National Lumber & Creosoting Co. v. Maris

• Decision Date: 23 October 1912
• Citation: 151 S.W. 325
• Court: Texas Court of Appeals
• Parties: NATIONAL LUMBER & CREOSOTING CO. v. MARIS.

151 S.W. 325

NATIONAL LUMBER & CREOSOTING CO. v. MARIS.

Court of Civil Appeals of Texas. San Antonio.

October 23, 1912.

Rehearing Denied November 27, 1912.

Error from District Court, Cameron County; John C. Scott, Judge.

Trespass to try title by C. H. Maris, trustee in bankruptcy of the Brownsville Lumber & Manufacturing Company, against the National Lumber & Creosoting Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Allen & Rich, of Brownsville, for plaintiff in error. F. W. Seabury, of Brownsville, for defendant in error.

FLY, J.

Defendant in error, as trustee in bankruptcy for the Brownsville Lumber & Manufacturing Company, instituted an action of trespass to try title to an undivided one-half interest in 10 lots in West Brownsville, Cameron county, Tex., and for partition, against the plaintiff in error herein. Defendant in error specially pleaded his title, in which it was alleged that plaintiff in error claimed the land through a deed from C. H. Mason, Jr., who held the same in trust for defendant in error. The cause was tried by jury and resulted in a verdict in favor of defendant in error, the plaintiff in the court below. No statement of facts has been filed in this court.

In trespass to try title the plaintiff is not required to plead his title, but, if he does plead it, he is confined to proof of that title; and, if his allegations of title are not sufficient to show a good one, a general demurrer should be sustained. Hughes v. Lane, 6 Tex. 289; Pilcher v. Kirk, 55 Tex. 208; Snyder v. Nunn, 66 Tex. 255, 18 S. W. 340; McDonald v. Bank, 74 Tex. 539, 12 S. W. 235; Mayers v. Paxton, 78 Tex. 196, 14 S. W. 568. It has never been held otherwise in this state, and, appellee having specially pleaded his title, his case must stand or fall upon that plea, and he cannot, in order to resist a general demurrer, fall back upon his general action in trespass to try title. This is said in view of defendant in error's contention that the petition, containing the statutory allegations of trespass to try title, is not subject to general demurrer, even if the title specially pleaded is insufficient to maintain the action. The two cases cited are not actions of trespass to try title, and have no bearing on the proposition stated. The case of Staples v. Llano County, 9 Tex. Civ. App. 205, 28 S. W. 569, was an action for debt; the case of Cheeves v. Anders, 87 Tex. 294, 28 S. W. 274, 47 Am. St. Rep. 107, was a suit on an insurance policy. An exception to the rule is where title by limitation is pleaded in addition to the ordinary action of trespass to try title. Mayers v. Paxton, 78 Tex. 196, 14 S. W. 568.

On general demurrer every reasonable intendment must be indulged in favor of the pleading assailed by it, and, if any cause of action or ground of defense is shown by the pleading, the general demurrer should be overruled.

In this case it was alleged that W. H. Mason, Jr., Albert Snyder, and O. K. Mason incorporated their business under the name of the Snyder-Mason Lumber & Manufacturing Company, and afterwards sold to the Brownsville Lumber & Manufacturing Company all of the business of the first-named corporation for $16,000 and the assumption of its debts; that the last-named corporation was a reincorporation of the Snyder-Mason Lumber & Manufacturing Company, with the same stockholders, and occupied the same relation to the land in controversy as did the original lease and option owners, which was the ownership of a certain lease on said land and option to purchase the same from the Brownsville Land & Improvement Company; that the terms of the lease and option were that the said company leased the land to Snyder and Mason for five years on condition that within 30 days from October 1, 1908, it should begin the construction of a planing mill, not to cost less than $5,000, on the land and should complete the same within five months and continue to operate it thereafter, and to put a lumber yard on the land, and that the lessees should have the right to buy the land for $800 at any time after the planing mill and lumber yard had been installed; that afterwards the time for installing the two plants was extended to November 1, 1909; that Snyder and Mason transferred all their rights to the Snyder-Mason Lumber & Manufacturing Company on August 10, 1909, and the same were acquired from that...