McCarty v. Johnson

• Decision Date: 20 January 1899
• Citation: 49 S.W. 1098
• Court: Texas Court of Appeals
• Parties: McCARTY et al. v. JOHNSON et al.<SMALL><SUP>1</SUP></SMALL>

Page 1098

49 S.W. 1098

McCARTY et al. v. JOHNSON et al.¹

Court of Civil Appeals of Texas.

January 20, 1899.

Appeal from district court, Harris county; William H. Wilson, Judge.

Action by C. J. McCarty and others against Mrs. O. S. Johnson and others. Judgment for defendants, and plaintiffs appeal. Reversed.

G. H. Pendarvis and Ewing & Ring, for appellants. Fisher, Sears & Sherwood, for appellees.

WILLIAMS, J.

In stating our reasons for reversal of the judgment, we shall not undertake a full discussion of all of the many points urged in the briefs, but upon most of them shall simply state our conclusions. The judgment in favor of appellee Johnson for 160 acres of the 520-acre tract claimed by appellant McCarty was based upon her plea of title under the 10 years statute of limitations, and the questions upon the decision of which the correctness of that judgment depends come naturally first in order.

Appellee, when she entered upon the land in controversy, caused a tract of 160 acres to be surveyed and marked off; and of that she took possession, such as she had, and to it, alone, asserted claim. In her answer she alleged title to this specific tract by limitation of 10 years, and sought judgment for it, but, in the alternative, asked that, if this relief be denied her, she recover 160 acres, to be defined under orders of the court. The court below held that she was not entitled to define the land claimed by her, and instructed the jury that, if they should find the requisite facts to sustain her plea of limitation, they should find for her 160 acres, undefined; and, a verdict in her favor having been returned accordingly, the judgment was rendered, providing for the setting off to her of the land out of the tract sued for by plaintiffs, regardless of her specific claim. In this we think there was error. The error originated in the holding that appellee could not entitle herself, under the 10-years statute, to a specific tract, with defined boundaries, because, as is urged by one of appellants' counsel, the statute does not in terms give her the right to determine the boundaries of her possession. But the answer is that her title to any land must arise from an adverse possession, and that is constituted by "an actual and visible appropriation of the land commenced and continued under a claim," etc. Without such claim there can be no adverse possession, and hence no title. It necessarily follows that a possessor who asserts no claim beyond defined boundaries cannot acquire title beyond them, but if the tract which he claims, and of which he has made an actual and visible appropriation, does not exceed 160 acres, all of the requirements of the statute meet, and his title to such tract becomes complete at the end of 10 years. This is a very different question from that decided in Bering v. Ashley (Tex. Civ. App.) 30 S. W. 838. There the possessor's claim was an indefinite one, upon a larger tract than 160 acres, and the land to which his title matured was not defined by a claim limited by metes and bounds. It often happens that the possessor enters under a claim to a specific tract, defined by a prior survey, not evidenced by any muniment of title, and asserts no claim beyond such survey. In such cases it has never been contended that he acquires more than the tract claimed, though it be less than 160 acres. We are therefore of the opinion that appellee's recovery should have been of the specific tract marked off and claimed by her, and not of an undefined tract, as adjudged. If this were all, it would be by no means clear that appellants, under their assignments of error, would be in an attitude to avail themselves of the error; but objections are made to errors in the judgment which resulted from that which we have just pointed out. As a consequence of it, the judgment authorizes the survey of the whole of the 160 acres to be made out of appellants' land, while it is evident that the 160 acres claimed by appellee conflicts with it to a less extent, and this feature of the judgment is objected to in the assignments of error. The judgment as it stands must therefore be reversed, and we are precluded from rendering judgment for appellee for the specific tract by the fact that she has not obtained a verdict for it, and the further opinion that the evidence, while it may be sufficient to support a finding of the jury in her favor, is not so clear and conclusive as to authorize this court to render judgment without a finding of the jury. Railway Co. v. Strycharski (Tex. Sup.) 37 S. W. 415.

It is strenuously insisted by appellants that the evidence is insufficient to warrant a recovery by appellee of any of the land in controversy. The evidence shows that in 1871 appellee became the owner of a tract of 50 acres adjoining a tract of 1,000 or 1,300 acres in the same league, then owned by parties under whom appellants claim, upon which she made her homestead improvements, and has ever since lived. As early as 1872 she caused 160 acres on the large tract adjoining the 50 acres to be surveyed, and upon it built a house, which she rented and otherwise used. Some of the evidence warrants the conclusion that this house thus possessed by her remained on the 160 acres for more than 10 years, after the expiration of which she moved it upon her 50-acre tract. She also built one barn wholly, and another partly, upon the 160 acres, and has since kept them there, but the evidence does not show when this was done. Four or five years before this suit was brought, she extended her fence across the line of the 50 acres, and inclosed about 7 acres of the 160 acres. From the time when she first had the tract surveyed, she has continuously claimed it, intending to acquire title to it by limitation. For as long as 18 years she cut and stacked hay upon the land. She also planted a grove of trees and placed troughs upon the land, and there fed and watered her stock. Her claim was known to the owner of the larger tract, and there is evidence that he finally acknowledged her title by limitation. The Houston Land & Trust Company subsequently acquired title to the large tract, and, a short while before this action was begun, appellant McCarty bought from that company, out of such tract, the 520 acres in controversy, which includes most, but not all, of the 160 acres claimed by appellee Johnson. These were the leading facts relied on to sustain the plea of limitation, and they were sufficient, in our opinion, to require the court to submit the question to the jury. The building and occupancy of the house upon the land, together with the other facts stated, might properly be held by a jury to have been an actual and visible appropriation of the land, which, if continued for the requisite period, would give title. We thus confine our opinion to the house and other facts just stated, for the reason that it appears that the inclosure had not been upon the land for 10 years, and it is not made to appear how long the barns had been upon it, nor that any of these were upon it when the first house was removed. The cutting of hay and the keeping of food and water for the stock upon the land, and the survey and claim asserted, would not by themselves be sufficient; but they may be considered, in connection with the house, as constituting the visible and notorious appropriation required by the statute.

The decisions of the supreme court in the cases of Porter v. Miller, 76 Tex. 597, 13 S. W. 555, and 14 S. W. 334, and Simpson v. Johnson, 46 S. W. 628, seem to dispose of appellants' contention that appellee could not hold by limitation more than the land actually covered by her improvements, and to render unnecessary a discussion on our part of the contentions advanced in the interesting arguments of counsel. We think those decisions follow the plain language of the statute, and that they do not necessarily conflict with Bracken v. Jones, 63 Tex. 184, and Snow v. Starr, 75 Tex. 418, 12 S. W. 673. The other assignments of error relate to the rulings of the court in the admission and exclusion of evidence.

The court excluded the instrument by which plaintiffs sought to deraign title from John Brown, the original grantee of the league, and this ruling is assigned. The instrument offered was a certified copy from the record of Harris county of what was, in form, an act of sale from Brown to Stephen Richardson and Thomas Davis, dated October 13, 1832, in the town of San Felipe de Austin, before Horatio Chrisman and instrumental and assisting witnesses. In all respects it was in the form usually employed at that date in such transactions, except that neither in the body nor the signature to it does Chrisman assume to act officially, further than may be implied from the word "primero," or "first," immediately following his name in the body, and the fact that the ordinary verbiage of such documents in other respects is employed. Following the instrument in the record were these certificates:

"Republic of Texas, County of Austin. No. 25. The foregoing deed of sale was entered in the recorder's office, and recorded in the Spanish records, Book A, pages 51, 52, and 53, San Felipe de Austin, 22d Jan'y, 1838. I. Benton...