Morrison v. O'Hanlon

• Decision Date: 20 March 1918
• Docket Number: (No. 1308.)
• Parties: MORRISON v. O'HANLON.
• Court: Texas Court of Appeals

202 S.W. 97

MORRISON v. O'HANLON.

(No. 1308.)

Court of Civil Appeals of Texas. Amarillo.

March 20, 1918.

Appeal from District Court, Grayson County; C. T. Freeman, Judge.

Suit by F. L. O'Hanlon against W. A. Morrison. From a judgment for plaintiff, defendant appeals. Affirmed.

Cox & Cox and Wood, Jones & Hassell, all of Sherman, for appellant. J. W. Finley, of Sherman, for appellee.

HUFF, C. J.

This is the second appeal of this case, and this time from an instructed verdict. The former appeal is reported in 187 S. W. 692, to which reference is made for a more detailed statement of the case. The record in some particulars of this appeal differs from the former; however, the only question remaining is whether Morrison at the institution of the suit by O'Hanlon had title by limitation, either by the three or ten year statute, to lot 3, in block 41, College Park addition to Sherman, Tex., and whether there is any evidence that would have supported a verdict to this effect. In part, to support the claim of limitation, the appellant relied upon a tax deed from the city of Sherman to J. W. Hollingsworth, who, it may be stated, bought the property and took the deed in his own name for the use and benefit of Morrison, and thereafter made a deed to Morrison for the lot, which deed, however, was never recorded and the evidence in this case shows was lost and a substitute deed executed therefor in 1914. The tax sale was for the taxes for the year 1903 on March 1, 1904. After this year, the year 1905, the land was again sold for the taxes of 1904, and at that sale appellee, O'Hanlon, became the purchaser, but thereafter deeded the land to one of his vendors, which shows in the chain of title, whose interest and that of others he subsequently purchased, placing the fee-simple title to the land in O'Hanlon as shown by the record at the time of his suit. It was practically admitted upon the trial that the tax sale to Hollingsworth in 1904 was made in accordance with law, and that the necessary precedent requirements authorizing such sale had been complied with; and it was also admitted that the sale in 1905, at which O'Hanlon became a purchaser, was likewise valid.

It is manifest under the agreement, if the tax sale in 1904 put the title in Morrison, subject to be redeemed, that the sale for the taxes of 1904, which was made in 1905, conveyed whatever title or color of title Morrison had out of him into O'Hanlon. He was therefore remitted to his claim of title by limitation. On the former appeal Morrison testified he asserted no claim of title until 1904 under his tax deed. On the last trial he testified he claimed title to the lot in 1900 and 1901, and one or two witnesses testified he so claimed to them and asserted that it was his lot. One of the witnesses testified that Morrison told him he could not find the owner of the lot and that he might as well have it as anybody. It is admitted by Morrison that he was trying to find the owner to the lot for some time, from 1898 up until 1901; the testimony not being very definite as to the time. During the time he was looking for the owner he was staking his cow and horse on the lot to graze through the summer. He placed lumber thereon, his mower, wagon, and buggy; in fact, all the evidence of the possession that he ever exercised over the lot were the same before he made any claim of title as they were afterwards. The evidence shows that other people used the lot for grazing purposes as he did, but he says without his permission. He does not appear to have objected unless at one time, and that was through his brother-in-law. The lot was open to the commons, unfenced, and with no improvements on it until about two years before this suit was filed, when he fenced it. Until that time there had been no open, visible assertion of ownership, or such that would give notice that he was asserting title hostile to the true owner, or that he had changed his attitude to the true owner from that which existed when he first began to use the lot. His acts afterwards...