Kirby v. Houston Oil Co. of Texas, 4402.

• Citation: 200 S.W.2d 246
• Decision Date: 09 January 1947
• Docket Number: No. 4402.,4402.
• Parties: KIRBY et al. v. HOUSTON OIL CO. OF TEXAS et al.
• Court: Court of Appeals of Texas

Page 246

200 S.W.2d 246

KIRBY et al. v. HOUSTON OIL CO. OF TEXAS et al.

No. 4402.

Court of Civil Appeals of Texas. Beaumont.

January 9, 1947.

Rehearing Denied February 12, 1947.

Appeal from District Court, Hardin County; Clyde E. Smith, Judge.

Suit by Mary Wall Kirby and others against the Houston Oil Company of Texas and others in trespass to try title to recover title and possession of mineral estate in a tract of land wherein defendants filed a cross-action. From a judgment for defendants, plaintiffs appeal.

Affirmed.

E. E. Easterling, of Beaumont, and Bryan F. Williams, of Galveston, for appellants.

Blades, Chiles, Moore & Kennerly, of Houston (B. F. Whitworth, of Houston, of counsel), for appellees.

COE, Chief Justice.

This action was brought in the district court of Hardin County, Texas, by appellants, Mary Wall Kirby, a widow, Wier Kirby, Hallie May Wilcut and husband, Warren E. Wilcut, Hattie Bell Harlee and husband, Raymond James Harlee, against the appellees, Houston Oil Company of Texas and American Republic Corporation, in the form of trespass to try title to recover the title and possession of the mineral estate in a 19 acre tract of land in the George W. Brooks league in Hardin county and for damages arising from the extraction by the appellees of oil from the tract of land involved. The appellees in addition to joining issue with the appellants as to the title, asserted title in themselves in a cross action against the appellants. The issue as to damages to appellants and the issue on the plea by the appellees as to improvements by them on the land in good faith was severed by the trial court and the cause proceeded to trial before a jury on the issue of title to the land involved.

At the close of all the evidence the court, upon motion of appellees, instructed a verdict in their favor and rendered judgment that appellants take nothing and that appellees recover on their cross action.

Appellants specially pleaded that W. S. Frazier and wife, L. J. Frazier, had acquired title to the 19 acres of land here involved by adverse possession under the 10 year statute of limitation prior to August 2, 1904, alleging that the 19 acre tract was a part of a 160 acre tract upon which W. S. Frazier and wife had continuously occupied and had maintained a homestead thereon for more than 19 consecutive years prior to August 2, 1904, and had thereby matured title to said 160 acres as their homestead under the 10 years statute of limitation; that after having matured such title by limitation that they continued to use and occupy such land as their homestead and never at any time abandoned same or in any wise interrupted the use thereof as their homestead prior to August 2, 1904, on which date they conveyed therefrom the 19 acre tract here involved to H. S. Kirby. They also alleged that H. S. Kirby married Mary Wall Kirby, one of the appellants herein, in the year 1897 and remained her husband until his death in the year 1933; that H. S. Kirby died intestate leaving as his only heirs the appellants, Hallie May Wilcut, who married Warren E. Wilcut, Hallie Bell Harlee who married Raymond James Harlee, and Wier Kirby. As to the title to the land involved, appellees answered by general denial and pleas of not guilty and the 3, 5, 10 and 25 years statutes of limitation, and by way of cross action, in addition to the usual allegation of trespass to try title, plead the same statutes of limitation in support of their title. To support their allegations that W. S. Frazier and wife, L. J. Frazier, had acquired title to 160 acres of land out of the George W. Brooks league, of which the 19 acres involved is a part, by adverse possession under the 10 years statute of limitations prior to August 2, 1904, on which date W. S. Frazier and wife, L. J. Frazier, conveyed by general warranty deed the 19 acre tract here involved to H. S. Kirby, they offered the evidence of three witnesses to the effect that W. S. Frazier and wife moved upon the Brooks league in 1873 or the first part of 1874, and continued to live at such location until his death in 1912 or 1914; that in 1884 W. S. Frazier had a surveyor to survey and mark out 160 acres of land, including his improvements, a part of said 160 acres being north of Black creek and the remainder south of Black creek; that the 19 acre tract here involved is a part of said 160 acre tract and lies north of Black creek. The evidence further shows that Frazier's house, field, pasture and improvements were at all times south of Black creek; that Frazier never lived north of Black creek, never cultivated, pastured or enclosed any land north of said creek; that during the time Frazier lived upon said land that he claimed 160 acres; that following his death his widow, Mrs. L. J. Frazier, continued to live upon the old place for 8 or 10 years. Appellants also offered in evidence the deed above referred to from W. S. Frazier and wife, L. J. Frazier, conveying to H. S. Kirby the 19 acre tract here involved, said deed being dated August 2, 1904, with proof of heirship showing the appellants had succeeded to such title as was conveyed to H. S. Kirby by said deed. Appellees offered in evidence the following chain of title:

(1) Grant from the Government of Coahuila and Texas to George W. Brooks dated August 22, 1835, granting 4428 acres or a League of land, commonly known and referred to as the George W. Brooks League.

(2) Deed from George W. Brooks to Edwin O. Legrand dated February 24, 1841, conveying the entire Brooks League.

(3) Deed from Edwin O. Legrand to Mary E. Frazer and husband William Frazer dated February 7, 1852, and conveying the entire Brooks League.

(4) Deed from Mary E. Frazer and husband William B. Frazer to Thomas J. Word dated November 6, 1858, and conveying the entire Brooks League.

(5) Deed from Thomas J. Word to John J. Word dated August 17, 1870, and conveying the entire Brooks League except 160 acres out of the Northwestern part referred to as the Cryer Place.

(6) Deed from John J. Word and wife to John P. Irvin dated July 20, 1881, filed for record November 30, 1881, and conveying an undivided one-half interest in the entire Brooks League except 160 acres referred to as the Cryer Place.

(7) Deed from John J. Word to R. B. Campbell dated February 24, 1871, filed for record December 11, 1871, and conveying an undivided one-half interest in the entire Brooks League except 160 acres referred to as the Cryer Place.

(8) Deed from R. B. Campbell and wife Louisa P. Campbell to Louise Parmley Campbell (born Louise Parmley Word) dated December 4, 1873, filed for record January 13, 1874, and conveying an undivided one-half interest in the entire Brooks League except 160 acres referred to as the Cryer Place.

(9) Guardianship Proceedings in the Estate of Louise Parmley Campbell Word, being the same person as Louise Parmley Campbell, authorizing the sale by T. J. Word, Guardian, to John P. Irvin of the undivided one-half interest in the Brooks League owned by Louise Parmley Campbell.

(10) Deed from T. J. Word, Guardian, to John P. Irvin dated December 2, 1881, filed for record May 20, 1882, and conveying an undivided one-half interest in the Brooks League, the deed further reciting that the deed was intended to convey the interest owned by Louise Parmley Campbell Word, a minor.

(11) Deed from John P. Irvin and wife to Edward A. Irvin dated May 5, 1882, filed for record March 2, 1883, recorded in Book K, page 249 of the Deed Records of Hardin County, and conveying 4,268 acres of the Brooks League, recited by the deed to be the same land sold and conveyed to John P. Irvin by the heirs of T. J. Word by deeds dated July 20, 1881, and December 2, 1881.

(12) Acknowledgment of Tenancy by Calvin Gore to E. A. Irvin dated October 23, 1883, filed for record October 24, 1883, and covering the Brooks League.

(13) Acknowledgment of Tenancy by H. W. Bush to E. A. Irvin dated October 24, 1883, filed for record October 24, 1883, and covering the Brooks League.

(14) Acknowledgment of Tenancy by S. A. J. Hare to E. A. Irvin dated October 23, 1883, filed for record October 24, 1883, and covering the Brooks League.

(15) Deed from Edward A. Irvin to John P. Irvin dated December 26, 1889, filed for record December 31, 1889, and conveying the same lands conveyed by John P. Irvin and wife to E. A. Irvin by deed dated May 11, 1882, and recorded in Book K, page 249 of the Deed Records of Hardin County, which includes, among other lands, the entire Brooks League except the 160 acres referred to as the Cryer Place.

(16) Acknowledgment of Tenancy by S. A. J. Hare to John P. Irvin, dated July 7, 1890, filed for record July 10, 1890, and covering the Brooks League.

(17) Declaration of Trust by Clarendon Harris, et al., dated October 23, 1889, filed for record December 26, 1891, which instrument creates a Trust Estate known as Texas Pine Land Association.

(18) Deed from John P. Irvin to Clarendon Harris, et al., as Trustee of Texas Pine Land Association, dated December 11, 1891, filed for record April 14, 1892, and conveying 4,268 acres of land, a part of the George W. Brooks League.

(19) Record of Election of Trustees of Texas Pine Land Association dated June 29, 1898, by which it is shown that Thomas L. Nelson, Francis Peabody, Jr., and Noah W. Jordan are Trustees for said Association.

(20) Original Petition of Plaintiff in Cause No. 570 in the District Court of Hardin County styled W. S. Frazier v. Texas Pine Land Association, said petition alleging a suit in trespass to try title for 160 acres of the Brooks League including the residence and improvements of W. S. Frazier and specially pleading title by virtue of the ten-year statute of limitation.

(21) Judgment of the District Court of Hardin County, Texas, in Cause No. 570, styled W. S. Frazier v. Texas Pine Land Association, et al., dated September 26, 1899. By this judgment W. S. Frazier took nothing as to the land sued for by him...