O'Meara v. Williams, 10896.

• Decision Date: 25 January 1940
• Docket Number: No. 10896.,10896.
• Citation: 137 S.W.2d 66
• Parties: O'MEARA v. WILLIAMS et al.
• Court: Texas Court of Appeals

137 S.W.2d 66

O'MEARA v. WILLIAMS et al.

No. 10896.

Court of Civil Appeals of Texas. Galveston.

January 25, 1940.

Rehearing Denied February 29, 1940.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Action in trespass to try title by F. C. Williams and wife against M. P. O'Meara and others to recover title to and possession of certain land and damages for conversion of oil extracted therefrom. From a judgment for plaintiffs against defendant O'Meara and certain other defendants, defendant O'Meara appeals.

Reformed, and affirmed as reformed.

Vinson, Elkins, Weems & Francis, C. E. Bryson, and K. J. Manion, all of Houston, for appellant.

Paul E. Daugherty, Stewart & DeLange, Albert J. DeLange, Emory T. Carl, and Robert P. Beman, Jr., all of Houston, for appellees F. C. Williams and Sophia Williams.

Marlin E. Sandlin and E. J. Fountain, both of Houston (Donald Campbell and L. A. Thompson, both of Tulsa, Okl., of counsel), for appellee Stanolind Oil & Gas Co.

MONTEITH, Chief Justice.

This is an appeal in an action in trespass to try title brought by appellees, Sophia Williams, and her husband, F. C. Williams, against appellant, M. P. O'Meara and appellee, Stanolind Oil & Gas Company, and against defendants, J. C. Kelly, Ralph A. Johnston, and H. H. Hay, who have not perfected an appeal herein, to recover the title to and possession of tract No. 141 of South Houston Gardens No. 6, out of the H. & T. B. Survey No. 6 in Harris County, Texas, and for damages.

Appellees, Sophia Williams and F. C. Williams, alleged title in Sophia Williams to said tract No. 141 by virtue of the 10 years statute of limitation, Art. 5510, Revised Civil Statutes. In the alternative, they pled that if the title to said property was not vested as aforesaid in Sophia Williams, same was vested in F. C. Williams and Sophia Williams by record and limitation, and that the interest of F. C. Williams therein had been conveyed to Sophia Williams. By special plea they sought the reformation of a certain lease contract entered into between them and the Stanolind Oil & Gas Company covering tract No. 142, of South Houston Gardens No. 6, in so far as it affected adjoining tract No. 141, involved in this appeal, and for damages for the alleged conversion of oil claimed by them to have been extracted from said tract No. 141 by defendants.

Each of the parties defendant, with the exception of J. C. Kelly, who disclaimed as to tract No. 141, answered by general demurrer, general denial, and a plea of not guilty. H. H. Hay by special answer alleged that all interest claimed by him had been assigned to the Stanolind Oil & Gas Company.

Appellee, Stanolind Oil & Gas Company, by special answer set up various statutes of limitation and a plea of permanent and valuable improvements, and the payment of taxes.

Only one special issue was submitted to the jury—that of adverse possession under the ten years statute of limitations. The jury answered said special issue in favor of appellees, F. C. Williams and Sophia Williams.

Judgment was rendered in favor of said appellees against J. C. Kelly, M. P. O'Meara, Ralph A. Johnston and H. H. Hay, for title and possession of the land sued for, against M. P. O'Meara for the sum of $7,381.76 and against Ralph A. Johnston for the sum of $26.77.

The court found in its decree that appellee Stanolind Oil & Gas Company had a valid subsisting lease covering a 7/8 working interest on said tract No. 141, that appellees Williams had ratified said lease and that Stanolind Oil & Gas Company had properly preserved in the record all questions in regard to its leasehold estate.

This appeal is by M. P. O'Meara. No errors were assigned either in appellant's brief or in the answering brief of appellees Williams, which was filed in due time, to that portion of the judgment in favor of Stanolind Oil & Gas Company.

Appellees F. C. Williams and Sophia Williams, after the submission of said cause to this court, and after said cause had been set down for oral argument and after the filing by appellee Stanolind Oil & Gas Company of its brief herein, filed a brief containing cross-assignments of error to that portion of said judgment in favor of Stanolind Oil & Gas Company. On motion of Stanolind Oil & Gas Company this second brief was stricken and not considered by the court in this appeal. Duncan et al. v. Scott et al., Tex.Civ.App., 128 S.W.2d 136; Graves et ux. v. Connecticut General Life Ins. Co. et al., Tex.Civ.App., 104 S.W.2d 121; Hinckley-Tandy Leather Co. et al. v. Hazelwood, Tex.Civ.App., 45 S.W.2d 1103.

Sophia Williams, then Sophia Tiechman, contracted to purchase tract No. 142, adjoining tract No. 141 in controversy, in the year 1917. Immediately after the purchase of said tract No. 142, she fenced tracts Nos. 142 and 141 in one enclosure and established a home thereon. She married F. C. Williams in the year 1919, and she and her said husband continued to live thereon up to the date of the trial of this cause.

In 1934 F. C. Williams and Sophia Williams entered into mineral leases with H. H. Hay covering tract 142 and adjoining tract No. 143. Each of said leases contained the following clause: "This lease shall also cover and include all land owned or claimed by lessor adjacent or contiguous to tract particularly described above, whether the same be in said survey or surveys or in adjacent surveys, although not enclosed in the boundaries particularly described above."

H. H. Hay in his answer alleged that he had assigned all interest claimed by him in the land in controversy to Stanolind Oil & Gas Company.

J. C. Kelly acquired title to Tract No. 141 by deed dated November 21, 1914. He and his wife assigned their mineral interest in tract No. 141 to Ralph A. Johnston. By instrument dated September 17, 1934, Ralph A. Johnston assigned all interest claimed by him to Stanolind Oil & Gas Company.

By various instruments F. C. Williams and Sophia Williams admitted the ownership by the Stanolind Oil & Gas Company of a valid subsisting oil and gas lease on said tract No. 141.

Appellant contends that appellees, Williams, having alleged and sought to recover said tract No. 141 as the separate estate of Sophia Williams, are not entitled to a judgment based only on evidence establishing that said property was the community property of Sophia Williams and her husband, F. C. Williams.

Appellees, Williams, pled that Sophia Williams had occupied said premises, using, enjoying and claiming the same as her separate estate and as her homestead for more than ten years prior to the accrual of this action, the commencement of this suit, and the filing of this pleading, during all of which period she had had such land actually enclosed, and that she had acquired said land by virtue of the statute of limitation of ten years.

They further pled: "That in the alternative, if title was not vested as aforesaid in Sophia Williams, same was vested in F. C. Williams and Sophia Williams by record and by limitation as aforesaid, and that any interest of F. C. Williams had heretofore been conveyed to said Sophia Williams."

The jury found on sufficient evidence that Sophia Williams and F. C. Williams had had adverse possession of said tract No. 141, cultivating, using and enjoying the same for a period of ten years prior to February 8, 1935.

The appellees offered in evidence a quitclaim deed from F. C. Williams conveying tract No. 141 to Sophia Williams. Objection to its introduction was sustained when it was shown to have been executed subsequent to the filing of this action.

It is the established law in this state that a plaintiff may plead and pray in the alternative when he is in doubt as to his right to recover upon the cause of action first set up. Turner v. Parker, Tex.Civ.App., 4 S. W.2d 639; Watkins v. Collins, 39 Tex.Civ. App. 350, 87 S.W. 368. The prayer in appellees', Williams', petition in the instant case is framed so as to grant relief under either construction.

As to appellant's contention that there is a fatal inconsistency between the allegations of adverse possession by Sophia Williams and the prayer that both F. C. Williams and Sophia Williams recover judgment for the land, as a matter of law and regardless of the intention of the parties, land possessed and acquired by limitation by either spouse during the marriage is community property; Brown v. Foster Lumber Co., Tex.Civ.App., 178 S.W. 787; Odem v. Leahy, Tex.Civ.App., 264 S.W. 218.

This rule is followed in 23 Tex.Jur., page 137, in which it is said: "It is plain that property acquired by pure limitation then—whether by the husband, the wife, or the community—will belong to the community estate. It is an acquisition after marriage, not by gift, devise, or descent."

Further, it is the established rule in this state that in an action of trespass to try title where two or more plaintiffs allege that they are the joint owners of land and the testimony establishes the fact that one or more of said plaintiffs owns said land and that the defendants have no title thereto, judgment will be rendered in accordance with the rights of the parties as established by the testimony. Art. 7387, Revised Civil Statutes; Anderson v. Anderson, 95 Tex. 367, 67 S.W. 404; Gulf, C. & S. F. Railway v. Anderson, 76 Tex. 244, 252, 13 S.W. 196; Gaston v. Wright, 83 Tex. 282, 18 S.W. 576.

Appellant further contends that after the marriage of F. C. Williams and Sophia Williams, F. C. Williams became the head of the family and that his actions and intent determined the character of the possession in question as to whether or not it was adverse, and that therefore, since he had testified by deposition prior to the trial of this cause that he would have voluntarily surrendered possession of said property to anyone who had shown him that he had title to the property, the limitation claim of F. C. Williams and Sophia Williams to said tract No. 141 falls.

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