Porter v. Wilson, 7281

• Court: Texas Civil Court of Appeals
• Writing for the Court: NORTHCUTT
• Citation: Porter v. Wilson, 371 S.W.2d 611 (Tex. Ct. App. 1963)
• Decision Date: 16 September 1963
• Docket Number: No. 7281,7281
• Parties: Thomas W. PORTER et al., Appellants, v. Frank P. WILSON, Sr., et ux., Appellees.

Page 611

371 S.W.2d 611

Thomas W. PORTER et al., Appellants, v. Frank P. WILSON, Sr., et ux., Appellees.

No. 7281.

Court of Civil Appeals of Texas, Amarillo.

Sept. 16, 1963.

Rehearing Denied Oct. 21, 1963.

Clayton, Martin & Harris, Amarillo, for appellants.

Stone & Stone, Amarillo, John C. Chambers, Amarillo, of counsel, for appellees.

NORTHCUTT, Justice.

This is an action in trespas to try title brought by Frank P. Wilson, Sr. and wife, Iris Kirk Wilson, as plaintiffs against Thomas W. Porter and a large number of other persons as defendants for title and possession of 11.37 acres of land out of the west part of Section 11, Block 6, I. & G. N. R. R. Company in Randall County, Texas. The land was described by metes and bounds in the plaintiffs' petition. There is no question here involved as to all the said tract of land, save and except Lots Nos. 21 and 24 in Block 36 of the Palisades, and a small tract lying between Lots Nos. 23 and 24. Lots Nos. 21 and 24 and the small tract lying between Lots Nos. 23 and 24 are included within the bounds of the 11.37 acres above mentioned. On September 1, 1949, the 11.37 acres, except Lots Nos. 21 and 24, were deeded by warranty deed to J. H. Bright and wife, Bertie B. Bright. The deed excepted said Lots Nos. 21 and 24. Bright took immediate possession and moved onto said property. On May 28, 1956, Bright and wife, by warranty deed, deeded the 11.37 acres, excepting Lots Nos. 21 and 24, to wilson and wife. The Wilsons immediately moved onto said property and have lived there and have held possession of the entire 11.37 acres of land ever since. On the same day the Brights deeded the property to the Wilsons and excepted Lots Nos. 21 and 24 from the warranty deed they gave a quit claim deed to the Wilsons to Lots Nos. 21 and 24. The first part of the deed the grantors sold, released and forecver quit claimed to appellees all their rights, title and interest in and to the property, describing the property. The habendum clause provided to have and to hold said premises together with all rights, privileges and appurtenances thereto forever. Wilson filed for record both deeds May 29, 1956, at 10:00 a. m., which deeds were duly registered. Plaintiffs filed their original petition on April 17, 1962, and the defendant, Thomas W. Porter, answered by a plea of not guilty and by cross action for recovery of Lots Nos. 21 and 24 and the small tract lying between Lots Nos. 23 and 24. The other defendants will not be referred to hereafter as they are in no way interested in this appeal. For convenience, wilsons will be referred to as appellees and Porter as appellant.

Appellees claim title as to Lots Nos. 21 and 24 under the five and ten year statutes of limitation. Since we are of the opinion that appellees are entitled to recover title under their claim of five years statute of limitations, we will only consider that portion of this appeal.

This case was submitted to a jury upon two special issues. Issue One was as to the five years limitation and Issue Two as to the ten years limitation. Both issues were answered in favor of appellees. Special Issue One was as follows:

'Do you find from a preponderance of the evidence, if any, that the plaintiffs and those through whom they hold conveyances, held peaceable and adverse possession of the land in controversy, continuously cultivating, using or enjoying the same, and paying taxes thereon, and claiming under a deed or deeds duly registered, for any consecutive period of five years prior to April 17, 1962? Answer YES or NO.'

The jury answered 'Yes.' No objections were filed as to the question asked. The quit claim deed properly described the two lots here in question and was properly registered. The appellees had paid all taxes as found by the jury. That part of Article 5509, Texas Civil Statutes, which determines what is necessary to establish the title here involved reads as follows:

'Every suit to recover real estate as against a person having peaceable and adverse possession thereof, cultivating, using or enjoying the same, and paying taxes thereon, if any, and claiming under a deed or deeds duly registered, shall be instituted within five years next after cause of action shall have accrued, and not afterward.'

The purpose of requiring the registration of deeds under the plea of five years limitation is to give notice to owners of land that the person in possession thereof is claiming adversely to them. We think the charge of the court and issues submitted asked the jury if the appellees had complied with the requirements of Article 5509. We are of the further opinion that there was sufficient evidence to sustain the finding of the jury. The Supreme Court in the case of Benskin v. Barksdale, Tex.Com.App., 246 S.W. 360, approved a...