Petty v. Griffin

• Decision Date: 25 April 1922
• Docket Number: (No. 758.)
• Citation: 241 S.W. 252
• Parties: PETTY et al. v. GRIFFIN et al.
• Court: Texas Court of Appeals

241 S.W. 252

PETTY et al. v. GRIFFIN et al.

(No. 758.)

Court of Civil Appeals of Texas. Beaumont.

April 25, 1922.

Rehearing Denied May 3, 1922.

Appeal from District Court, Hardin County; J. L. Manry, Judge.

Trespass to try title by J. M. Griffin and others against V. A. Petty and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Smith & Crawford, Oliver J. Todd, and R. E. Masterson, all of Beaumont, for appellants.

Gordon & Parker, of Beaumont, and Coe & Combs, of Kountze, for appellees.

O'QUINN, J.

This is a suit of trespass to try title brought by appellees against appellants to recover title to 160 acres of land, the southwest one-fourth of the Elisha W. Wallis 640-acre survey in Hardin county, Tex. The case was tried before a jury, and judgment for appellees was rendered upon the answers of the jury to such issues; the said issues and answers thereto so far as are necessary to a disposition of the case, being as follows:

(1) "Did Ivy Griffin have peaceable and adverse possession of any portion of the southwest quarter of said Elisha Wallis survey of 640 acres, cultivating, using, or enjoying the same for ten years or more prior to January 1, 1920? Answer `Yes' or `No.'" Answer: "Yes."

(2) "When did such adverse possession and cultivation, use, or enjoyment begin, and when did it end? Give the dates as accurately as you can determine them from the evidence." Answer: "From 1867 or 1868 until 1893."

(3) "Did Ivy Griffin claim 160 acres of said Wallis survey, including his improvements, on the southwest quarter thereof? If so, when did he begin to make such claim and how long did he continuously assert such claim? Give dates as accurately as you can determine them from the evidence, if you find he made such claims." Answer: "From 1875 until deeded to his sons."

(4) "If 160 acres are awarded to plaintiffs out of said Wallis survey including within the boundaries of the 160 acres the former improvements of Ivy Griffin in the southwest quarter of said survey, would it be a fair and equitable location of such 160 acres to run same in the form of a square constituting the southwest quarter of such 640-acre survey? Answer `Yes' or `No.'" Answer: "Yes."

The following special issues were given at the request of appellants, to wit:

(6) "Was any claim made by said James Griffin, Sr., to the title to the land farmed on the southwest quarter of said Wallis survey at any time while it was being farmed by him and his family, if it was so farmed? Answer `Yes' or `No.'" Answer: "No."

(7) "Did R. H. Calhoun go to Martin Williams while the said Williams was in possession of a part of the E. W. Wallis survey of land and have an understanding with the said Williams that Williams was not claiming said land and that said Williams would attend to said survey and look after the timber or trespassers thereon? Answer `Yes' or `No.'" Answer: "No."

It is agreed that appellants have the record title to the land in controversy, subject to appellees' claim of limitation. Appellees pleaded title to the land by 10 years' limitation under their father, Ivy Griffin, by virtue of possession taken, cultivation, and use of same.

The evidence shows that in 1865 James Griffin, Sr., with his family, settled on the Thouvenin survey of land, near the south line of the Wallis survey. The Thouvenin and Wallis surveys adjoin. Ivy Griffin, father of appellees, was a single man and lived with his father, James Griffin, Sr., as did another son, "Crippled Jim." Another son, George Griffin, also lived on the Thouvenin survey near his father. They all lived in the northwest corner of the Thouvenin. George Griffin cleared and fenced about 4 acres in the southwest corner of the Wallis survey near the north line of the Thouvenin and cultivated same for about two years, and then in 1868 sold his improvements on the Wallis survey to Ivy Griffin, who took possession of same, cleared and fenced several acres more, and continuously cultivated same until 1892. In 1892 he planted the land in oats, but in the spring of 1893 the fence burned, and the land was not cultivated any more after that time; but he continued to claim 160 acres where the field was located. Ivy Griffin and his father and brother Jim all worked the field together until about 1875, when the father became unable to work but little. The produce was carried to the home of James Griffin, Sr., the father, and divided; a part being placed in the barn of James Griffin, Sr., and part in the barn of Ivy Griffin, which he either sold or fed to his own stock. Ivy Griffin married in 1879, and moved to the place where his brother George had lived on the Thouvenin survey. Ivy Griffin's father, James Griffin, Sr., was old and feeble and could work but little, and his brother Jim was very badly crippled, and was known as "Crippled Jim." After Ivy Griffin married, his brother "Crippled Jim" lived with him until he (Jim) died. While Ivy was living with his father, he took the lead in looking after things and in making a living for the family.

Ivy Griffin was about 75 years old at the time of the trial herein. Ivy Griffin testified that there was no connection between the field on the Wallis survey and the place where he lived on the Thouvenin survey; that they were not under the same fence, but were some 500 or 600 yards apart, with a baygall between them; that he claimed 160 acres where his field on the Wallis survey was located from the time he bought his brother George's improvements in 1868 to the time he conveyed same to his sons, appellees herein, May 27, 1920; that no one else claimed the land — none of the Griffins other than he (Ivy). Several witnesses corroborated the testimony of Ivy Griffin as to the location of the field on the Wallis survey, its cultivation and that he (Ivy Griffin) claimed 160 acres there. Several witnesses testified that they were well acquainted with the Griffin family; that they had often seen Ivy Griffin, together with his father and brother Jim, working in the field; and that they had always heard the place called "Old Man Jim Griffin's place"; that they never heard Ivy Griffin claim the place until shortly before this suit was filed. However, none of them testified that they ever heard James Griffin, Sr., lay any claim to the land, only heard it called "Old Man Jim Griffin's place."

By various propositions, appellants raise what we deem to be the controlling question in the case, namely: Even if Ivy Griffin was in possession of a portion of the land in controversy, claiming 160 acres adversely to the owners of the record title for more than ten years, that because during some of that time James Griffin, Sr., the father of Ivy Griffin, worked in the fields and had the use and benefit of said fields, concurrently with Ivy Griffin, although James Griffin, Sr., did not at any time make any claim to the land, and was not in any wise in privity with the owners of the record title, still by his joining with Ivy Griffin in the cultivation and use of said field and sharing the proceeds thereof, said joint use and sharing of the produce prevented Ivy Griffin's possession from being exclusive, within the meaning of the law of limitation, so as to constitute adverse possession which would mature title by limitation in Ivy Griffin as against the holder of the record title.

The jury found that Ivy Griffin, father and grantor of appellees, had had peaceable and adverse possession of the land in question, cultivating, using, and enjoying the same, for more than 10 years before the filing of the suit, and that James Griffin, Sr., father of Ivy although concurrently using the land and sharing its produce, did not at any time make any claim to the land. The sufficiency of the evidence to support the jury's finding is not contested, but it is urged that Ivy Griffin being a single man living with his father, and the father and other members of the father's family concurrently...