Oliver v. West Lumber Co.
| Decision Date | 26 June 1926 |
| Docket Number | (No. 1299.)<SMALL><SUP>*</SUP></SMALL> |
| Citation | 287 S.W. 100 |
| Parties | OLIVER v. WEST LUMBER CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Polk County; J. L. Manry, Judge.
Suit in trespass to try title by the West Lumber Company against Isaiah (Bud) Oliver. Judgment for plaintiff, except as to two small tracts, and defendant appeals. Affirmed.
Collins & Houston, of Dallas, for appellant.
J. A. Platt, of Houston, and Feagin & Feagin, of Livingston, for appellee.
O'QUINN, J.
This was a suit in trespass to try title brought by appellee in the district court of Polk county, Tex., November 7, 1923, against appellant to recover a tract of land known as the George W. Toliver survey of 2,779 acres, less 200 acres in the name of C. R. Miller.
Appellant answered November 20, 1923, by general demurrer, general denial, and plea of not guilty. Later, December 10, 1924, appellant filed an amended answer, consisting of a general demurrer, general denial, plea of not guilty, and also pleaded the statute of ten-year limitation to a specific tract of 160 acres, describing same by metes and bounds.
After the filing of appellant's amended answer setting up title to 160 acres of the land in controversy, describing same by metes and bounds, appellee, December 18, 1924, filed an amended original petition, wherein the suit was for only the specific 160 acres claimed by appellant in his answer, describing same by metes and bounds, as set forth in appellant's amended answer. The case was tried to a jury.
After announcing ready for trial, the parties filed in court the following agreement:
Appellee offered this agreement in evidence and rested. Appellant then offered his proof of limitation. At the conclusion of the evidence both parties moved the court for a peremptory instruction. After discussion of the motions for an instructed verdict, appellant presented his motion for permission to file a trial amendment as follows:
"In the above entitled and numbered cause, after the parties had rested their case, but before the court had instructed the jury, the court having indicated that he believed the evidence was insufficient to support defendant's claim to a specific 160 acres of land, comes now defendant and prays the court for leave to file a trial amendment, pleading that he had made an equitable partition of the land between himself and plaintiff, or that he was entitled to 160 acres, including his improvements, and praying for a partition of the land between himself and plaintiff under the order and direction of the court, and in duty bound will ever pray."
The judgment of the court overruling appellant's motion for permission to file a trial amendment is:
"After argument of law by the respective parties to this suit for an instructed verdict for their respective clients, and after the court had indicated from the bench his conclusions as to the law of the case, the defendant then and there requested the court to grant permission to file a trial amendment; plaintiff objected, and the court sustained the objection, and refused to grant the filing of a trial amendment as coming too late."
The court then charged the jury:
"In this case the defendant, Isaiah (Bud) Oliver, having pleaded limitation to a specific 160 acres of land, and having wholly failed, by the evidence, to show or sustain such pleading, you are charged to find for the plaintiff, West Lumber Company, for all of the land sued for by it, save the two tracts thereof shown by the evidence to be actually inclosed by the defendant, and you will find for the defendant for said two tracts thereof so inclosed by the fences of the defendant."
The jury returned a verdict as directed by the court, and judgment was accordingly rendered. Motion for a new trial was overruled, and appellant brings this appeal.
Appellant's first five propositions assail as error the court's charge instructing the jury that appellant was not entitled to recover the specific 160 acres to which he had pleaded title by the ten-year statute of limitation, and to find for appellee except as to two small tracts actually inclosed by appellant, which they would award to appellant. The court's charge was upon the theory that, while appellant had shown that the portion of the 160 acres in controversy inclosed by him had been in the possession, control, and use of the appellant for more than ten years next preceding the filing of this suit, still the evidence failed to show that appellant had claimed the identical 160 acres described by him in his answer for ten years next preceding the filing of the suit.
The record reflects that in 1895 R. L. (Dick) Murphy owned 100 acres adjoining the land in controversy. In 1896 he cleared, fenced, and cultivated some 15 acres on the Toliver across his line on the south. He built a small house on this 15 acres, and it was used for various purposes. He also crossed his line and cleared, fenced, and cultivated some 5 acres on the Toliver on the east. He claimed 160 acres of the Toliver to include his said improvements. The 160 acres so claimed by him were never designated; he merely claiming same to include his improvements. In 1899 he sold his 100 acres to one C. H. Davidson, and Davidson sold same to appellant, Oliver. At said time Murphy also sold to Oliver his claim to 160 acres on the Toliver no designation of the 160 acres being made, but merely sold his claim, the same to include his improvements (the 15 acres with the house on it and the 5 acres). Oliver took possession, and continued to use the two inclosures. At the time of the sale Murphy did not make Oliver any deed to the 160-acre claim. There was no designation of the 160-acre. In September, 1922, Oliver had the 160 acres, including the improvements, surveyed, and had Murphy execute to him a quitclaim deed to the 160 acres that he described in his answer — the 160 acres here in question. There was no proof that appellant had ever claimed the specific 160 acres described in his deed from Murphy and in his answer prior to having it surveyed in September, 1922. His claim was to 160 acres to include his improvements.
Under this state of the pleadings and the facts, we think the judgment must be affirmed. The law is well settled that, where a claimant under the ten-year statute of limitation, who has been in possession of a portion of a large tract of land, claiming 160 acres thereof without any deed or other muniment of title fixing the boundaries of his claim, or where same are not otherwise definitely fixed, the claimant has the right to acquire title to an undivided 160 acres of such large tract, including his improvements and to have same designated and set apart to him by the court. However, if such occupant claims a specific 160 acres, he must sufficiently describe same in his plea to identify it, and must prove his open and notorious adverse possession and claim for and during ten years prior to the institution of the suit of the identical 160 acres so claimed and described. Bering v. Ashley (Tex. Civ. App.) 30 S. W. 838; L. & T. Lumber Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110; L. & T. Lumber Co. v. Stewart, 61 Tex. Civ. App. 255, 130 S. W. 199; Kirby Lumber Co. v. Conn (Tex. Civ. App.) 222 S. W. 342; Kirby Lumber Co. v. Conn, 114 Tex. 104, 263 S. W. 902. When appellant bought Murphy's claim to 160 acres of the land, there was no particular 160 acres pointed out to him as constituting the claim, nor any definite designation of said 160 acres; the only claim and description being 160 acres to include the improvements. No designation of the 160 acres was made until in September, 1922,...
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Reeves v. Houston Oil Co. of Tex.
...tract which has not been defined upon the ground and which exists as a segregated unit only in his own mind. In Oliver v. West Lumber Co., Tex.Civ.App., 287 S.W. 100, at page 102 this court said: 'However, if such occupant claims a specific 160 acres he must sufficiently describe same in hi......