Overstreet v. Houston Oil Co.

• Decision Date: 02 November 1933
• Docket Number: No. 2230.,2230.
• Citation: 64 S.W.2d 354
• Parties: OVERSTREET et al. v. HOUSTON OIL CO. et al.
• Court: Texas Court of Appeals

64 S.W.2d 354

OVERSTREET et al. v. HOUSTON OIL CO. et al.

No. 2230.

Court of Civil Appeals of Texas. Beaumont.

November 2, 1933.

Rehearing Denied November 8, 1933.

Appeal from District Court, Polk County; S. A. McCall, Judge.

Suit by Mrs. M. S. Overstreet and others against the Houston Oil Company and others. From a judgment for defendants, plaintiffs appeal.

Affirmed.

O. S. Parker, of Beaumont, Jas. F. Parker, of Kountze, and J. L. Manry and R. H. Jones, both of Livingston, for appellants.

Williams, Lee, Hill, Sears & Kennerly, of Houston, for appellees.

COMBS, Justice.

This suit is in trespass to try title, and involves 160 acres of land out of I. & G. N. section No. 36 in Polk county, Tex. Appellants, as plaintiffs, filed this suit in the district court of Polk county against appellees, as defendants, claiming title to the land involved under the statute of limitations of ten years. For convenience we will designate the parties as in the trial court.

Plaintiff Mrs. M. S. Overstreet is the surviving widow, and the other plaintiffs are the surviving children and heirs, of Sam Overstreet, deceased, upon whose possession and use of the land they rely to establish their limitation title. Defendants are the record owners of the land.

The trial was to a jury, and at the conclusion of the evidence the court, on motion of the defendants, instructed a verdict in their favor, and judgment was entered thereon, from which the plaintiffs have prosecuted this appeal.

There is no material conflict in the evidence. The claimed limitation period began in 1893, when Sam Overstreet took possession of, and began cultivating, a small field of about 3 to 5 acres on the land in controversy. The testimony is to the effect that Overstreet continued to cultivate the field continuously until about 1904, when he abandoned it, a period of twelve years. The evidence is sufficient, we think, to raise an issue of fact for the jury on the question of limitation, unless the introduction in evidence by defendants of a lease contract covering I. & G. N. section No. 36, executed March 16, 1880, by D. S. D. McNeely, from whom Sam Overstreet acquired his possession, to John S. Kennedy et al., under whom the defendants deraigned their title, had the effect, as a matter of law, of operating an estoppel of plaintiffs' claim of adverse possession and limitation.

The facts pertaining to this question are substantially as follows: I. & G. N. section No. 36, of which the land involved is a part, was patented to I. & G. N. Railway Company March 9, 1878, and the railroad company, by deed dated March 10, 1879, conveyed it to John S. Kennedy, Samuel Thorne, and Walter Phelps. Previously, in 1874, D. S. D. McNeely had settled on an adjoining tract of state land, which was later patented to him, and is referred to in the testimony as the McNeely survey. In 1874, after establishing his home on his own survey, McNeely opened a small field of about 12 acres on the land in controversy, and began cultivating it. He cultivated this field continuously until 1892, when he moved to Lamar county, Tex. The year following McNeely's removal, the land was cultivated by him by a tenant, Early Williford, for one year, and in 1893 McNeely sold his own survey to Sam Overstreet, and, according to the testimony of plaintiffs' witnesses, McNeely at the same time sold his claim, or improvements, on the land in controversy to Overstreet, who took over the possession of the field from the tenant Williford, and thereafter cultivated it continuously each year until about 1904, when he abandoned it. It appears that the possession and cultivation of the field was continuous from the time D. S. D. McNeely began it, about 1874, until it was abandoned in 1904 by Sam Overstreet. About 1884 E. S. Holland, a stepson of D. S. D. McNeely, and who testified as a witness for defendants in this case, cleared up and began cultivating a small field of 4 or 5 acres adjoining that of his stepfather on the land in controversy. He later turned that field over to McNeely, who seems to have cultivated it, along with the other field, until he surrendered his possession to Overstreet in 1893. In the meantime, E. S. Holland acquired another field on I. & G. N. section No. 36 from B. E. Williford in the late 1880's, and cultivated it until about 1902.

Under date of March 16, 1880, D. S. D. McNeely executed a lease contract in favor of Kennedy, Thorne, and Phelps covering I. & G. N. section No. 36. Appellees contend that the execution of this lease by McNeely created the relation of landlord and tenant between him and those under whom defendants claim, and had the effect of estopping, not only McNeely, but also Sam Overstreet, who succeeded to his possession, from establishing title by limitation, since neither a tenant nor one taking possession under him can dispute the landlord's title. Since the effect of the lease is the controlling question in this case, we will set it out in full. The lease is as follows:

"This Indenture made the Sixteenth day of March, 1880, between John S. Kennedy and Samuel Thorne, of the City, County, and State of New York, and William Walter Phelps, of Bergen County, State of New Jersey, Lessors of the first part, acting by their Agent and Attorney in fact, Ira H. Evans, and D. S. D. McNeely of Polk County, Texas,

"Witnesseth: That in consideration of the covenants and agreements herein contained on the part of the party of the second part, to be kept and performed, the said parties of the first part hereby grant, demise and lease unto the said party of the second part Six (640) hundred & forty acres of land, out of Survey No. 36 made by virtue of Certificate No. 3871 issued to the International & Great Northern Rail Road Company by J. J. Gross, Commissioner of the Genl. Land Office on the 24th day of May, 1875. Said Survey is situated in Polk Co. Texas on the waters of Big Sandy Cr. about 24 miles S. E. from Livingston, to include all improvements now held by the said D. S. D. McNeely * * *

"To have and to hold all and singular the above described and demised premises, with the appurtenances, unto the said party of the second part, Lessee herein, from the First day of January, 1880, for the period of twelve (12) months ending on the thirty-first (31) day of December, A. D. 1880, yielding and paying therefor unto the said parties of the first part, Lessors, their successors or assigns the sum of One ($1.00) Dollar the receipt of which is hereby acknowledged * * *

"And the said Lessee hereby covenants and agrees, with and to the said Lessors, that during the said term he will not cut or permit to be cut any timber on the said land in excess of what may be required by him for the uses and purposes of his business, as carried on upon the said land * * * and that he will keep all and singular the said premises in such repair as the same are in at the commencement of said term, or may be put in by the said Lessors during the continuance thereof, reasonable use and wear thereof and damage by fire or other inevitable accident, without the fault, neglect or wrong of said Lessee or his representatives, only excepted; that the said Lessee or others having his estate in the premises will not assign this lease nor underlet the whole or any part of the said premises; nor make or allow to be made any unlawful, improper, or offensive use thereof, nor make any alteration in said premises, during the term aforesaid, without the consent of the said Lessors, or those having their estate in the premises, being first obtained in writing, allowing thereof; and also that it shall be lawful for the said Lessors, or either of them, and for any person duly authorized by them, at all reasonable times to enter into and upon the same, to examine the condition thereof; and further, that the said Lessee and his representatives shall without any further notice or demand of any kind, at the expiration of said term or other determination of this lease, peaceably yield up unto the said Lessors, or those having their estate therein, all and singular the said premises, in as good state and condition, in all respects, as the same are in at the commencement of this lease, reasonable wear, and the use thereof, and damage by fire or other casualties, without the fault, neglect or wrong of the said Lessee excepted. Provided always, and these presents are upon this condition, that if the said Lessee does, or shall neglect punctually to pay the rent, and at the date hereinbefore stipulated, or make any default in the covenants herein...