McCain v. Swilley

• Decision Date: 09 February 1962
• Docket Number: No. 3671,3671
• Citation: 354 S.W.2d 588
• Parties: Mrs. Norah McCAIN et al., Appellants, v. W. S. SWILLEY et al., Appellees.
• Court: Texas Court of Appeals

Page 588

354 S.W.2d 588

Mrs. Norah McCAIN et al., Appellants, v. W. S. SWILLEY et al., Appellees.

No. 3671.

Court of Civil Appeals of Texas, Eastland.

Feb. 9, 1962.

Rehearing Denied March 2, 1962.

Able & Graham, P. Harvey, John Randolph and Taylor J. Hughes, Houston, for appellants.

Hamblen & Hamblen, Houston, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellees.

WALTER, Justice.

Appealed from the 125th District Court of Harris County.

This trespass to try title suit was filed by George Grozier, a person of unsound mind, acting by his next friend, R. F. Grozier, against W. S. Swilley. The original parties died. George Grozier died in the Austin State Hospital for the insane. The plaintiffs, appellants herein, claim under the original plaintiff, and the defendants, appellees herein, claim under the original defendants. The property in controversy is an undivided 1/48th interest in Lot number 3 and an undivided 7/24ths interest in Lot 5 of the subdivision of the George Young land in the southwest part of the Victor Blanco grant in Harris County, Texas.

The defendants pleaded a general denial, not guilty and the three, five, ten and twenty-five year statutes of limitation. The only issues submitted to the jury were defendants' issues on limitations. All of defendants' limitation issues were found against them. However, the court rendered judgment for the defendants on their motion for judgment non obstante veredicto.

The parties will be referred to as they were designated in the trial court. The plaintiffs have appealed contending the court erred (1) in granting defendants' motion for judgment, (2) in refusing to admit in evidence the petition in the case of Wagers v. Swilley, 220 S.W.2d 673, and the judgment and opinion of the Court of Civil Appeals in said case, (3) in failing to overrule the third and fourth grounds contained in defendants' motion for judgment, and (4) in concluding that the plaintiffs had failed to prove title to the property in controversy.

One of the controlling question was presented in the defendants' motion for an instructed verdict and is as follows: 'Plaintiff, relying upon record title has wholly failed to show any title out of Lorenzo de Zavalla, Jr., and into Emily Hand, and that plaintiff's chain of title and proof out of Emily Hand is therefore not connected with the title of Lorenzo de Zavalla, Jr., and by reason of this omission to make such proof plaintiff has wholly failed to show record title.' The motion for an instructed verdict was overruled.

It was stipulated that record title to the land in controversy was vested in Lorenzo de Zavalla, Jr., on or about April 30, 1839.

Defendants contend that plaintiffs failed to show, either as a matter of fact or law, that title passed from Zavalla to Hand. They also contend it was a fact issue which was not submitted by the court or requested by the plaintiffs. The defendants contend it was therefore waived under Texas Rules of Civil Procedure 279.

Masterson v. Harrington, Tex.Civ.App., 145 S.W. 626, (Writ Ref.), decided March 7, 1912, is the first case involving the subject matter of the present litigation. In order to understand the basic facts and the background of the present litigation, it is deemed advisable to copy the following portions from the opinion:

'Appellant filed suit in the district court of Harris County against appellees in trespass to try title, seeking to recover certain land out of the Victor Blanco five-league grant in said county.

'In 1835 title to three leagues in the lower part of the Victor Blanco grant was vested in Lorenzo De Zavalla, Jr.; the premises in controversy herein being a part thereof. Appellant claims title by regular chain from De Zavalla, and defendants claim title under numerous duly recorded conveyances originally emanating from Emily Hand. Appellees contend that the premises in controversy were, in fact, conveyed by De Zavalla to Emily Hand by deed conveying 2,000 acres of land. There is no direct evidence of such a deed; but appellees rely upon facts and circumstances to evidence the presumption that such a conveyance was in fact, executed.

'The case was tried before a jury, and the sole question submitted to the jury for their determination was whether or not, from all the facts and circumstances in evidence, there was at some time such a deed executed by De Zavalla to Emily Hand, which issue the jury answered by stating, 'We find that there was a deed made to 2,000 acres of the Victor Blanco grant by Lorenzo De Zavalla, Jr., to Emily Hand,' upon which verdict judgment was accordingly rendered by the court in favor of appellees.

'The gist of the various propositions urged by appellant under the first assignment of error is that the evidence was insufficient to warrant the court in submitting such an issue to the jury and that the evidence is insufficient to support the jury's finding that there was such a deed.

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'The majority of the court is of the opinion that the finding of the jury in support of the presumption of a conveyance to Emily Hand by De Zavalla of the 2,000 acres of land is supported by the long-continued use and possession of the land, as above stated, by the Youngs and those claiming under them, under numerous recorded deeds, accompanied by the payment of taxes by them, and no assertion of claim of title thereto upon part of De Zavalla up until the time of the filing of this suit.'

Wagers v. Swilley, Tex.Civ.App., 220 S.W.2d 673 (Writ Ref. N.R.E.), decided May 5, 1949, is the second case involving the subject matter of the present litigation. The Swilleys were plaintiffs and Wagers was the defendant in this case and we will refer to them as they were designated in the trial court. In addition to pleading trespass to try title in statutory form, plaintiffs also pleaded the 3, 5, 10 and 25 year statutes of limitation. The defendant pleaded not guilty and the 10 year statute of limitation. The Swilleys contended there was a presumption of a deed from Lorenzo de Zavalla, Jr., to Emily Hand and relied on the...