Pearson v. Doherty

• Decision Date: 15 March 1944
• Docket Number: No. 8192.,8192.
• Citation: 183 S.W.2d 453
• Parties: PEARSON et al. v. DOHERTY et al.
• Court: Texas Supreme Court

183 S.W.2d 453

PEARSON et al. v. DOHERTY et al.

No. 8192.

Supreme Court of Texas.

March 15, 1944.

Rehearing Denied November 1, 1944.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action in trespass to try title to realty brought by J. A. Jensen and wife against W. J. Doherty and others, wherein defendants by cross-action impleaded plaintiffs and N. W. Pearson and wife. Judgment awarding land in controversy except one acre to plaintiffs and parties impleaded in cross-action was reversed except as to

the one acre by Court of Civil Appeals, Doherty v. Jensen, 174 S.W.2d 77, which rendered judgment in favor of named defendant, and N. W. Pearson and others bring error.

Judgments of District Court and of Court of Civil Appeals affirmed in part and in part reversed and remanded.

Jules Damiani and D. J. Wilson, both of Galveston, for Pearson et al.

Harris & Coltzer, Geo. W. Coltzer, Albert J. DeLange, Frank A. Stamper, and Robert P. Beman, Jr., all of Houston, for Jensen et ux.

Fouts, Amerman & Moore and A. E. Amerman, Jr., all of Houston, and Markwell & Stubbs, of Galveston, for defendants in error.

CRITZ, Justice.

This is an action in trespass to try title to what we will call a tract of 166 acres of land, a part of the A. G. Reynolds League in Galveston and Brazoria Counties, Texas. The suit was originally instituted in the District Court of Galveston County by J. A. Jensen and wife to recover from W. J. Doherty et al. the title and possession of the 166-acre tract. Doherty et al. filed a cross-action, in which they impleaded both Jensen and wife and N.W. Pearson and wife. It is shown that Doherty et al. are the record owners of the land in controversy. Jensen and wife and Pearson and wife answered the cross-action of Doherty et al. by general denial and pleas of not guilty. Also, they pleaded the Ten Year Statute of Limitation, Article 5510, R.C.S. of Texas 1925. For convenience we will hereinafter refer to Doherty et al. as Doherty, to Jensen and wife as Jensen, and to Pearson and wife as Pearson.

The trial in the district court resolved itself into two suits, wherein Pearson and wife sought recovery of approximately 115 acres of the above-mentioned 166-acre tract, and Jensen and wife sought recovery of approximately 50 acres thereof. Trial in the district court, where the case was submitted to a jury on special issues, resulted in a recovery by Pearson of the 115-acre tract, and a recovery by Jensen of the 50-acre tract. Doherty recovered one acre. No complaint is made of the one acre recovery.

As already stated, Doherty is the holder of the record title to all of this land. Pearson claims title to the 115-acre tract by adverse possession, under the Ten Year Statute of Limitation. Jensen claims title to the 50-acre tract by adverse possession, under the same statute. The trial court after a jury verdict on special issues adjudged the 115 acres to Pearson, the 50 acres to Jensen, and the one acre to Doherty. The Court of Civil Appeals affirmed the judgment of the trial court as to the one acre, but otherwise reversed and rendered for Doherty as against both Pearson and Jensen. The judgment of the Court of Civil Appeals awarded the entire 166 acres to Doherty. 174 S.W.2d 77.

In 1907 Jensen acquired 84 acres of land adjoining the land here claimed by him. In 1910 he sold Pearson 23 acres of this 84-acre tract. This 23 acres adjoins the land here claimed by Pearson. About 1909 or 1910 Jensen built a house on his part of the 84-acre tract, and made it his home. Pearson did likewise with the 23 acres he bought from Jensen. In 1910 or 1911 Pearson and Jensen constructed a fence, or fences, so that the 115 acres claimed by Pearson and adjoining his 23 acres were enclosed by the fences built and the fences belonging to others; and the 50 acres claimed by Jensen, and adjoining his 61 acres, were likewise enclosed. Neither Pearson nor Jensen have any character of title to any of this land, unless they have acquired title by the Ten Year Statute of Limitation.

Since this case really involves two separate land claims against Doherty, we shall take up each case separately, first disposing of the Pearson case and then the Jensen case.

Pearson Case.

We deem it expedient to here quote Issues 3 and 15, as pertinent to this opinion:

"Special Issue No. 3.

"Do you find from a preponderance of the evidence that Cross-Defendants N. W. Pearson and wife, have had peaceable, adverse and continuous possession of that part of the land involved in this cause, indicated on the plat introduced on the trial of this cause and designated Exhibit 1, embraced within the letters `H' to `Z-2' to `Z' and back to `H', and more fully described as follows: (Here follows description), using or enjoying the same for a period of 10 years or more after the year 1925 to the filing of Cross-Plaintiffs first amended original answer and cross action on Oct. 9, 1939.

"Answer: `Yes' or `No.'"

"Special Issue No. 15.

"If you have answered Special Issue #3, `Yes,' then answer the following:

"Do you find from a preponderance of the evidence that N. W. Pearson, during said ten-year period, was holding the land described in Special Issue #3 adversely and in hostility against the true owner?

"Answer: `He was' or `He was not.'"

The jury answered Issue No. 3, supra, "Yes," and Issue No. 15 "He was not." As we understand this record, the trial court gave controlling effect to the "Yes" answer to Issue No. 3, and awarded the 115 acres to Pearson under the Ten Year Statute of Limitation. The Court of Civil Appeals gave controlling effect to the "He was not" answer to Issue No. 15, and awarded the 115 acres to Doherty.

The trial court defined "peaceable possession," used in Issue No. 3, in the language of Article 5514 as follows: "* *, you are instructed that by the term `peaceable possession' as used in the issues, is meant such possession as is continuous, and uninterrupted by adverse suit to recover the estate."

The trial court defined the term "adverse possession," used in Issue No. 3, in the language of Article 5515 as follows: "* * by the term `adverse possession' as used in this issue, is meant an actual and visible appropriation of the lands, commenced and continued under a claim of right inconsistent with and hostile to the claim of another."

We will not attempt to detail the other issues submitted or the jury's answers thereto. It is sufficient to say that the several findings of the jury called for a judgment awarding Pearson this 115 acres of land on his plea of title under the Ten Year Statute of Limitation unless it can be said that the jury's answer to Issue No. 15 defeats that right. The trial court gave predominant effect to Issue No. 3 and awarded this land to Pearson; while the Court of Civil Appeals gave predominant effect to Issue No. 15 and awarded it to Doherty. In our opinion both courts entered erroneous judgments.

By its answer to Issue No. 3, considered in the light of the definitions contained in the charge, the jury found that Pearson had had peaceable, adverse and continuous possession of this land, using and enjoying the same by visible appropriation commenced and continued under a claim of right inconsistent and hostile to the claim of another for a period of ten years or more. By such findings, construed in the light of the findings other than the one to Issue No. 15, the jury found a statutory limitation title in Pearson as against "another." Certainly "another" includes the owner and the owner includes Doherty. By its answer to Issue No. 15 the jury contradicted its answer to Issue No. 3 and found that Pearson was not holding in hostility or adversely to Doherty. As regards Doherty he was included in both issues and therefore in both answers. The two answers therefore directly and materially conflict.

Doherty asserts that since there is evidence in this record which tends to show that Pearson was claiming and holding this land adversely to all the world except the owner, or the true owner, and that he was not claiming or holding adversely against the owner, the answers to Issues 3 and 15 do not conflict because the one first mentioned can be applied to all the world except Doherty, the owner, and the one last mentioned can be applied to the owner, Doherty. We are unable to agree to this construction of the jury's verdict. As already shown, the owner is included in both issues and in both answers. As to him the two answers contradict each other. If the owner is not included in Issue No. 3 then it is and was utterly meaningless and superfluous. Certainly if the court had failed to submit Issue No. 15, he could not have found on that issue as the jury did, and thereby have legally entered a judgment in spite of the answer to Issue No. 3.

In regard to the above ruling, we are fully aware of the fact that it is not in harmony with the opinion of the Court of Civil Appeals in Cuniff v. Bernard Corporation, 94 S.W.2d 577, writ refused, and Bennett v. Carey, 99 S.W.2d 1105, but in our opinion both of these opinions as regards the matter under discussion are out of harmony with the decisions of this court as regards conflicts. The rule is that there is no priority of findings, either in degree or importance, and where two findings with respect to a material fact are such that both cannot be true, then neither can stand. Speer's Law of Special Issues p. 560, § 431; 41 Tex.Jur., p. 1226, § 361; City of Panhandle v. Byrd, 130 Tex. 96, 106 S.W.2d 660. "The test in such [a] case is, whether taking the finding alone in the one instance, a judgment...