Niday v. Cochran

• Decision Date: 16 December 1906
• Citation: 93 S.W. 1027
• Parties: NIDAY et al. v. COCHRAN.
• Court: Texas Court of Appeals

93 S.W. 1027

NIDAY et al. v. COCHRAN.

Court of Civil Appeals of Texas.

December 16, 1906.

On Rehearing, March 12, 1906.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by J. B. Cochran against J. E. Niday, guardian ad litem of Alma Mellott, and others. From a judgment for plaintiff, defendants, J. E. Niday, as guardian, and the Reynolds Lumber Company, appeal. Reversed.

J. E. Niday and C. L. Bradley, for appellants. Tharp & Whitehead, for appellee.

GILL, C. J.

This suit was brought on January 16, 1904, by J. B. Cochran, in the form of an action of trespass to try title to recover from Alma and Lillian Mellott the title and possession of lot No. 4 and part of lot No. 11, of block 6, of the Hardcastle addition to the city of Houston. Among other things, plaintiff specially averred in himself title by limitation of three and five years. J. E. Niday having been duly appointed guardian ad litem for the minor defendant, Alma Mellott, answered, pleading not guilty and the 10-year statute of limitation. The Reynolds Lumber Company, which was also made a defendant, pleaded not guilty. Other parties made defendants were dismissed on their disclaimer. The court after hearing the evidence, instructed a verdict in favor of Cochran against Alma Mellott and the lumber company, and from a judgment thereon the minor, through her guardian ad litem, and the lumber company, have appealed.

The facts are as follows: Jesse Shackelford was shown to be common source. His first wife was named Rosa, and by that marriage he had two children, Delia and Tom. Delia is now Mrs. E. B. Sims and is the wife of Frank Sims. Tom died after his father married a second time and subsequent also to the death of his father. Maria Shackelford, the second wife and widow of Jesse Shackelford, is still alive. Jesse acquired the property during his marriage with his first wife, hence the property was the community property of that marriage. Upon the death of the first wife her children, Tom and Delia, inherited an undivided half interest. Upon the death of Jesse Shackelford they inherited the remaining half, subject to the homestead claim of the second wife and a life estate in one-third of her deceased husband's interest. There were no children of the second marriage. Tom died intestate, leaving neither wife nor children surviving him, hence his sister inherited his interest. As between the widow of Jesse Shackelford and his sole surviving child, Mrs. Sims, the title stood in the latter, subject to the former's homestead right and life estate. The property left by Jesse Shackelford in that block consisted of lots 4, 5, and part of lot 11. The surviving widow resided on lot 5, but had all the property in a general inclosure. Only lot 4 and part of lot 11 are in controversy in this suit. Mrs. E. B. Sims, joined by her husband, sold and conveyed to Lillian Mellott lots 4, 5, and 11 by deed dated February 18, 1899. Lillian Mellott conveyed the same property to Alma Mellott by deed dated March 19, 1901. The city of Houston sued Maria Shackelford for taxes on the property for the year 1896, amounting to $25.69, and procured a judgment against her foreclosing a tax lien on the property. Under this judgment the right, title, and interest of Maria Shackelford was sold by the sheriff as under execution, and he duly executed a deed therefor to J. B. Cochran, the purchaser. The date of the sheriff's deed was February 3, 1898, and it was duly placed of record the day of its date. Payment of state and county taxes was shown to have been made by Cochran from that date until the trial. Thereafter the city of Houston sued Maria Shackelford, J. B. Cochran, and Frank Sims and his wife to foreclose a tax lien upon the property for taxes for years prior to 1896. Judgment as prayed for was rendered against the defendants therein. Thereafter the property was sold by the sheriff as under execution, and Cochran became the purchaser; the sheriff's deed to him being dated April 6, 1899. Cochran testified that upon his first purchase at tax sale he went to Maria Shackelford, who was living on lot 5 of the property, the other being under fence in connection therewith, and told her of his purchase. That she turned lots 4 and 11 over to him in this way: "She said: `There they are, take charge of them;' and I said, `I have got them,' and that was all the possession I had." Thereafter he had lots 4 and 11 fenced off from lot 5 by running a cross fence, and in 1902 he put a tenant on the lots.

As appellees in their brief do not claim that they can hold by limitation under Maria Shackelford's possession we do not find it necessary to notice the assignments addressed to that feature of the case. The court also recognized the fact that Maria, the life tenant of an undivided interest, could not, under the facts of this case, hold adversely to the remaindermen of co-tenants for herself or any other, but proceeded on the theory that the first tax deed executed in pursuance of the judgment and foreclosure, in which she was sole defendant, was sufficient, in connection with the other facts, to support limitation of five years. While, as a matter of fact, the tax deed conveyed only the interest of Maria Shackelford, yet the suit was brought by the city on the theory that the property was hers. The lien was foreclosed as against her upon the entire premises. The deed, though using the quitclaim terms of "right, title, and interest," on its face purported to pass the entire property. We are inclined to think, therefore, the court was right in holding that the deed would support the plea. But we think the court was wholly wrong in concluding that the evidence even presented the issue of sufficient possession to support the plea. The proof is undisputed upon the point, and shows that the only possession for the first two years after the date of the first tax deed was the fact that the lots were...