Park v. Sweeten

• Decision Date: 23 June 1954
• Docket Number: No. 12666,12666
• Citation: 270 S.W.2d 687
• Court: Texas Court of Appeals
• Parties: J. F. PARK, Appellant, v. J. R. SWEETEN et ux., Appellees.

Page 687

270 S.W.2d 687

J. F. PARK, Appellant, v. J. R. SWEETEN et ux., Appellees.

No. 12666.

Court of Civil Appeals of Texas, San Antonio.

June 23, 1954.

Rehearing Denied Sept. 8, 1954.

Robert A. Sone, Corpus Christi, L. Hamilton Lowe, Austin, for appellant.

C. H. Gilmer, Rocksprings, Looney, Clark, Moorhead, Charles D. Matthews, Austin, for appellees.

NORVELL, Justice.

The controlling question to be determined upon this appeal is whether or not one holding over after a consent judgment rendered against him is to be considered as a tenant at sufference of the person in whom the title to the real property is vested by the judgment. ¹ In the present action the question arises in this way. W. O. Hutcherson and his wife, Mrs. A. J. Hutcherson, were the owners of 160 acres of land described as the West one-quarter of Survey No. 22, Block No. Three, Original Grantee, T. W. N. G. Ry. Co., situated in Real County, Texas. In 1913 they entered into an agreement with one of their sons, I. I. Hutcherson, whereby, in consideration of his promise to take care of them the balance of their lives, they agreed to convey to him certain property including the West quarter of said Survey No. 22. Evidently the conveyance was made and the parties continued to live upon the premises until the death of W. O. Hutcherson, which was followed by that of I. I. Hutcherson in May of 1931. Approximately eleven months before his death, I. I. Hutcherson married Gladys Taylor, who was then about eighteen years of age. She afterwards married John R. Sweeten and they are the appellees upon this appeal. In 1932, Mrs. A. J. Hutcherson and others brought suit against John R. Sweeten and Gladys Sweeten, who were then in possession of the premises, seeking to recover title thereto by reason of the death of I. I. Hutcherson, and his consequent inability to provide and care for Mrs. A. J. Hutcherson until her death. This suit was settled by an agreed judgment whereby it was decreed that the fee simple title to the 160 acres of land be vested in Mrs. A. J. Hutcherson. Gladys Sweeten, as the heir of I. I. Hutcherson, recovered certain interests in property not involved in this lawsuit.

This judgment was rendered on May 30, 1934, and on June 21st of the same year Mrs. A. J. Hutcherson conveyed the property to her children, T. B. Hutcherson, B. K. Hutcherson and Mrs. M. S. Manor. In 1938, B. K. Hutcherson, Mrs. M. S. Manor and the heirs of T. B. Hutcherson conveyed the property to Lon Felts, who in turn conveyed to appellant, J. F. Park, in 1947. Park filed this suit on December 23, 1947. The Sweetens were in possession of the premises at and prior to May 30, 1934, the day of the entry of the consent judgment vesting title in Mrs. A. J. Hutcherson and remained in such possession until the date the suit was filed. They set up the ten-year statute, Article 5510, Vernon's Ann.Civ.Stats., as a defense and judgment was rendered in their favor upon two jury findings.

The first issue simply inquired if the Sweetens had held adverse possession of the premises for any consecutive ten year period between May 30, 1934, and December 23, 1947. This issue was answered favorably to the Sweetens and unless it can be said that after the rendition of the judgment mentioned the Sweetens held as permissive tenants of Mrs. A. J. Hutcherson, the judgment should undoubtedly be affirmed.

By the second issue, it was assumed that the Sweetens were permissive tenants of Mrs. A. J. Hutcherson immediately after the rendition of judgment and the court attempted to submit the theory that the Sweetens had repudiated such tenancy and that thereafter their possession was of such unequivocal notoriety that appellant would be presumed to have notice of such adverse claim and possession. Appellant strongly urges a number of objections to the wording of this issue and the failure to give certain requested explanatory instructions. However, under our view of the case, it is unnecessary to discuss these contentions in detail.

In our opinion, the judgment cannot be sustained by the jury's answer to the second issue because in legal contemplation there is 'no evidence' supporting the finding. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059. It was not contended that appellees gave actual notice of a repudiation of tenancy to Mrs. A. J. Hutcherson or to her children, who were he holders of the record title from the date of the judgment until the conveyance to Lon Felts in 1938. As suit was filed on December 23, 1947, repudiation and notorious acts evidencing such repudiation must have taken place between May 30, 1934, and December 23, 1937, a period of approximately three years and seven months after the date of the judgment. When we limit our consideration to this period, it is found that the possession of appellees was of substantially the same nature and kind as that maintained by them prior to the rendition of the judgment. Under ordinary circumstances, it would be sufficient to support a finding of adverse possession under the statute, but it is insufficient to show a repudiation of tenancy by acts of unequivocal notoriety. The cases sustaining repudiation of tenancy by acts of unequivocal notoriety as distinguished from actual notice of repudiation, generally rely upon long continued possession and user coupled with non-claimer on the part of the true owner. For instance, it may be that the evidence in this case would fulfill these requirements if the date of December 23 of the year 1945 were taken, but it is not sufficient to show the requisite quality of possession at the time of the crucial date of this lawsuit, that is, December 23, 1937, ten years prior to the filing of appellant's petition. We have had occasion to consider at some length the position of one originally holding as a permissive tenant in connection with the real property statute of limitations. Brown v. Bickford, Tex.Civ.App., 237 S.W.2d 763. Under the rule, as laid down in the case cited, and the authorities therein referred to, it appears that the evidence is insufficient as a matter of law to sustain the jury's finding, and we so hold.

Appellees advance an alternative theory of recovery which is also predicated upon the jury's answer to the second issue. As shown by the statement heretofore made, the property involved was conveyed by Mrs. A. J. Hutcherson to her children shortly after the judgment of May 30, 1934, was rendered and by them to another party some four years later. It is urged that these subsequent holders were charged with knowledge of the fact that the Sweetens were holding adversely to the record title. It is a rule of general application that a purchaser is charged with notice of the rights of one in actual possession of property. Likewise, it will be presumed, in the absence of a proper showing to the contrary, that one who enters as a permissive tenant continues to hold as such. The second jury issue assumes that at Sweetens by holding over after the judgment rendered against them were holding as tenants of the prevailing party in the judgment, Mrs. A. J. Hutcherson. This being true, the purchasers or successors in title of Mrs. Hutcherson would not be charged with notice that a repudiation of such tenancy had taken place. The burden still remained upon the erstwhile permissive tenant to show a repudiation of such tenancy and not upon the purchaser to show that such repudiation had not taken place. The situation of one holding over after the entry of judgment against him, if the same gives rise to a tenancy of sufferance, is similar to a holding over after the execution of a deed. In Texas Jurisprudence, it is stated with the citation of numerous authorities that, 'In case of a resale by the purchaser who acquired the property under a deed purporting to convey to him the title of the vendor, the mere fact that the vendor is still in possession affords no notice to the subsequent purchaser of any right or title remaining in him.' 43 Tex.Jur. 664, Vendor & Purchaser, § 391.

So far, we have considered the case in connection with the second issue submitted to the jury, which assumes that the Sweetens were permissive tenants of Mrs. A. J. Hutcherson. We now examine this assumption. Appellees strongly urge that there is no sound basis for saying that the Sweetens ever were the permissive tenants of Mrs. A. J. Hutcherson.

It appears that there is a conflict of decisions upon the point at issue and the authorities must be examined in some detail. We may for discussion purposes recognize three categories of factual situation and examine each to determine if there be in principle a valid distinction between or among them, viz.: (1) the grantor retains possession after the execution of a deed, (2) the losing party in an adversary suit retains possession after judgment rendered against him, and (3) a party who has consented to a judgment divesting him of title nevertheless retains possession.

As to the first case or situation mentioned, it is recognized as the majority rule in the encyclopedias and by the text writers that when one remains in possession of property after the execution of a deed thereto, he is under a burden to show that thereafter his use and occupation of the land was inconsistent with and hostile to the claims of the grantee. The grantor is regarded as a tenant at sufferance of the grantee and his possession subservient to the title of the grantee, and he must show notice of repudiation of the presumed relationship. 2 C.J.S., Adverse Possession, § 95, p. 652; 1 Am.Jur. 818, Adverse Possession, § 47; 2 Powell on Real Property 392, § 259; 3 American Law of Property 791, § 15.6; 5 Thompson on Real Property 459, § 2648; 4 Tiffany, Law of...