Hutto v. Cook

• Decision Date: 15 July 1942
• Docket Number: No. 7895.,7895.
• Citation: 164 S.W.2d 513
• Parties: HUTTO et al. v. COOK et al.
• Court: Texas Supreme Court

164 S.W.2d 513

HUTTO et al. v. COOK et al.

No. 7895.

Supreme Court of Texas.

July 15, 1942.

Rehearing Denied October 7, 1942.

Error from Court of Civil Appeals of Eighth Supreme Judicial District.

Action in trespass to try title by H. H. Hutto and others, against Holman Cook and others. Judgment for plaintiffs was reversed by the Court of Civil Appeals, 151 S.W.2d 642, and defendants bring error.

Judgment of the Court of Civil Appeals reversed and judgment of the District Court affirmed.

W. B. Moss, of Sinton, and Kelso, Locke & King, of San Antonio, for plaintiffs in error.

Seale & Wood, of Corpus Christi, Joe Ternus, of Sinton, and M. A. Childers, of San Antonio, for defendants in error.

SHARP, Justice.

This is an action in trespass to try title, brought by H. H. Hutto et al. to recover certain lots in Block 5 of the H. & H. Oil & Development Subdivision in San Patricio County. In addition to the usual statutory allegations, plaintiffs plead title under the three, five, and ten year statutes of limitation. Trial was to a jury, which found, in answer to the only special issue submitted, that plaintiffs and those under whom they claimed, either in person or through tenants, had held peaceable and adverse possession of the lots in question for ten years prior to the institution of this suit. Judgment was thereupon entered for plaintiffs. The Court of Civil Appeals reversed the judgment and remanded the cause. 151 S.W.2d 642. This Court granted a writ of error.

The question for determination in this case is whether certain testimony of John Gollihar, a party defendant, concerning statements made to him by S. Newman, deceased, the father of some of the plaintiffs, relating to Newman's possession and occupancy of the land in controversy, was admissible under Article 3716, R.C.S.1925; such testimony having been rejected by the trial court.

In 1921 C.V. Jones purchased land adjoining the lots in controversy. When he fenced his property he also enclosed said lots within his fence. In 1923 Jones deeded his property to said S. Newman. The description in the deed did not include the lots in controversy. However, in 1923, S. Newman, with his wife and some of his children, went into possession of all the land within the Jones fence. He built a house on the property to which he had a deed, and put a large part of the land, including part of the lots in controversy, into cultivation. He remained on the land until his death in 1925. He died intestate, and no administration was had on his estate. He was survived by his wife, eleven children, and one grandson by a predeceased daughter. There is no testimony as to the age of any of the children or of the grandson. When S. Newman died, his wife, a daughter, and the grandson were residing on the property with him; but soon thereafter a son, George Newman, moved on the property to help take care of it. They remained on the property until 1927. Early in that year the mother "broke up housekeeping" and moved off. Later in that year the son also moved off; and the property was rented to tenants from 1928 to 1936. The renting of the property, including the lots in controversy, was under the supervision of another son, N. R. Newman. He repeatedly testified that he was managing the property for "the family" or "the estate." At one point he testified that he handled the property for the mother until her death. She died intestate in 1937, and no administration was had on her estate. A tenant occupied the property part of 1937; and in that same year another son, Tom Newman, moved on the land, and remained there until the filing of this suit in September, 1939. He testified that he was on the land "as a tenant of the estate." N. R. Newman, who occupied the land in 1936, and who rented the property, testified that he was claiming all the land for himself and the other eleven heirs; that is, the other ten children and the grandchild. In 1938, after the death of the mother, and after having secured a power of attorney from the other "heirs", he executed an oil and gas lease on the property. This lease later terminated because of the failure by the lessee to pay delay rentals. Delinquent taxes were paid on the land "by the estate"; presumably the estate of the father. The plaintiffs in this suit are the descendants of S. Newman and wife, predominantly the children, or assignees of such descendants.

Upon trial of the case, one of the defendants, John Gollihar, called to the stand by the defendants, was asked if he had had a conversation with S. Newman with reference to the lots in controversy. Upon objection by plaintiffs' counsel, the witness was not permitted to answer the question. In the preparation of the bill of exception, out of the hearing of the jury, Gollihar testified that in 1924 he went to S. Newman's place to see him. Newman, according to Gollihar, admitted that he did not own the lots in controversy, but said that he would like to be permitted to use them. In return, S. Newman agreed to pay the taxes on the lots in controversy which were included within the Jones fence. Gollihar then testified that he, acting for himself and Messrs. Cook, Dupree, Skeen, and Daffern, other lot owners whose interests were represented by defendants in the case, orally agreed to the proposition proposed by S. Newman. The testimony was certainly a declaration against interest and would tend to prove that S. Newman was not claiming the land adversely to the true owners. It was therefore highly relevant testimony, and admissible, unless the witness was incompetent to testify as to such transaction under Article 3716, R.C.S.1925. That Article provides: "In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction, with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent."

It is the contention of the petitioners that they are heirs of S. Newman, and that, therefore, the testimony of the opposite party as to statements by S. Newman is inadmissible. It is therefore necessary to determine whether they are, in fact, heirs within the meaning of the foregoing statute.

Article 5516, R.C.S.1925, provides that: "Peaceable and adverse possession need not be continued in the same person, but when held by different persons successively there must be a privity of estate between them." Privity of estate, as said in Vol. 2, p. 169, § 89, of Texas Jurisprudence, is shown under the following circumstances: "Privity of possession between successive occupants or possessors of the land is shown to have existed, * * * by proof that the earlier occupant's possession and claim passed or was transferred to the later occupant by agreement, gift, devise or inheritance." Also, see McAnally v. Texas Company, 124 Tex. 196, 76 S.W.2d 997. Where it is shown that the earlier occupant died and the later occupant went into possession as an heir, privity between them is established, and their periods of possession may be tacked. Olive v. Bevil,...