Porter v. Wilson

• Decision Date: 07 April 1965
• Docket Number: No. A-9867,A-9867
• Citation: 389 S.W.2d 650
• Parties: Thomas W. PORTER, Petitioner, v. Frank P. WILSON, Sr., et ux., Respondents.
• Court: Texas Supreme Court

Page 650

389 S.W.2d 650

Thomas W. PORTER, Petitioner, v. Frank P. WILSON, Sr., et ux., Respondents.

No. A-9867.

Supreme Court of Texas.

April 7, 1965.

Clayton, Martin & Harris, Amarillo, for petitioner.

Stone & Stone, John C. Chambers, Amarillo, for respondents.

SMITH, Justice.

The opinion heretofore delivered in this cause on December 2, 1964, is withdrawn and the following opinion is substituted therefor.

This trespass to try title suit was brought on April 17, 1962, by the Respondents, the Wilsons, against Thomas W. Porter and others to recover title and possession to 11.37 acres of land out of the west part of Section 11, Block 6, I & GN RR Company survey, situated in Randall County, Texas. However, the controversy presented in the Court of Civil Appeals and in this Court is solely between the Wilsons and Porter, and only involves the title to lots numbered twenty-one (21), and twenty-four (24) in Block Numbered Thirty-six (36) of the Palisades in Randall County, Texas. Both lots lie within the boundaries of the 11.37 acres described in the Wilsons' petition.

The Wilsons pleaded both the Five ¹ and Ten ² Year Statutes of Limitations, and issues as to both statutes were submitted to a jury for determination. The judgment of the trial court for the Wilsons, allowing a recovery of title to the entire 11.37 acres, including Lots 21 and 24, is based on affirmative answers in favor of the Wilsons on both Limitation issues. Prior to the submission of these issues pertaining to Lots 21 and 24, Porter filed and presented a Motion for Instructed Verdict which was overruled. Subsequently, Porter filed a motion for judgment non obstante veredicto, and a motion for a new trial. These motions were both overruled.

On appeal to the Court of Civil Appeals Porter, as Appellant, presented points asserting that the trial court erred in overruling the above-enumerated motions. Porter's principal contention throughout was that there was no evidence of probative force to support the findings of the jury that the Wilsons held title under and by virtue of either statute. The Court of Civil Appeals, 371 S.W.2d 611, affirmed the judgment of the trial court on the ground that the Wilsons had established title under the Five Year Statute of Limitations. Therefore, the court did not consider the points before it attacking the trial court judgment insofar as it was based upon the Ten Year Statute of Limitations.

Porter did not assign as error in his motion for rehearing the failure of the Court of Civil Appeals to pass upon these points, and his application for writ of error fails to present such points.

We have concluded to sustain Porter's contention that the Wilsons have failed to establish title under the Five Year Statute of Limitations, but the Wilsons contend that the judgment of the trial court must be affirmed because Porter did not assign as error the failrue of the intermediate court to pass upon the points attacking the judgment of the trial court based upon the finding of the jury that the Wilsons had established title under the Ten Year Statute of Limitations. With this latter contention we do not agree. Since we have concluded to reverse the judgment of the Court of Civil Appeals, holding that the Wilsons have title under the Five Year Statute of Limitations, we will dispose of the law questions presented in the application for writ of error, and the pertinent law questions presented on appeal to the Court of Civil Appeals which were not considered by that court. See McKelvy v. Barber, opinion by this Court, delivered July 8, 1964, 381 S.W.2d 59.

For the reasons now to be stated, we reverse the judgments of both the trial court and the Court of Civil Appeals, and render judgment that the Wilsons take nothing by their suit so far as Lots 21 and 24 are concerned.

FIVE YEAR STATUTE OF LIMITATIONS

The principal basis for the Wilsons' contention that the judgments of the courts below should be affirmed is the holding announced in Rosborough v. Cook, 108 Tex. 364, 194 S.W. 131 (1917), which is to the effect that in order to support a limitation title under the Five Year Statute of Limitations, it is not necessary that the deed, under which the claim is made, convey any title. The contention is that the grantor may be wholly barren of any vestige of title, and, therefore, the deed pass no semblance of title; yet, if it describes and purports to convey the land and is on its face a good deed, it meets the requirements of the statute, and the claimant under the deed would prevail, provided, of course, that all other requirements of the statute have been met.

The Wilsons also cite in support of their contention the case of Benskin v. Barksdale, Tex.Com.App., 246 S.W. 360 (1923), wherein it was held, in part:

'The deed is sufficient to support adverse possession and to set in motion the five-year statute of limitation. Parker v. Newberry, 83 Tex. 428, 18 S.W. 815 * * *. The statute, in so far as a deed is concerned, demands only that the person having peaceable and adverse possession of real estate be 'claiming under a deed or deeds duly registered.' Rev.St. Art. 5674. Of course such deed must describe the land. We think the instrument * * * falls within the class designated as deeds.'

We cannot agree that the judgments reached in these cases are controlling. The deed, ³ under which the Wilsons seek to perfect title under the Five Year Statute of Limitations, was executed by J. H. Bright and wife on May 28, 1956. This deed recites that the Brights 'bargain, sell, release and forever quit claim unto the said Frank P. Wilson, Sr., and wife, Iris Kirk Wilson, their heirs and assigns, all our right, title and interest in and to that certain tract or parcel of land. * * *' The habendum clause reads as follows:

'TO HAVE AND TO HOLD the said premises, together with all and singular the rights, privileges and appurtenances thereto in any manner belonging unto the said Frank P. Wilson and wife, Iris Kirk Wilson, their heirs and assigns forever, so that neither we, the said grantors, nor our heirs, nor any person or persons claiming under us shall, at any time hereafter, have, claim, or demand any right or title to the aforesaid premises or appurtenances, or any part thereof.'

The controlling question in this case is whether the instrument here involved is sufficient to give notice of the nature and extent of the claim asserted thereunder so as to qualify under the five-year statute. This question does not depend upon whether the grantors actually owned an interest in the property described in the instrument or not, but we must ascertain from an examination of the instrument whether it purports to convey the land itself or merely some wholly undefined and uncertain interest therein and in effect is a mrer release of an invalid or doubtful claim.

It seems well settled that a deed purporting to convey an undivided interest in land will not support a claim to the entire tract under the five-year statute but will only operate as a claim to the interest which the instrument on its face purports to convey. Martinez v. Bruni, Tex.Com.App. (1921), 235 S.W. 549, holdings approved by the Supreme Court, 2 Tex.Jur.2d 244, Adverse Possession, § 128. An instrument which purports to convey such right, title and interest as a grantor may have and no more will not qualify as a deed under the statute as it does not purport to convey the land itself nor does it specify any particular interest which is purportedly conveyed. Here the limitation claimants contend that the instrument under which they hold affords a basis for a limitation claim to all of Lots 21 and 24 under the five-year statute. The circumstance that the instrument employs the words, 'all our right, title and interest' or the word 'quitclaim' is not fatal to their contention as it must be determined from the instrument as a whole whether it purports to convey the land itself or merely such interest as the grantor may have therein.

For example, in Jackson v. Heath, Tex.Civ.App. (1959), 325 S.W.2d 453, no wr. hist., it was held that an instrument which quitclaimed all the right, title and interest of the grantor did not qualify under the five-year statute. The habendum clause contained in such instrument was as follows: 'to have and to hold the above released rights, titles, interests, claims and demands, to the said (grantors) their assigns, forever.' This decision is correct. From the face of the instrument it cannot be said that the grantors purported to convey the land or a specified interest therein. Instruments purporting to convey or release one's right, title or interest are commonly used to convey undivided interests of an unknown extent or claims having a dubious basis. It would be anomalous to say that a deed to an undivided one-third interest would support a claim to no more than an undivided one-third interest while a release or quitclaim of an unspecified right, title or interest would give notice and hence support a claim to the entire tract of land. In cases wherein the courts have construed an instrument employing the words, 'all my right, title and interest' as one purporting to convey the land itself, they have found some wording in the instrument which evidenced an intention to convey the land itself rather than the right, title and interest of the grantor.

In Cook v. Smith, 107 Tex. 119, 174 S.W. 1094, 3 A.L.R. 940 (1915), this Court construed an instrument which contained the following clauses:

Granting Clause: "* * * have bargained, sold, released and forever quitclaimed, and by these presents do hereby bargain, sell, release and forever quitclaim, * * * all my right, title and interest in and to that certain tracts of parcels of land * * *."

Habendum Clause: "To have and to hold the said premises, together with all and singular the rights, privileges and appurtenances thereto in any manner belonging to the said A. A. Neff and his heirs and assigns...