McMinn v. Brohlin, 6962
| Decision Date | 16 May 1960 |
| Docket Number | No. 6962,6962 |
| Citation | 336 S.W.2d 793 |
| Parties | W. L. McMILL, Appellant, v. Carl BROHLIN et al., Appellees. |
| Court | Texas Court of Appeals |
Neal & Brown, Amarillo, for appellant.
R. L. Templeton, Amarillo, for appellees.
Carl Brohlin and Paul Brohlin, individually, and as executors of the estate of Frida Brohlin, filed suit in the 108th District Court of Potter County, Texas, against W. L. McMinn in trespass to try title seeking the title and possession of the south (6) feet of Lot No. 10 in Block No. 183 of the Glidden and Sanborn Addition to the City of Amarillo, Potter County, Texas. Plaintiffs sought title and possession of said property under the ten-year Statute of Limitation. The defendant filed a plea of not guilty. The case was tried to the court without a jury and after hearing the evidence the trial court entered judgment decreeing that Carl Brohlin and Paul Brohlin recover of the defendant, W. L. McMinn, the title and possession of the south (6) feet of said Lot No. 10. From that judgment W. L. McMinn perfected this appeal.
Appellees seek to recover the south (6) feet of Lot No. 10 by virtue of it being enclosed by a certain fence and having had peaceful and adverse possession of the lands and tenements cultivating, using and enjoying the same for more than ten years before filing this suit. By appellant's first assignment of error it is contended the trial court erred in basing its decision on incompetent testimony. By appellant's sixth assignment of error it is shown appellees failed to deraign title from a common source to the land in controversy. Since we are of the opinion these two points will determine the issues of this case, we will not discuss appellant's other assignments of error.
Appellees made a drawing and introduced it in evidence and had the same marked as Exhibit 1. In introducing this exhibit the appellee, Carl Brohlin, was asked these questions and gave the following answers:
This exhibit shows the fence to be on the north line of Lot 9 and not on Lot 10. Then at page 11 of the statement of facts Mr. Brohlin testified concerning the location of the fence as shown by the Exhibit as follows: 'On the north side of Lot 9, the fence is, on the north side of Lot 9.' Seeing the effect of this answer Mr. Brohlin was then asked: 'Is it on Lot 9 or is it on Lot 10, the fence?' His answer was: 'The fence, they say, is on Lot 10.' (Emphasis ours.) Then Brohlin was asked: 'In other words there is a strip of 6 feet in width that is inside your fence that belongs to Lot 10; that right?' Answer: 'Yes.' This is all the testimony locating the fence on Lot 10. We think this is purely hearsay testimony and is of no force and effect and no showing as to the fence being constructed on Lot 10.
It is stated by the Supreme Court in the case of Permain Oil Company v. Smith et al., 129 Tex. 413, 107 S.W.2d 564, 570, 111 A.L.R. 1152 that: 'In this state a petition limited to the statutory form of trespass to try title always puts in issue both title and possession.' Appellees herein sought both title and possession from the appellant. There is not any showing that the appellant now or at any time was ever in possession or ever owned or claimed...
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Brohlin v. McMinn
...of the property awarded to Plaintiffs.' Appeal from this judgment was perfected by the defendant, and the Court of Civil Appeals, (336 S.W.2d 793), reversed and remanded the case on the grounds that there was no showing in the record that defendant was ever in possession of or ever claimed ......