Kirby Lumber Corporation v. Southern Lumber Co.

• Decision Date: 17 January 1946
• Docket Number: No. 4331.,4331.
• Citation: 192 S.W.2d 460
• Parties: KIRBY LUMBER CORPORATION v. SOUTHERN LUMBER CO. et al.
• Court: Texas Court of Appeals

192 S.W.2d 460

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

No. 4331.

Court of Civil Appeals of Texas.

January 17, 1946.

Rehearing Denied February 13, 1946.

Appeal from District Court, Tyler County; Clyde Smith, Judge.

Trespass to try title by Kirby Lumber Corporation against the Southern Lumber Company and others. From an adverse judgment, plaintiff appeals.

Affirmed.

Fountain, Cox, Gaines & Wilcox, of Houston (J. M. Slator, III, of Houston, of counsel) and J. B. Forse, of Newton, for appellant.

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

COE, Chief Justice.

This appeal is from a judgment of the trial court in a suit in trespass to try title brought by appellant as plaintiff in the trial court against appellees, defendants in the trial court. Appellant asserts title to an undivided 52½ acres out of a 160 acre tract in the George Clark survey in Tyler County, Texas.

This is the second appeal of this case. Our opinion on the first appeal is reported in 181 S.W.2d 859, in the case of Southern Lumber Company et al., appellees here, v. Kirby Lumber Corporation, appellant in this cause. While the facts on a former appeal are substantially the same as here presented, there is a change in the chain of title under which appellant claims because of which it contends our former opinion is not determinative of this appeal. We hesitate to again set out the facts in full but for the convenience of the parties we will do so.

John B. Lockhart, Sr., cultivated a field in the N.E. corner of the George Clark one-third league survey in Tyler County, Texas, for a period of 25 or 30 years prior to his death in March 1894. He was survived by his wife, Mary Lockhart, a son, John Lockhart, Jr., and three daughters, Mary Grimes, wife of G. W. Grimes, Elizabeth Ann (Betty) Lockhart and Mattie Lockhart. After the death of his father, John Lockhart, Jr., lived in the house, which was located on the Ives survey immediately north of and adjoining the George Clark survey, with his mother and unmarried sisters until his death on December 30, 1909, and together with his sisters cultivated the field on the Clark survey until 1905, at which time it was abandoned.

On July 29, 1903, John Lockhart, Jr., executed a deed to J. S. Pate and N. A. McNeil covering 100 acres of land out of the south part of the 160 acre tract involved herein.

On September 6, 1910, G. W. Grimes, Mary Grimes, Mrs. Mary Lockhart, Betty Lockhart, Mattie Lockhart and J. S. Pate gave a power of attorney to a lawyer named Joe W. Thomas, giving him power to sue for and recover the 160 acres of land involved in this suit, which was located in the N.E. corner of the George Clark one-third league, so as to include the improvements of the grantors situated in said N.E. corner. The power of attorney further provided that in consideration of the service performed and to be performed by said attorney "we do hereby grant, sell and convey, and by these presents have granted, sold and conveyed unto the said Joe W. Thomas 1/4 undivided interest in and to the above described 160 acres of land owned and claimed by us, and 1/4 of all proceeds from sale or amount recovered by suit of said land and premises."

On October 29, 1911, Betty Lockhart died without issue and without having been married, and Mrs. Mary Lockhart, surviving widow of John B. Lockhart, Sr., died intestate April 8, 1912.

In the meantime N. A. McNeil had died, leaving surviving his wife, Nannie McNeil, who later married Pederson, and a daughter, Mary Bell McNeil.

On August 30, 1912, Mattie Lockhart acknowledged tenancy to John Henry Kirby to that portion of the George Clark 1476 acre survey of which she then held possession, acknowledging in such instrument to John H. Kirby that he was the owner of said land, and agreed to look after and protect from depredation as far as she could the premises so occupied by her, and agreed to deliver possession thereof to John H. Kirby or his assigns, whenever requested by him or them so to do, and further stated that she did not claim any right, title or interest in and to said land except as a tenant at will and by sufferance of John H. Kirby.

On March 8, 1913, Mrs. Nannie Pederson, C. A. Pederson, Mary Bell McNeil, J. S. Pate, Joe W. Thomas, G. W. Grimes and Mary Grimes brought suit against John H. Kirby and Willie Hyman in the district court of Tyler county, in cause No. 3245, in trespass to try title to recover the land involved herein, claiming that they had matured title to same under the 10 years statute of limitation. Mattie Lockhart was not made a party to that suit.

On August 13, 1913, judgment was entered in said cause, based upon the verdict of the jury, which found that John B. Lockhart, Sr. had perfected limitation title to the 160 acre tract of land. However, the judgment only awarded to plaintiff the title and possession of an undivided 107½ acres in the 160 acre tract. Thereafter, on March 4, 1914, John Henry Kirby et al. gave to Mrs. Nannie Pederson, Mary Bell McNeil, J. S. Pate, Joe W. Thomas and Mrs. Mary Grimes a quitclaim deed covering all of the grantors' right, title and interest in and to the 160 acre tract of land involved in that suit. The appellees hold by inheritance and under a chain of conveyance from Mrs. Nannie Pederson, Mary Bell McNeil, J. S. Pate and Joe W. Thomas and Mrs. Mary Grimes.

On October 28, 1914, Mattie Lockhart conveyed to J. A. Mooney by general warranty deed an undivided 52½ acres in the 160 acre tract described in the case of Nannie Pederson et al. v. John H. Kirby et al. By deed dated July 30, 1926, J. A. Mooney conveyed his interest in this tract of land to John H. Kirby. By mesne conveyances Kirby Lumber Corporation acquired such title, if any Kirby had, to said 52½ acres. It will be noted that on the former appeal appellant's chain of title from Mattie Lockhart was the deed above referred to to J. A. Mooney and from Mooney to the Kirby Lumber Corporation, the deed from Mooney to John H. Kirby and the deed from John H. Kirby to Kirby Lumber Corporation not being in their chain of title. The question whether John B. Lockhart, Sr. had perfected title by limitation to the 160 acres of land involved in the Pederson suit was submitted to the jury who found that he had not.

Appellant's first three points of error complain of the action of the trial court in overruling their motion for an instructed verdict and overruling their...