Moore v. Horn

• Decision Date: 21 June 1962
• Docket Number: No. 6132,6132
• Parties: Albert MOORE, Appellant, v. Gertrude HORN et al., Appellees.
• Court: Texas Court of Appeals

Page 947

359 S.W.2d 947

Albert MOORE, Appellant, v. Gertrude HORN et al., Appellees.

No. 6132.

Court of Civil Appeals of Texas, Beaumont.

June 21, 1962.

Rehearing Denied Sept. 12, 1962.

Marcus & Weller, Beaumont, for appellant.

Ernest Sample, Beaumont, for appellees.

STEPHENSON, Justice.

Our opinion of September 7, 1961, is withdrawn and the following substituted in its stead; to which present or amended motions for rehearing may be addressed.

Gertrude Horn, et al., as plaintiffs sued Albert Moore, as defendant in trespass to try title to recover 10 acres of land in the H. P. Savery League in Jefferson County, Texas. The defendant filed a disclaimer to the tract sued for except the northern 5 acres, which he claimed title to under the ten-year statute of limitation. The issues as to title through adverse possession were submitted to the jury and found adversely to the defendant. The trial court entered judgment for plaintiffs. The parties will be referred to herein as they were in the trial court.

The defendant contends there was 'no evidence' to sustain the negative findings of the jury in reference to his limitation claim. The question as to 'no evidence' is a question of law and is to be tested on appeal by considering only the evidence favorable to the verdict and disregarding all other evidence.

The two special issues submitted to the jury inquired first about any period of 10 consecutive years prior to February 9, 1952 and second about any period of 10 consecutive years prior to April 1, 1955. The original petition was filed on the first date and an amended petition on the second date. The jury answered both in the negative.

In reading the record this court has found the following evidence which is favorable to the finding of the jury: (1) There was testimony to the effect that defendant did not have possession of the five acres of land in controversy because the land was not enclosed by a fence. Witnesses testified that there were gaps in the fences in places; (2) there was testimony indicating the defendant did not have continuous possession of the land. Witnesses testified that the plaintiffs' father, Alfred J. Allridge, ran the defendant off of the land. That the defendant was absent from the land in 1928 for 10 months. That the defendant was out of the state from October 28, 1940 until February 9, 1942. That the defendant's house was not located on the 5-acre tract of land in controversy; (3) that the land in controversy was used and occupied by the plaintiffs' father during his lifetime. The evidence showed this land was acquired by plaintiffs' father by deed dated April 19, 1920, and that he died October 31, 1947. That plaintiffs' father, after acquiring the land during his lifetime, used the land to pasture his stock; cows, a mule and a horse. That he cleared a portion of the land and cut timber for charcoal, and also for stakes which he sold. That plaintiffs' father had the land fenced; (4) there is also evidence that defendant's possession was not exclusive, and that others had cattle on this property; (5) one witness testified the adverse possession of defendant began after the death of Alfred J. Allridge. The findings of the jury in answer to the two special issues were supported by this evidence.

Defendant also complains of the failure of the trial court to disregard the answers of the jury and render judgment for defendant because such findings were so against the great weight and preponderance of the evidence as to be clearly wrong. This court has considered all of the evidence in the record, both favorable and unfavorable to the findings of the jury, and hold this point is without merit.

It is the contention of the defendant that there is no proof of record title into the plaintiffs because the counsel for plaintiffs did not state specifically that 'an offer in evidence' was being made at the time some of the instruments were being identified. The statement of facts shows that the attorney for plaintiffs at the outset had his witness, a Deputy County Clerk, begin to read from the records in the County Clerk's office, an instrument into the record verbatim. In the middle of the first instrument the court interrupted the witness to call a conference with the attorneys. It is not shown what was said in the conference, but the reading of the first instrument was discontinued and from that point on the witness was merely asked to give the date of the instrument, the volume and page of recording, the date of recording and the names of the Grantors and Grantees. Even though the counsel for plaintiffs did not specifically say he was offering the instrument in evidence, all parties together with the court acted upon his action as if it amounted to an offer. For example, counsel for defendant would make objections from time to time and that court would rule upon questions of admissibility that would not arise if the instrument was not being offered in evidence. In many instances a full description of the property was not given as the instrument was offered in evidence, but in no instance was an objection made by attorney for defendant upon the ground that the land described in the instrument was not the property involved in this suit. These instruments were not copied into the statement of facts by the court reporter. We must assume, however, that the trial court had all of these instruments in their entirety before it for examination at the time judgment was rendered for the plaintiffs. We can only presume the trial court ruled properly on the basis of the showing recited in the judgment to have been made before it and not brought forward...