Mackechney v. Temple Lumber Co.

• Court: Texas Court of Appeals
• Writing for the Court: Brooke
• Citation: Mackechney v. Temple Lumber Co., 197 S.W. 744 (Tex. App. 1917)
• Decision Date: 06 July 1917
• Docket Number: (No. 214.)
• Parties: MACKECHNEY et al. v. TEMPLE LUMBER CO. et al.

197 S.W. 744

MACKECHNEY et al. v. TEMPLE LUMBER CO. et al.

(No. 214.)

Court of Civil Appeals of Texas. Beaumont.

July 6, 1917.

Rehearing Denied October 17, 1917.

Appeal from District Court, Sabine County; A. E. Davis, Judge.

Trespass to try title by Mrs. M. E. Mackechney and others against the Temple Lumber Company and others. Judgment for defendants, and plaintiffs appeal. Reversed, and judgment rendered.

Oliver J. Todd, of Beaumont, for appellants. Minor & Minor, of Beaumont, for appellees.

BROOKE, J.

This was an action in trespass to try title brought by the plaintiffs for the recovery of the A. W. Canfield headright survey in Sabine county. The plaintiffs pleaded the statutory allegations, and specially pleaded title in themselves under 3, 5, and 10 years' statutes of limitation, and specially claiming under the 10-year statute under memorandum of title describing the survey, and duly recorded in Sabine county.

Defendants Lutcher-Moore Lumber Company, a corporation, Mrs. Francis J. Lutcher, individually and as executrix of the estate of H. J. Lutcher, deceased, E. W. Brown, and W. H. Stark demurred generally, filing a general denial, pleaded not guilty, and specially denied the facts alleged in each of the paragraphs of plaintiffs' petition, and also pleaded by way of cross-action against M. A. Watson for the sum of $19,602 and interest alleged to have been incurred upon his warrant. Defendant Temple Lumber Company demurred generally, filing general denial, pleaded not guilty, denied specially the allegations of the several paragraphs of the petition, and pleaded by way of cross-action against George C. Greer, F. D. Minor, and W. E. Miller for $6,250 alleged to have been incurred by them by reason of their warranty. George C. Greer, F. D. Minor, and W. E. Miller filed an answer, adopting the allegation of Temple Lumber Company.

The cause was submitted to the jury on special issues, and the jury found that the plaintiffs had held possession of the land described in plaintiffs' petition, cultivating, using, and enjoying the same for more than 10 consecutive years before the institution of the suit, and that said possession had been held from 1873 to 1904. The trial court rendered judgment upon the verdict of the jury for plaintiffs for 160 acres to include the improvements so shown and found to have been occupied, and for defendants for the balance of the survey, to which judgment the plaintiffs excepted, on the ground that they were entitled to recover all the property under memorandum of title duly recorded, and by reason of their prior possession of the survey, and ought not be limited to 160 acres, from which judgment they have regularly appealed to this court.

The charge of the court was as follows:

"Gentlemen of the jury, this is an action in trespass to try title brought by Mrs. M. E. Mackechney et al. v. Temple Lumber Company et al. to recover the title and possession of the A. W. Canfield survey in Sabine county.

"The only question of facts submitted for your consideration are relative to adverse possession or limitation upon said property. In order to determine these questions, it will be necessary for the court to instruct you in the proper definition of some of the terms contained in the following questions:

"You are instructed that `peaceable possession' as hereinafter submitted be such as is continuous and not interrupted by adverse suits to recover the estate.

"You are instructed that `adverse possession' as is hereinafter used is defined to be an actual and visible appropriation of the lands commenced and continued under the claim of right, inconsistent with and hostile to the claim of another.

"You are instructed that under the law peaceable and adverse possession need not be continued in the same person, but when held by different persons successively, there must be a privity of estate between them.

"Privity of estate means that the succeeding persons shall hold in the same right and through or under the preceding person.

"Bearing in mind the foregoing definitions, you will make your answer to the following interrogatories:

"First. You are asked whether or not plaintiffs have shown by a preponderance of the evidence that Gilbert Mackechney, John Mackechney, Mrs. M. E. Mackechney, and her heirs, or any or all of them, held peaceable and adverse possession of the land in controversy with tenants, agents, or representatives upon the ground, cultivating, using, or enjoying said property for 10 consecutive years prior to the institution of this suit; you will answer this question in `Yes' or `No' as you find the facts to be.

"Second. If you answer the first question in the affirmative, then you will say by your verdict during what years such possession was held.

"You are instructed that the burden of proof is on the plaintiffs to make out their case by a preponderance of the testimony.

"You are the sole and exclusive judges of the credibility of the witnesses, and of the weight to be given to their testimony, but the law of the case you will take from this charge, and be governed thereby."

The jury returned the following answers to the questions submitted to them by the court:

"We the jury answer interrogatory 1, `Yes' and interrogatory 2, `Such possession was held beginning in 1873 and up to 1904.'"

Plaintiffs introduced in evidence record of the original grant from the Mexican government to A. W. Canfield, conveying to him the land in controversy in this suit. They also introduced in evidence a tax deed from William Mason, assessor and collector of taxes, to Gilbert Mackechney, which is shown on page 100 of the statement of facts to be as follows:

"State of Texas, County of Sabine. Whereas by assessment made in conformity with law there was due and owing to the state of Texas and county of Sabine from Aurelia Russell the sum of twelve dollars assessed as taxes for the year A. D. 1848 and 1849, upon the taxable property of the said Aurelia Russell and whereas the said Aurelia Russell has failed and refused to pay the same as required by law: Be it known that I, William Mason, collector and assessor of taxes for Sabine county did on the 10th day of November, A. D. 1849, by virtue of my tax list levy upon the following described land and property of the said Aurelia Russell, to wit: Four thousand acres of land lying and being in Sabine county, on the Sabine river and known as the grant originally made to A. W. Canfield and having given notice of the time and place of selling said land and property in the time and in the manner required by law, did at the courthouse door in Sabine county on the 13th day of December A. D. 1849, offer the same for public sale at public auction as the law directs and there being no person present who would bid said sum for any less quantity of land and property than the whole same was knocked off to Gilbert Mackechney, he being the only bidder therefor, for the sum of twelve dollars, it being the amount of taxes due thereon and two dollars and fifty cents costs, making in all the sum of fourteen dollars and fifty cents, and the said Gilbert Mackechney having paid said sum to me. In consideration thereof have this day entered satisfaction of said indebtedness on my tax lists, do hereby grant, alienate and convey unto the said Gilbert Mackechney, his heirs and assigns forever, all the right title and interest that the said Aurelia Russell or any person unknown claiming the same had in and to the said land and property at the time of the levy and sale aforesaid. To have and to hold the said land and property to him the said Gilbert Mackechney his heirs and assigns forever free from the claim or claims of all persons whatsoever.

"Given under my hand and seal this 13th day of December A. D. 1849. Wm. Mason, Assessor and Collector of Taxes for Sabine County, State of Texas. In presence of R. K. Goodhoe, William B. Frazier."

This deed was objected to as a muniment of title for numerous reasons, and was offered and received in evidence only as a deed under the 5-year statute, and only as a memorandum under the 10-year statute of limitation.

The testimony of various witnesses, for the purpose of proving their long claim and adverse possession of the property, as well as the recognition of the claim in the community, was heard, and was conclusive of the fact, as found by the jury, with reference to limitation and the time thereof.

It was agreed by all parties that the actual acreage within the field notes of the A. W. Canfield survey is more than 5,500 acres.

It was shown by the plaintiff by the testimony of W. F. Goodrich that there is but one A. W. Canfield survey in Sabine county, and this is an original grant, and is on the Sabine river; that this grant contained about 5,500 acres.

The defendants offered in evidence a deed from A. W. Canfield to William Clark, acknowledged October 13, 1836. They also offered a deed from A. I. Simpson and others to M. A. Watson, conveying the A. W. Canfield league for $1,000 consideration, which deed was acknowledged on July 4, 1899, and recorded in volume L, p. 295, Deed Records of Sabine County; deed from A. I. Simpson et al. to M. A. Watson, which seems to have been reacknowledged; acknowledged by some that did not acknowledge before, recorded in volume L, p. 444, Deed Records of Sabine County, filed July 31, 1899, and acknowledged on 24th day of June, 1899.

A deed was offered from Nora Smith et al. to M. A. Watson, consideration being $66.65, conveying their interest in the Canfield league, dated July 24, 1899, filed for record August 9, 1899, recorded in volume L, p. 300.

Deed was offered from Maggie McClure et al. to M. A. Watson, conveying the interest of grantors in the Canfield league, dated August 2, 1899, filed and recorded August 11, 1899.

Deed was offered from C. A. Russell et al. to M. A. Watson, consideration $100, conveying their interest in the Canfield league, dated September 20, 1899...