Rutledge v. Mitchell, 8158.

• Decision Date: 19 February 1936
• Docket Number: No. 8158.,8158.
• Citation: 91 S.W.2d 1135
• Parties: RUTLEDGE et al. v. MITCHELL et al.
• Court: Texas Court of Appeals

Page 1135

91 S.W.2d 1135

RUTLEDGE et al. v. MITCHELL et al.

No. 8158.

Court of Civil Appeals of Texas. Austin.

February 19, 1936.

Rehearing Denied March 11, 1936.

Appeal from District Court, Hays County; M. C. Jeffrey, Judge.

Trespass to try title by Annie Belle Mitchell and others against J. F. Rutledge and others. Judgment for plaintiffs, and defendants appeal.

Affirmed in part, and in part reversed and remanded.

Thos. J. Saunders, of San Antonio, and R. E. McKie, and Tom G. Oliver, Jr., both of San Marcos, for appellants.

Geo. W. Edwards, of San Marcos, for appellees.

McCLENDON, Chief Justice.

This is a suit in trespass to try title, involving a 5½-acre tract of land in Hays county. The judgment was in favor of plaintiffs (appellees), upon a directed verdict. Defendants (other than those disclaiming) have appealed. For convenience we will designate the parties as in the court below.

Plaintiffs are children and heirs at law of Pinkie (Mitchell) Gray, who died intestate in 1930. Pinkie married George Gray in 1914, plaintiffs being Pinkie's children by a former union. The property was set aside to Pinkie in 1926, in a partition presumably of the estate of George, who died in 1915.

It is alleged in the petition that George was owner of the property, but there is no evidence of such ownership other than the testimony of one of the witnesses to that effect. The issue being one of title, this testimony had no probative force. Henry v. Phillips, 105 Tex. 459, 151 S.W. 533; Gilbert v. Odum, 69 Tex. 670, 673, 7 S.W. 510; Webb v. Reynolds (Tex.Com.App.) 207 S.W. 914.

It is also alleged that: Defendant Rutledge is claiming under a deed from the administrator of Pinkie Gray; defendant Roger's interest is by virtue of a note secured by vendor's lien retained in said deed; which deed and lien are void by reason of the fact that the property was the homestead of Pinkie and not subject to sale for her debts. There is, however, no evidence whatever of such deed or claim, and consequently no proof of common source of title. See R.C.S. art. 7382, and annotations thereunder in Vernon's Annotation, vol. 20.

The only proof of title in plaintiffs or in George or Pinkie is evidence of former possession, which is in substance as follows: Shortly after their marriage George and Pinkie moved on the property, occupying it as their homestead until George's death. Pinkie and some of her children continued to occupy it until the house on it, in which they lived, burned. Some of the witnesses testified that this occurred in 1925. One of plaintiffs' witnesses, who lived across the road from the property, testified that there was no house on the property as early as 1922 or 1923. There was also testimony to the effect that Pinkie lived on the property in a tent for a short time after the house burned, when she moved into San Marcos on account of her health. There is no evidence of any character of possession since 1926, other than that to the effect that shortly after she moved to town Pinkie had a foundation dug for the purpose of erecting a rock house; and in December, 1929, she employed a carpenter at $25 a week to erect a frame house. The carpenter worked two weeks, and was paid for one week's work. Pinkie became ill about this time, and was taken to a hospital in San Antonio, where she died shortly thereafter. No character of possession or exercise of dominion over the property was shown after Pinkie's death. When or under what circumstances Rutledge took possession is not shown. The suit was filed July 19, 1933.

The authorities in this state do not seem to be in complete accord, at least in their expressions of view, upon the issue whether plaintiff's prior possession as prima facie evidence of title must continue up to the very time of entry of the...