Philadelphia Trust Co. v. Johnson

• Decision Date: 10 December 1923
• Docket Number: (No. 1005.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 257 S.W. 280
• Parties: PHILADELPHIA TRUST CO. v. JOHNSON et al.
• Court: Texas Court of Appeals

257 S.W. 280

PHILADELPHIA TRUST CO. v. JOHNSON et al.

(No. 1005.)^*

Court of Civil Appeals of Texas. Beaumont.

December 10, 1923.

Rehearing Denied December 19, 1923.

Appeal from District Court, Jefferson County; W. H. Davidson, Judge.

Action by Mrs. Elizabeth C. Johnson and others against the Philadelphia Trust Company, executor of the estate of Chas. O. Baird, deceased. Judgment for plaintiffs, and defendant appeals. Affirmed.

C. A. Lord, of Beaumont, for appellant.

M. S. Duffie, E. E. Easterling and J. H. Rachford, all of Beaumont, for appellees.

O'QUINN, J.

This suit was brought by appellees, as plaintiffs, against the defendant, Philadelphia Trust Company, a corporation, with its domicile in the city of Philadelphia, Pa., as executor of the estate of Chas. O. Baird, deceased, in trespass to try title to 735 acres of land, a portion of the Thomas F. McKinney league in Jefferson county, Tex., alleging that the defendant, on January 21, 1921, unlawfully entered upon said land, and ejected appellees therefrom. Appellees also claimed the land by the statute of 10 years' limitation.

The defendant answered by general denial, plea of not guilty, and specially pleaded the statutes of limitation of 3, 5, and 10 years.

The case was tried before a jury, upon special issues relating solely to appellees' plea of limitation, which were answered in favor of appellees for a portion of the land claimed, describing it by metes and bounds, as follows:

"Beginning at river 20 feet east of double Magnolia, thence south 1,200 feet, thence east 1,164 feet, thence north to river 32 feet west of sand bank, thence up river to starting point."

Upon which answers judgment was rendered in favor of appellees for said portion. Motion for new trial being overruled, defendant appealed.

Appellant's first proposition complains of fundamental error, in that the suit was against the executor of the estate of a decedent, involving the title to real estate, and the heirs of the decedent were not made parties to the suit; that they were necessary parties defendant, and that without such parties defendant no valid judgment could be rendered.

Article 1837, Vernon's Sayles' Civil Statutes, provides:

"In every suit against the estate of a decedent involving the title to real estate, the executor or administrator, if any, and the heirs shall be made parties defendant."

In the trial of the case, the parties made the following agreement:

"It is agreed by the parties that Chas. O. Baird died on June 17, 1918, and that whatever rights, titles, or claims he had or held to the land in controversy had passed to and rests in the defendant, Philadelphia Trust Company, as the executor of the estate of Chas. O. Baird, which is the defendant in the suit."

In view of the above agreement, we think that appellant's proposition should be overruled, it appearing by said agreement that appellant is the executor of the estate of C. O. Baird, and as it could act thus only by the provisions of a will duly executed by the said C. O. Baird, and the agreement showing that all the title of the said C. O. Baird in and to the land in controversy, by virtue of said executorship, had passed to and rested in appellant, it is thought that the correct interpretation is that the devisee, appellant, and not the heirs, should be made party. In such case the heirs have no interest to be affected. Lufkin v. City of Galveston, 73 Tex. 341, 11 S. W. 340. Moreover, this is a suit in trespass to try title, in which the defendant, an executor, pleaded that it was in possession of the premises in question, and claimed the land by limitation, and prayed for affirmative relief, asking that its title be quieted, and for judgment removing the cloud from its title, arising by the claim to said premises made and asserted by the plaintiffs. This was in the nature of, and, in effect, a suit in cross-action by the executor for title to the land, and under article 1836, Vernon's Sayles' Civil Statutes, the judgment is conclusive, as much so as if C. O. Baird himself had been the defendant, and the same had been rendered against him.

Appellant's second and third propositions assert that the judgment is erroneous, because the evidence fails to show that plaintiffs had and held possession of any part of the land in question under a claim of right for a period of 10 successive years — in other words, that the evidence does not support a judgment for title to any portion of the land by the 10-year statute of limitation.

The undisputed evidence shows that John T. Johnson, husband of Mrs. Elizabeth C. Johnson, and father of Mrs. Brown and Mrs. Tyner, plaintiffs, with his family, in 1856, took possession of the land in question under a claim of right, built a 6-room dwelling house, and some outhouses on it, and erected a very substantial cypress fence, inclosing the portion awarded plaintiffs, and planted an orchard of figs, peaches, and plums, and lived in said dwelling house, and cultivated, used, and enjoyed the inclosed premises up to 1866, when he moved to Orange, Tex., for the purpose of placing his children in school, and when he thus removed he rented the premises to one William Block, who took possession, lived in said house, and cultivated the inclosed land until 1869; that in 1868 Johnson died, and his wife and children returned to and took possession of the premises in the beginning of 1869, and lived in the house and cultivated the land inclosed until some time in 1872, when Mrs. Johnson moved to Montgomery county, Tex., where some of her relatives lived. Thus far there is little or no dispute as to the facts. It is in evidence that when Mrs. Johnson left the place in 1872, she placed same in charge of one Samuel Remley, who resided within a few feet of her dwelling house, and who had once been a partner in the mill business with her husband, John T. Johnson, and that Remley took possession of the inclosed premises, and held same for her, individually and by tenants and employés, up to and until 1880. Appellant strongly insists that the evidence does not support the verdict and finding and judgment that Remley was placed in charge of the land as the agent and representative of Mrs. Johnson. Mrs. Brown testified:

"When you ask me where my mother went in 1872, well, she left the house furnished, and left it in the care of Mr. Remley; shut up the house, and went to Montgomery county. She went there because all her relatives were there — all that was left — her brothers and all died, but there was uncles and aunts and cousins up there, and she wanted to go back among the other people. I don't know what became of the house or the furniture. I don't know anything about it. I know that in 1872 she turned the place over to Mr. Samuel Remley.

"I don't know anything about it, because I was married, and my husband and I were not with my mother, and things was left in Mr. Remley's hands and in his care, and I don't know what disposition he made of it. I never heard from Mr. Remley. I never wrote to him, and I never went to see him. It is right that I never heard from him from the time we left in 1872, and I don't know when he left the place. Mr. Remley was left in charge of mother's old home, and I never went back there until one time I went down there with Mrs. Rachford."

On cross-examination she testified:

"I said when my mother left there in 1872 she left a man by the name of Samuel Remley in charge of her place. Samuel Remley lived right alongside of her, across the line from her. I don't know how many feet away it was, but I could shout to him if we needed him, and call him from home. When my mother went to leave, as far as I know, she just left Mr. Remley to look over, and keep an oversight over her property; that is the idea. I told you my husband and I were together, I didn't know Mama's business. I was there at that time, but she lived in one part of the house, and I in the other. From there I went to Willis, Montgomery county and mother went to Denver. We both left at the same time. We didn't take the furniture with us; we left the house, furniture, and everything in the house in the care of Mr. Remley. Now, that is as far as I know. In 1872 was the last time I saw the fences, and they were in good repair then."

E. A. Hemenway testified:

"When I first saw that place, Mr. Riggs lived there. The first time I was over there I got acquainted with him. I was working for old man Stockholm, and me and one of his boys wanted a pair of shoes, and this boy knew old man Riggs, and we went up there, and had to buy a pair of shoes, and we went to Mr. Remley's place, and talked with him a good long while, and I asked the old man, `Does Mr. Riggs keep shoes?' and he told me he did, and I finally asked him who owned that old place. Mr. Remley is dead. I remember the fences around that Johnson place. There was a plank fence around it. I don't remember what year it was that I was there. I know he moved away from there. The best of my recollection it must have been in a couple of years that he moved; I don't know how long he had been there when I got there. I was 17 or 18 when I went to Riggs' place. I will soon be 67 years old. Mr. Remley is dead. I had a conversation with Mr. Remley. We were talking, and I just merely asked him, and had a conversation with him on his front porch. I knew Mr Remley from that time on up until he died. I had probably known him a little while before that. He was in sight of that property at the time we were talking. They have a public road there now, and it was just across the road. After I saw that place, and the fences there, I don't remember exactly how long the fences were there in the same shape I saw them, but it was for several years though. I couldn't say exactly how many years, but some 5 or 6 years, and may have been longer."

On cross-examination he testified:

"Mr. Riggs was the last man that lived in the Johnson house. About that time and a...