Moore v. Knight, 1986-6656.

• Decision Date: 03 June 1936
• Docket Number: No. 1986-6656.,1986-6656.
• Citation: 94 S.W.2d 1137
• Parties: MOORE et al. v. KNIGHT et al.
• Court: Texas Supreme Court

Page 1137

94 S.W.2d 1137

MOORE et al. v. KNIGHT et al.

No. 1986-6656.

Commission of Appeals of Texas, Section A.

June 3, 1936.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by Mrs. Dora Knight and another against W. P. Moore and others. Judgment for defendants was affirmed in part and reversed and rendered for plaintiff in part by the Court of Civil Appeals [65 S.W.(2d) 446], and defendants bring error.

Judgment of Court of Civil Appeals set aside in part, and judgment of District Court affirmed.

James Young and Brachfield & Wolfe, all of Henderson, McEntire, James & Clower, of Tyler, J. W. Timmins, Thompson Knight, Baker & Harris, and Sol Goodell, all of Dallas, and Jeff D. Farish, Otis Meredith, R. E. Seagler, Robert F. Higgins, and Claude McCaleb, all of Houston, for plaintiffs in error.

McDonald & Grant, of Longview, and Ocie Speer, of Austin, for defendants in error.

GERMAN, Commissioner.

This case involves the title to an undivided 1/24 interest in a tract of 207.5 acres of land and a tract of 82 acres, and an undivided 1/168 interest in a tract of 280 acres and a tract of 57.5 acres, all situated in Rusk county, Tex. These undivided interests are claimed by Mrs. Dora Knight and Mrs. Mamie Hart, who will be referred to herein as plaintiffs. Adverse claim is asserted by W. P. Moore and a large number of other persons, who will be designated defendants. The controlling question is one of adverse possession. As the facts are to some extent different, it will be necessary to state the facts concerning the 207.5 acres and 82 acres first, and then the facts concerning the two other tracts.

The 207.5 acres was conveyed to Lawrence Day by deed dated November 7, 1873. The 82 acres was conveyed to Lawrence Day by deed dated December 18, 1875. For the purposes of this decision both of these tracts will be regarded as the community property of Lawrence Day and his wife, Georgia Day.

Georgia Day died in 1887, leaving six children who inherited her one-half interest. One was a daughter, Emma, who married D. W. Oppenheimer. She died in 1897, without issue, and one-half of her 1/12 interest passed by descent to her husband, D. W. Oppenheimer. He died November 29, 1910, leaving plaintiffs as his heirs, and they instituted this suit in 1931. Lawrence Day continued to live on the 207.5 acres from the date of the death of Georgia Day until his death in February, 1910. This homestead tract and the 82-acre tract were entirely inclosed and were cultivated and used by Lawrence Day and members of his family until his death. In 1888 he was married a second time. After his death his widow lived upon the 207.5 acres for about eighteen months, and then married J. D. Florey. After her marriage to Florey she moved to Overton, Tex., and was residing there at the time of the trial. After Mrs. Florey left the Day homestead, the 207.5-acre tract and the 82-acre tract were rented to W. P. Moore, and Moore used these lands continuously each and every year for farming and cattle raising, mostly farming, until 1930. During these years he paid one-half of the rent to Mrs. Florey (the surviving widow of Lawrence Day), and the other one-half was distributed among the children and grandchildren of Lawrence Day. No part of the rents was ever paid to plaintiffs. The Day children and grandchildren, through J. D. Florey, paid all taxes on these lands for many years, and the plaintiffs never paid any part of same. The Day heirs sold timber from these lands after the death of Lawrence Day, and it was cut and removed. They kept up the fences and made some improvements on the land. Mrs. Florey testified that she and the Day heirs claimed all of these lands during all of the time from 1910 to the time of the trial, and they did not recognize the claim of plaintiffs. Moore testified that during these years he was holding and claiming these lands for Mrs. Florey and the Day heirs only, and did not recognize any claim of plaintiffs. It was proven by several witnesses that it was commonly known in the community that Moore had charge of these lands and was using and claiming same as tenants of the Day heirs. Mrs. W. P. Moore testified that shortly before Oppenheimer died she had a conversation with him in Hunt county, Tex., at which time she asked him if he had visited the Day family. Oppenheimer's reply was that he had not, and he added, "They don't recognize me and neither do I recognize them." At the time of the trial, Mrs. Hart was 46 years of age and Mrs. Knight was 44 years of age. They had never resided in Rusk county. The land had become valuable because of the discovery of oil just prior to the filing of the suit.

The 280-acre tract and the 57.5-acre tract were prior to 1870 the property of Simeon Florence and his first wife, Frances Florence. In 1870, Frances Florence died, leaving seven children, who inherited her one-half interest in these tracts. One of these children was Georgia Florence, who married Lawrence Day. As shown above, Mrs. Day died in 1887, leaving six children, one of whom married Oppenheimer. Plaintiffs, as heirs of Oppenheimer, inherited a 1/168 interest in these two tracts of land; the descent having been cast upon Georgia Day in 1870, upon Oppenheimer in 1897, and upon themselves in 1910. Simeon Florence disposed of his interest in these lands by will to his children, most of whom died, leaving children, prior to his death in 1909. By the year 1912, these tracts had passed by inheritance to a large number of persons. Some of the Florence children were in actual possession of same and used and cultivated same for many years. During the year 1912, N. C. Guerin, who married Lizzie Florence, a daughter of Simeon and Frances Florence, acquired nine different deeds from the Florence heirs, and early in 1913 acquired another deed from some of these heirs. On December 14, 1907, N. C. Guerin and wife made conveyance to W. P. Moore of an undivided 173/196 interest in these two tracts of land, amounting (as recited in the deed) to 297.8 acres. This deed was filed for record February 22, 1919. It is contended by defendants and not contested by plaintiffs that in arriving at the interest thus acquired by Moore from the Florence heirs the plaintiffs were not regarded as having any interest in these lands. In other words, that the aggregate interest and acreage thus acquired was figured on the basis that plaintiffs did not have any interest as heirs under Simeon and Frances Florence. On October 27, 1917, and on September 12, 1919, W. P. Moore acquired deeds from others of the Florence heirs. He testified that after the acquisition of these deeds he considered that he had purchased all of the 280 acres and 57.5 acres, except an undivided interest of 3¼ acres belonging to the Russ heirs, who were descendants of Simeon and Frances Florence, and that he claimed it all to the exclusion of plaintiffs. He testified, in substance, that prior to the time he bought the 57.5 acres it had been farmed; that he used it for pasture some and farmed it some, and rebuilt the fences and put them in substantial condition, but that the land was already under fence; that from 1917 down to the date of the trial it had been under a substantial fence and had been either farmed or pastured each and every year. That the 280-acre tract had a dwelling house on it at the time he bought it, and was under fence except a small corner of same; that said tract had been used by Mr. Guerin for several years before Guerin bought it in 1912; that after he (Moore)...