Knox v. Craven

• Decision Date: 01 May 1952
• Docket Number: No. 12436,12436
• Citation: 248 S.W.2d 955
• Parties: KNOX et al. v. CRAVEN et al.
• Court: Texas Court of Appeals

Page 955

248 S.W.2d 955

KNOX et al. v. CRAVEN et al.

No. 12436.

Court of Civil Appeals of Texas, Galveston.

May 1, 1952.

Rehearing Denied May 11, 1952.

Kennedy & Granberry and F. P. Granberry, all of Crockett, for relators.

W. D. Julian, Jr., of Crockett, for respondents.

CODY, Justice.

By this original proceeding S. R. Knox et al., relators, seek by mandamus to render and enter mandamus to require one of the respondents, to render and enter the judgment prayed for in relators' motion for summary judgment which was filed February 13, 1952, in Cause No. 8033 on the docket of the District Court of Houston County, styled S. R. Knox et al. v. Sarah Craven, et vir.

The aforestyled suit is an action in trespass-to-try title involving some 190 acres of land in Houston County. One of the grounds urged for recovery therein by relators is the five year statute of limitations. Respondents answer in said action consists merely of a general denial and plea of not guilty.-It is sufficient to say of relators' pleadings in the aforestyled suit that they are sufficient to put in issue relators' right to recover under the said five year statute of limitations. Furthermore, there is no contention made by respondents herein but that relators' motion for summary judgment was sufficient as to form in all respects. Attached to said motion were: (1) A General Warranty Deed to the land in question under which relators assert their limitation claim of five years, and attached to said deed was a proper certificate of the county clerk of Houston County showing the same to have been duly filed for record January 22, 1943, and to have been duly recorded in Book 214 of the Deed Records of said county, (2) a proper official certificate showing the payment of all ad valorem taxes on said land before they became delinquent for the years 1943, 1944, 1945, 1946, 1947, 1948, 1949, and 1950, (3) the chain of title under which relators claim beginning with the aforesaid deed of 1943, (4) the affidavit of one Ed Arnold stating in substance that he was familiar with the land described in aforesaid deed of 1943 and that affiant has resided in the vicinity of said land for his entire life and has known the land for over forty years. Affiant further swore that immediately following the delivery of the aforesaid deed of 1943 a Mrs. Hattie Sanders resided in a dwelling house on a portion of said land and executed an acknowledgment of tenancy and remained upon aforesaid land 'until June or July, 1944, when at the request of said grantees (in the aforesaid deed of 1943) she vacated such premises and such residence was removed therefrom.' Affiant further swore as to the written acknowledgment of tenancy executed between the owners of the land and one Leo Knox whereby Leo Knox went into possession of the land, except the portion occupied by Mrs. Hattie Sanders, and the affidavit further states that Leo Knox put upon said land certain fences so as to enclose all of the land in question along with the tract of land belonging to said Leo Knox and that said fence was a 3-strand barbed wire fence 'sufficient to retain cattle grazing therein and to turn cattle grazing outside thereof which might otherwise stray thereon. The said Leo Knox immediately placed his cattle within such enclosure and grazed his cattle thereon each and every day until about the 15th day of October, 1950, when he surrendered possession thereof to S. R. Knox.' Affiant further swore that the fences had been kept in cattle-proof condition at all times, and that the land was only suitable for grazing purposes, all other uses would have been unprofitable. Affiant further swore that the claims of relators 'have been open and notorious and wellknown to the public in general and the use and possession has been open, obvious and notorious and known to the public and has not been disturbed since the day of such January 1943 deed. * * *' Endorsed on aforesaid affidavit was a statement made by one Clarence Thompson wherein he swore that the facts stated in the foregoing affidavit were true.

In response to said motion for summary judgment the respondents Craven answered that the affidavit, purporting to show that relators had acquired title under the five year statute of limitation, is a mere skeleton showing of compliance with the requirements of the five year statute of limitation, i. e. that said affidavit is in general terms and sets forth conclusions and that in said affidavit it does not appear how many cattle were kept upon the land or when said cattle were placed...