Prince v. Flukinger

• Decision Date: 12 May 1964
• Docket Number: No. 7528,7528
• Citation: 381 S.W.2d 75
• Parties: J. L. PRINCE et al., Appellants, v. Stanley P. FLUKINGER et al., Appellees
• Court: Texas Court of Appeals

Page 75

381 S.W.2d 75

J. L. PRINCE et al., Appellants, v.Stanley P. FLUKINGER et al., Appellees.

No. 7528.

Court of Civil Appeals of Texas, Texarkana May 12, 1964.

Eugene J. Pitman, DeLange, Hudspeth & Pitman, John H. Holloway, Houston, for appellants.

John Croom, Houston, for appellees.

CHADICK, Chief Justice.

The initial action is in statutory Trespass to Try Title, with cross actions filed by certain defendants and intervenors.The first opinion herein dated February 11, 1964, is withdrawn.The judgment of the trial court is reversed and the case remanded for new trial.

Special issues were submitted to and answered by a jury; judgment was entered awarding the plaintiffs, Stanley P. Flukinger, Rembert O. Smith and Doris C. Hautier a recovery of title from J. L. Prince and Houston Belt & Terminal Recreation Club, Inc., 'as their interest may appear', in a 684 ofa acre tract of land.The Houston Belt & Terminal Recreation Club, Inc., was adjudged a recovery of $936.25 from J. L. Prince, J. R. Prince, and their respective wives for breach of warranty of title.A take nothing judgment was decreed on J. L. Prince's cross-action against Flukinger, Smith and Hautier, with the cost of the entire litigation adjudged against him.

Both the recreation club and the Princes' have appealed from the judgment as a whole, but the recreation club limits the relief it seeks to an affirmance of its recovery of damages from J. F. Prince and wife, Cletia Prince, should the recovery of Flukinger, Smith and Hautier be sustained.

The appellees Flukinger, Smith and Hautier brief this as a trespass to try title suit involving the location of a boundary.They urge affirmance on the theory that the appellees proved a superior title from a common source and located the disputed 684 of an acre tract on the ground within the bounds of the land described in their title deed.A topical discussion of the appellants' points is made for brevity's sake.

Common Source

Flukinger, Smith and Hautier, on the one hand and the Club and the Princes on the other, claim title to their respective adjoining tracts of land under achain of deeds emanating from J. A. Hautier, the owner of a 51.4 acre tract.The club is the remote vendee under J. L. Prince of a 3 acre tract out of J. L. Prince's 10 acre tract; the Prince 10 acres was carved out of the original 51.4 acre J. A. Hautier tract.(J. R. Prince and his wife acquired an undivided interest in the residue of the Prince 10 acre tract at a time subsequent to the date J. L. Prince deeded the three acres that eventually vested in the Club).The plaintiffs, Flukinger, Smith and Hautier, undertook to prove that the south boundary of the original 10 acre Prince tract and the south boundary of the Club's 3 acre tract is a common boundary line, and that accurate establishment of this line located the disputed .684 strip outside the boundary of the original Prince 10 acres and within the boundary of the residue of the larger 51.4 acre J. A. Hautier tract now owned by Flukinger, Smith and Hautier.

The Princes and the club, each in their or its own behalf, offered as evidence of title, deeds connecting their respective tracts with the J. A. Hautier title.But the club insists that the evidence vests in it a title independent of the title emanating from J. A. Hautier.This independent title is evidenced by a judgment in a trespass to try title suit; the title recovered therein was from a source in nowise connected or linked in to the chain of title emanating out of J. A. Hautier.The club did not purport to rely solely upon the title acquired by this judgment, but as first mentioned, also claimed ownership by reason of the muniments that connected its title with J. A. Hautier.The evidence did not connect the judgment title into a chain of title connected with a patent from the state.Nor does the evidence show that title derived through judgment is superior to the title of J. A. Hautier.In 'Trespass to Try Title', 41-A, Tex.Juris. p. 720, the governing rule applicable to this factual situation is expressed in this language:

'Where a party sets up a title which has emanated from an individual other than the person who has been shown to be a common source of the litigants' titles, in other words, an independent source, he must establish that such title * * * is valid and effectual, that it is superior to the title of the common source, and that he has acquired the independent title or that it has not been acquired by the individual who is shown to have been the common source.'

Such being the factual background the club and the Princes are relegated to such title as they derive from the common source J. A. Hautier.

Both appellants contend that there is a hiatus in the appellees' chain of title extending back to J. A. Hautier when a deed--which they contend is inadmissible as evidence--is excluded from the proof.The deed is from D. C. Hautier, Leon Van Meldert and M. L. Hyman to Mrs. Doris Carlton Hautier.The deed contains recitals that the San Jacinto Royalty & Refining Corporation had been dissolved, and that the grantors comprised the entire board of directors at the time of dissolution and were acting as trustees to liquidate and distribute the assets of the dissolved corportion.It is urged that the recitals are hearsay as to the...