Kirby Lumber Corp. v. Southern Lumber Co., A-855.

• Decision Date: 19 June 1946
• Docket Number: No. A-855.,A-855.
• Citation: 196 S.W.2d 387
• Parties: KIRBY LUMBER CORPORATION v. SOUTHERN LUMBER CO. et al.
• Court: Texas Supreme Court

Page 387

196 S.W.2d 387

KIRBY LUMBER CORPORATION v. SOUTHERN LUMBER CO. et al.

No. A-855.

Supreme Court of Texas.

June 19, 1946.

Rehearing Denied October 9, 1946.

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

Trespass to try title by Kirby Lumber Corporation against the Southern Lumber Company and others. Judgment for defendant was affirmed by Court of Civil Appeals, 192 S.W.2d 460, and plaintiff brings error.

Judgment of Court of Civil Appeals affirmed.

John B. Forse, of Newton, and Fountain, Cox & Gaines and J. M. Slator, III, all of Houston, for petitioner.

A. M. Huffman, of Beaumont, and K. W. Denman, of Lufkin, for respondents.

ALEXANDER, Chief Justice.

John H. Kirby was the common source of title to 160 acres of land in the George Clark Survey in Tyler County. John B. Lockhart, Sr., cultivated this land, or at least a part thereof, for a sufficient period of time to raise the issue of title in him by limitation. After his death all his heirs, except his daughter Mattie Lockhart, and their grantees brought what is known as the Pederson suit against John H. Kirby to recover the land. They claimed title by limitation. In that case the jury found that John B. Lockhart, Sr., had had peaceable and adverse possession of the 160 acres of land for more than ten years. Accordingly judgment was rendered for the plaintiffs in that suit for title to 107½ acres undivided interest in the 160-acre tract. This was all of the 160 acres except the interest which Mattie Lockhart would have owned therein if John B. Lockhart, Sr., had acquired title to the 160 acres by limitation. Plaintiffs therein were awarded a writ of possession to the whole 160 acres. John H. Kirby then quitclaimed his interest in the entire 160-acre tract to the plaintiffs in that suit. Through various conveyances the land so acquired by the plaintiffs in the Pederson suit became vested in the Southern Lumber Company et al., who are defendants in this suit.

Later Mattie Lockhart conveyed her interest in the land, if any she had, to J. A. Mooney, who conveyed the same interest to John H. Kirby, and Kirby conveyed it to the Kirby Lumber Corporation.

Kirby Lumber Corporation brought suit against said Southern Lumber Company et al. to recover the 160 acres of land. Plaintiffs in this suit plead title by limitation. Upon the trial of this case Kirby Lumber Corporation sought to establish that John B. Lockhart, Sr., had had peaceable and adverse possession of the land for more than ten years prior to his death, but the jury found against Kirby Lumber Corporation on this issue. Accordingly judgment was for the defendants, and this judgment was affirmed by the Court of Civil Appeals. 192 S.W.2d 460.

It is the contention of Kirby Lumber Corporation that since in the Pederson suit the plaintiff therein took the position and obtained a finding from the jury that John B. Lockhart, Sr., had had peaceable and adverse possession of the 160-acre tract of land for more than ten years prior to his death, their grantees, the defendants in this suit, which involves the title to Mattie Lockhart's interest in the same tract of land, are now estopped to contend otherwise in this case. They therefore insist that the trial court should have rendered judgment for the plaintiff non obstante veredicto.

More specifically, Kirby Lumber Corporation contends that the judgment in the Pederson suit for 107½ acres undivided interest in the 160-acre tract was arrived at only after taking into consideration the heirship of John B. Lockhart, Sr., and wife, and the conveyances made by such heirs, including Mattie Lockhart, prior to the filing of that suit; that said judgment necessarily affected the whole 160 acres, and was based on the finding of the jury that John B. Lockhart, Sr., had acquired title by limitation to the whole 160 acres; and since plaintiffs in the Pederson suit took the benefit of that judgment, they would be estopped to deny that John B. Lockhart, Sr., acquired title by limitation to the entire 160 acres; and since Southern Lumber Company et al. hold title to the 107½ acres undivided interest in the 160-acre tract under plaintiffs in the Pederson suit, they are estopped to deny that John B. Lockhart, Sr., acquired title by limitation to the remaining 52½ acres undivided interest then claimed by Mattie Lockhart and subsequently conveyed by her to the plaintiffs in this suit.

It appears to be a recognized principle of law that where, in a former suit, an essential issue of fact has been determined and adjudicated, the judgment therein will estop the parties from relitigating the same issue in a subsequent suit between the same parties, even though the subsequent suit is upon a different cause of action. Houston Terminal Land Co. v. Westergreen, 119 Tex. 204, 27 S.W.2d 526; Stephenson v. Miller-Link Lumber Co., Tex.Com.App., 277 S.W. 1039; Hanrick v. Gurley, 93 Tex. 458, 54 S.W. 347, 55 S.W. 119, 56 S.W. 330. It is also true that the protection of such a decision as well as its restrictions extend not only to the immediate parties to the suit but also to those who stand in privity with them. "Privity, in this connection, means the mutual or successive relationship to the same rights of property; that is to say, all persons are privy to a judgment whose succession to the rights of property therein adjudicated are derived through or under one or the other of the parties to the action, and which accrued subsequent to the commencement of the action." Cain v. Balcom, 130 Tex. 497, 109 S.W.2d 1044, 1046; 34 C.J. 973, sec. 1391.

It is equally well settled, however, that such a judgment is not binding upon those who were not parties thereto or who are not holding in privity thereto. Campbell v. McLaughlin, Tex.Com.App., 280 S. W. 189.

The predecessors in title of the defendants in this suit were parties to the Pederson suit, but Mattie Lockhart, under whom plaintiffs in this suit claim title, was not a party thereto. Since Mattie Lockhart was not a party to the Pederson suit the judgment in that case was not binding upon her nor her privies. Bass v. Sevier, 58 Tex. 567; Read v. Allen, 56 Tex. 182; 30 Am.Jur. 951; 34 C.J., p. 973, § 1391. Since the judgment in that suit was not binding upon Mattie Lockhart nor those who claim under her, plaintiffs who claim under Mattie Lockhart may not invoke its benefits in their behalf, for a judgment must be mutually binding in order to be available as an estoppel in behalf of either of the parties or their privies in a subsequent suit. Corpus Juris states the rule as follows: "It is a rule that estoppel must be mutual; and therefore a party will not be concluded, against his contention, by a former...