now Mrs. Ruby Lightfoot, and she will be referred to hereafter as Mrs. Lightfoot, to recover title and possession of Lots Nos. 28 and 29 in Block 2 of the Nelson Beall Addition to the City of Waco, McLennan County, Texas.

Gribble pleaded the ten year statute of limitations to Lot No. 28, which is numbered and known as 716 Earle Street, and Mrs. Lightfoot pleaded the ten year statute of limitations to Lot No. 29, numbered and known as 712 Earle Street. After the introduction of the evidence the appellant filed his motion for an instructed verdict as to both appellees, which the court overruled, and submitted the case upon special issues.

The jury found that Gribble had had peaceable and adverse possession of Lot 28 for ten consecutive years prior to the institution of this suit, and also found that Mrs. Lightfoot had had peaceable and adverse possession of Lot 29 for ten consecutive years prior to the institution of suit. The jury further found that neither of appellees paid any rent to appellant for the use of the premises, and that the appellant and appellees did not make an agreement that the appellees could remain in the premises to take care of the same without the payment of rent. No objections were filed to the court's charge and no additional issues were requested. The court entered judgment based upon the verdict of the jury, awarding title and possession to Lot No. 28 to Gribble and Lot No. 29 to Mrs. Lightfoot. The parties stipulated 'that the appellant holds the fee simple title to the property unless Len T. Gribble has acquired title to the lot he claims under the statute of limitations and unless Mrs. Ruby Lightfoot has acquired title to the lot she claims under the statute of limitations.' The appellant challenges the sufficiency of the evidence to support the findings of the jury.

We will consider first Gribble's right to recover. Gribble was a widower and in April, 1936, his son-in-law and daughter, A. C. Jackson and wife, moved into the house located at 716 Earle Street. Jackson and his wife lived there until his wife's death, which occurred in 1945, but Gribble has occupied the premises since he moved in in 1936 up to the present time.

In order to perfect title under the ten year statute of limitations, Vernon's Ann.Civ.St. art. 5510, possession of the property must not only be adverse under a claim of right, but said possession must be exclusive, which means that the adverse possessor must show an exclusive dominion over the property and an appropriation of it to his own use and benefit for a period of ten years. Amer.Jur. Vol. 1, p. 875; W. T. Carter & Bro. v. Holmes, 131 Tex. 365, 113 S.W.2d 1225. This the appellee wholly failed to do. The only overt acts of ownership and dominion exercised over said property on the part of Gribble, except joint occupancy of the premises with his son-in-law and daughter, as testified to by him are as follows: 'Times were pretty tight when I moved in there and I picked up one piece of tin and another and kinda patched it up to keep from freezing and drowning. I put a chicken fence around there, broke it up and put in a garden and raised some chickens and also raised some rabbits.' But when asked: 'Was this in 1936?' he replied: 'I don't remember what I did in 1936', but he did not testify or prove when he put the fence up or the character of said fence except that it was a chicken fence, or for what length of time he raised chickens and rabbits or how long he used the place fenced for a garden. He moved in as a naked trespasser with his son-in-law and daughter, who were also naked trespassers and the three occupied the premises together for approximately eight years. His son-in-law paid appellee no rent and there is no evidence that the son-in-law recognized the appellee's claim to the property or right to occupy it or dominion over it as being superior to his own. His son-in-law, when asked: 'Who lived there with you, if anyone?' answered: 'My daddy-in-law, Mr. Gribble, or we lived with him, whichever way you want to call it; anyway, we lived together. We moved there at the same time.' He further testified that he never did claim the property and that he never did hear Gribble claim it; that when his wife died he left his furniture and household goods in the house and that they still were there at the time the case was tried. The appellee testified that when he moved in the house that houses were scarce and he moved in and claimed it as his own the very day he moved in. We have a situation of three people occupying these premises for approximately eight years, a man and his wife and the father-in-law, a single man, and there is no evidence to show that the possession of the appellee of said property was exclusive or that he exercised any greater dominion over the same than his son-in-law and daughter, and the only visible acts of ownership of said property upon the part of appellee are those set out above. The property being jointly occupied as established by the undisputed evidence, we are of the opinion that the appellee failed to prove one of the constituent elements of adverse possession, in that he failed to prove that his possession was exclusive.

As to Mrs. Lightfoot, the evidence shows that she, with her husband Haddaway, or Hardaway (he is referred to by both names but for convenience we will refer to him as Haddaway) and children moved into the premises at 712 Earle Street, same being Lot No. 29 in Block No. 2 of Nelson Beall Addition, in September 1933, and they together occupied the premises until sometime prior to March, 1941, when she secured a divorce from her husband and he left and has not occupied the premises since the divorce was granted, but Mrs. Lightfoot continued in possession of the premises and occupied the same as a home with her children until the house burned in February, 1947. The divorce decree was not introduced in evidence and the record is silent as to the disposition, if any, the court made of the children and of the property, if any, and there is no evidence of a conveyance or gift from Haddaway to his wife but the evidence is without dispute that the three chilren remained with their mother and occupied the premises with her after the divorce was granted.

The appellant contends that since there was no evidence that Haddaway ever made any adverse claim to the property, he being the head of the family and by law vested with the management and control of the community property, Mrs. Lightfoot had no right to assert an adverse claim as against the true owner until after the granting of the divorce, and had no right to tack the period of time they occupied the premises together as husband and wife to the time she occupied the same since the granting of the divorce, so as to recover under the ten year statute of limitations; and further contends that there is no privity of possession shown between Haddaway and Mrs. Lightfoot. Haddaway did not testify in person or by deposition in the trial of the case, the evidence showing that he is now living in California. As to the evidence of Haddaway's adverse claim, he moved into the house in September 1933, and occupied it with his family for several years, and after he left his wife continued in possession of it thereafter. There is no testimony that he asserted any claim to the property except his exclusive possession of the same during this period of time. It has been held that possession of premises usually carries with it the presumption of claim of title and in that sense operates as notice to the true owner that his title is disputed. Boy et al. v. McDowell, Tex.Civ.App., 207 S.W. 937, 938. The case of Craig v. Cartwright, 65 Tex. 413, 424, concerning what constitutes an adverse claim, announced the rule to be: 'Possession, with the exercise of such rights as pertain to the owner alone, must be deemed sufficient evidence of adverse claim, in the absence of some evidence indicating that it is held in subordination to the title of the real owner.' The case of Emily B. Gillespie et al. v. Henry Jones et al., 26 Tex. 343, states: 'The legal effect and extent of adverse possession depends of course upon the character of title by which it is sought to be sustained. But in presumption of law, an actual possession must be regarded as adverse to all other titles or claims than that of the possessor, or such as have been recognized by him. And whenever a party permits such possession to be maintained, he does so at his peril.' The case of Rosborough v. Cook, 108 Tex. 364, 194 S.W. 131, 132, in an opinion by Judge Phillips, held that: 'The title by limitation ripens, primarily, only because, in such manner and for such period of time as the different statutes require, notice is given of the hostile claim. Under the three years statute, it is afforded by possession under title or color of title. Under the ten years statute, simply by possession.' See: Young v. City of Lubbock, Tex.Civ.App., 130 S.W.2d 418; Monroe v. Lyons, Tex.Civ.App., 189 S.W.2d 90.

The appellant testified that he had collected rent from the Haddaways while they were living in the house; that from his personal recollection he personally remembered that he had collected rent, but that he could not, without the aid of his record cards, fix the date the rent was collected. The cards were introduced in evidence and showed fifty cents collected June 15, 1935, as the first rent collected and the last date of any collection of rent from Haddaway or Gribble was November 7,...