Pilcher v. Kirk
| Decision Date | 06 May 1881 |
| Docket Number | Case No. 2729. |
| Citation | 55 Tex. 208 |
| Parties | SIDNEY PILCHER v. A. L. KIRK ET AL. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Erath. Tried below before the Hon. J. P. Osterhout.
Sidney Pilcher filed her petition in the district court of Erath county on the 6th day of August, A. D. 1873, against A. L. Kirk, William Hughes and Henry French, for the recovery of one-third of a league of land, averring, in substance, that the land had been located by virtue of a certificate issued by the district court of Liberty county, Texas, on the 9th day of October, A. D. 1841, to John Gaylor; that John Gaylor, the grantee, died in Liberty county, Texas, on the 4th day of March, 1848; that she was his sole surviving heir; that all of his other heirs were dead, and that she was entitled to the land by reason of such heirship.
Defendants answered that they were not guilty, and pleaded title in themselves. Defendant Kirk averred that he purchased from John Gaylor, in 1870, paying value. Defendant Hughes averred that he had purchased from defendant Kirk a part of the land, and suggested valuable improvements, holding under deed duly recorded for more than one year, before the filing of this suit, etc. Verdict and judgment for the defendants.
One of the errors assigned was the refusing to give a charge, which is fully disclosed in the opinion.
The deed from John Gaylor to appellee Kirk bore date January 21, 1870, and therein the former claims to be, and conveys as, the grantee in the certificate and patent.
T. G. Bean, for appellant.
T. N. Nugent, for appellees.--The rule at common law, with the American modification, seems plainly to contemplate that a recovery may be had of the whole or a moiety of the premises, according as the action may be brought by all or one of the co-tenants, upon a joint or a separate demise; but it is nowhere so broadly stated as to allow a recovery of the whole by one co-tenant in his own right and against any defendant. Our simple action is nothing more nor less than ejectment, stripped of its technical fictions. The real parties in interest in the former come before the court, instead of the mythical plaintiff and defendant of the latter; and a direct allegation of ownership has superseded the statement of the demise. The character and extent of the plaintiff's right in both must be disclosed by the pleadings. In ejectment, the demise affords the test; it measures the plaintiff's interest and his right of recovery. In our action, the direct allegations of the real parties in interest furnish the rule, and they recover such interest as they allege and prove. But to lay it down as a universal rule, applicable to all cases, that one joint tenant, or tenant in common, can maintain trespass to try title as against any and all adverse claimants, would scarcely be proceeding “conformably to the principles of trial by ejectment.” If the rule were such as is contended for by appellant, if in ejectment one joint tenant or tenant in common could in all cases recover the whole premises without joining his fellows, there seems to be great reason why the rule should not apply to actions under our statute. Ejectment was a mere possessory remedy in effect; it settled nothing but the right of present possession; and only so far as it was necessary to determine this right was the question of title brought in issue. Our action is peculiarly one for the adjudication of the title; it settles nothing as to mere right of possession, only so far as that may be incidental to the title, and is conclusive in its effect.
Assuredly we have not incorporated in our jurisprudence a rule of practice, the effect of which would be to prolong litigation in many cases to the point where parties would be compelled to resort to a court of equity for a bill of peace to quiet and settle their titles. If the rule be as contended for, co-tenants may sue successively in separate actions, and thus for years harass adverse claimants with vexatious litigation, and we have gained little by dropping the fictions of the common law; for it cannot be said that the co-tenant would be estopped by the action of his fellow, to which he was in no sense a party.
Appellant brought this suit of trespass to try title to a third of a league of land, patented to John Gaylor; alleging in her petition that he died on the 4th day of March, 1848, in Liberty county, Texas, and “that she is the only surviving legal heir of said John Gaylor, deceased, all of his children and grandchildren having long since departed this life, except this plaintiff, who is an only grand-daughter to said John Gaylor, deceased, and that she is the only daughter now living of Mariah Pilcher, formerly Gaylor; and claims under her mother, who was the daughter of John Gaylor.” She alleged that the appellees committed the trespass and made the illegal entry upon the land the 1st day of August, 1873.
On the 16th day of February, 1874, appellees answered by plea of not guilty, and afterwards appellee Hughes made suggestion of valuable improvement, etc.
On the 9th day of May, 1874, the appellees filed an amended answer, asserting title in themselves to the land; that they were innocent purchasers thereof, for value, and without notice of any adverse claim or title; and also that they had paid all the state and county taxes on said land, and that appellant had paid no taxes.
The case was tried the 17th day of November, 1874, and resulted in a verdict and judgment in favor of appellee.
The evidence adduced upon the trial tended to show that there was then living other of the heirs of John Gaylor, besides appellant. The court in effect charged the jury that if they believed that there was living other heirs of said John Gaylor, besides appellant, then to find against her. Appellant asked a counter charge, to the effect that a non-joinder of parties plaintiff must be pleaded, etc. And as there was no such plea in this case, if they believed from the evidence that John Gaylor, the grantee of the land, was dead, and that appellant was his heir at law, then to find for appellant. This was refused. The charge as given, and refusal to give the charge as asked, are assigned as error.
The question thus presented may be considered as the controlling one in the record for our determination; as the attorney for the appellee candidly admits in his brief, that, if the court erred in this particular, a reversal of the judgment must follow. And certainly this is true; for it matters not what deductions the jury might have drawn, or what conclusions they may have arrived at, from the evidence, as to the deceased John Gaylor being the grantee in the certificate and patent, and the appellant being his heir at law; provided the jury were satisfied that he had other living heirs besides her, not joined in the suit, then the charge precluded further inquiry.
It is assumed by counsel that the precise question presented by the record in this case has not heretofore been adjudicated by the supreme court. And admitting this to be true, we will be forced to an examination and consideration of the cases in which questions analogous and akin to this have been determined; and from them extract that which we may determine to be the true rule to be applied in this case.
Croft v. Rains, 10 Tex., 520, is where the plaintiff sued in trespass to try title to nine hundred acres of land, claiming to own the same. Pending the suit, there was a partition between himself and his co-tenant, in which his interest of six hundred and forty acres was segregated from the remaining two hundred and sixty acres. He then amended and set up that fact, and also that he had purchased the undivided six hundred and forty acre interest in the survey, long prior to the institution of the suit. The court, in discussing this view of the case, said: ...
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Hicks v. Southwestern Settlement & Develop. Corp.
...plaintiffs discontinued, Biencourt v. Parker, 27 Tex. 558; Presley v. Holmes, 33 Tex. 476. The brief of the arguments reported in Pilcher v. Kirk, 55 Tex. 208, shows that the Supreme Court on at least this occasion had before it a contention that the rule authorizing a tenant in common to m......
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Envtl. Processing Sys., L.C. v. FPL Farming Ltd.
...defined a trespasser as “one who, not having the title to land, without the consent of the true owner, makes entry thereon.” Pilcher v. Kirk, 55 Tex. 208, 216 (1881) (emphasis added). Similarly, in 1884, this Court recognized that “[t]he ordinary signification of the term ‘trespass' is the ......
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Hensley v. Conway, 692.
..."A trespasser * * * is one who, not having the title to land, without the consent of the true owner, makes entry thereon." Pilcher v. Kirk, 55 Tex. 208. Plaintiffs and defendants had precisely the same title from the state down to M. Kelley. They were therefore, under the literal terms of t......
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Yoakum County v. Slaughter
...appellant will be held entitled to recover the entire land as against the appellee: Murrell v. Wright, 78 Tex. 519, 15 S. W. 156; Pilcher v. Kirk, 55 Tex. 208; Robertson v. Johnson, 57 Tex. 63; Contreras v. Haynes, 61 Tex. 103; Gaither v. Hanrick, 69 Tex. 92, 6 S. W. 619; Carley v. Parton, ......