Jones v. Siler, 1648-6742.

• Decision Date: 13 January 1937
• Docket Number: No. 1648-6742.,1648-6742.
• Citation: 100 S.W.2d 352
• Parties: JONES et al. v. SILER et al.
• Court: Texas Supreme Court

Page 352

100 S.W.2d 352

JONES et al. v. SILER et al.

No. 1648-6742.

Commission of Appeals of Texas, Section B.

January 13, 1937.

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

Suit by Mintie Jones and another against Mary Siler, individually and as administratrix of the community estate of herself and her husband, W. H. Siler. A judgment for plaintiffs was reversed by the Court of Civil Appeals [68 S.W.(2d) 279], and plaintiffs bring error.

Affirmed.

J. H. Byers, of Henderson, and George E. Shelley, Dan Moody, and J. B. Robertson, all of Austin, for plaintiffs in error.

Brachfield & Wolfe, of Henderson, Vinson, Elkins, Sweeton & Weems, C. A. Sweeton, and David T. Searls, all of Houston, and Turner, Rodgers & Winn, of Dallas, for defendants in error.

A. E. Wood, of Austin, as amicus curiæ.

SMEDLEY, Commissioner.

Plaintiffs in error, Mintie Jones and A. B. Finley, sued Mary Siler, individually and as administratrix of the community estate of herself and her husband, W. H. Siler, for the title to an undivided one-twelfth interest in 320 acres of land in Rusk county. Defendants in error pleaded the several statutes of limitation (Vernon's Ann.Civ.St. arts. 5507, 5509, 5510, 5519).

The land was the community property of John and Katy Waggoner. Katy Waggoner died intestate, and plaintiffs in error inherited from her through her son, Mint Waggoner, an undivided one-twelfth interest in the land. Thereafter John Waggoner and all of the heirs of Katy Waggoner, except plaintiffs in error, sold and conveyed the 320-acre tract of land to W. H. Siler for a cash consideration of $345. The deed contained a general warranty, purported to convey the whole title and made no reference to plaintiffs in error or to their interest in the land. It was executed August 19, 1901, and filed for record September 4, 1901. The Court of Civil Appeals found that "W. H. Siler and wife moved on the place in October, 1901, and have since continuously held peaceable and adverse possession, cultivating, using and enjoying the land, paying all taxes thereon when due and claiming title to the whole tract." This finding is not questioned.

The jury in answer to special issues found: That, when Siler and wife purchased the land, they knew that the plaintiffs owned an undivided interest in it; that, at the time Siler and wife went into possession of the land, they recognized the plaintiffs as owning an interest with them in the land; and that Siler and wife did not at any time prior to 10 years before the filing of the suit repudiate or deny the rights of plaintiffs to the land by claiming and asserting title to the land as their own hostile and adverse to the claims of plaintiffs. The trial court rendered judgment for plaintiffs in error for the undivided one-twelfth interest. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment for defendants in error. Siler v. Jones, 68 S.W.(2d) 279.

We agree with the conclusion of the Court of Civil Appeals that, if the third finding made by the jury is construed as a finding that defendants in error did not, prior to ten years before the suit was filed, claim or assert title to the land as their own hostile and adverse to plaintiffs in error, such finding is not supported by the evidence. It conclusively appears from the statement of facts that defendants in error, from the time of their entry upon the land, had for about 30 years' adverse possession sufficient to establish title against plaintiffs in error unless it can be said, by reason of the testimony of the witness Colonel Waggoner, that the possession was not hostile.

Colonel Waggoner, a grandson of John Waggoner, testified that he, then about 11 years of age, was present when the deed conveying the land to Siler was executed and heard a conversation between certain of the parties to the deed. He testified that his uncle said to Siler: "I have two nieces. They have their father's part here," and that Siler said: "That is all right. When they call for a settlement I will settle with them for the land." On cross-examination he testified that, when his grandfather and his uncle mentioned the two girls' interest, Siler said: "All right, when they come for it they can get it." This testimony was followed in the same cross-examination by the statement of the witness that, when his grandfather sold the property, Siler said he would pay the children. On redirect examination the witness gave Siler's statement with reference to the girls' interest as being "when they came back it would be settled."

The judgment of the Court of Civil Appeals in favor of defendants in error is based upon the rule, well settled in this state and in most of the other states, that a conveyance by one cotenant to a stranger to the title, by an instrument purporting to pass the entire title in severalty and not merely the grantor's interest, when followed by entry of such stranger, claiming under such deed, into actual and exclusive possession, amounts to a disseisin of the other cotenants, and that such possession if continued for the statutory period will ripen into title. Olsen v. Grelle (Tex.Com.App.) 228 S.W. 927; McBurney v. Knox (Tex.Com.App.) 273 S.W. 819; Jacks v. Dillon, 6 Tex.Civ. App. 192, 25 S.W. 645 (application for writ of error refused); Welch v. Armstrong (Tex.Civ.App.) 62 S.W.(2d) 335 (application for writ of error refused); Orr v. Armstrong (Tex.Civ.App.) 81 S.W.(2d) 710 (application for writ of error refused); McCook v. Amarada Petroleum Corporation (Tex.Civ.App.) 93 S.W.(2d) 482; Lessee of Clymer v. Dawkins, 3 How. 674, 11 L.Ed. 778; note, 32 L.R.A.(N.S.) pp. 702-711; note 27 A.L.R. pp. 8-13; note, 71 A.L.R. pp. 444-451; 2 R.C.L. pp. 854-855, § 48; 1 Am. Jur. pp. 828-830, § 59; 2 C.J.S. Adverse Possession, p. 601, § 72.

Plaintiffs in error contend that the case is taken out of this rule by the statement made by Siler at the time the deed was executed. They submit that such statement amounted to a recognition of the title of plaintiffs in error and that by reason of such recognition Siler's possession, although taken and continued under the deed conveying the entire title, was not adverse or hostile to plaintiffs in error, but was in fact, or in legal effect, possession by a cotenant.

We are unwilling to give to the indefinite statement or promise made by Siler such far-reaching and controlling effect. We do not construe the testimony of the witness to mean that Siler agreed not to claim the entire title which the deed purported to convey to him or that he agreed to reconvey to plaintiffs in error, whenever they might request it, the undivided one-twelfth interest. Taken as a whole, the testimony of the witness is that at the time the deed was executed Siler was told by one of the grantors about the interest owned by the two girls and that Siler said that, when they came back, or when they called for a settlement, he would settle with them for the land or pay them. Siler's statement, as once given in the testimony of the witness, "when they come for it they can get it," means, we think, when read as a part of the entire testimony of the witness, that they can get settlement or payment for the land and not that their interest in the land will be held for them or reconveyed to them. Notwithstanding the information given to Siler about the interest of the two girls and his statement that he would settle with them or pay them when they called for it, the deed conveying the entire title, with general warranty, was executed and...