Satterwhite v. Rosser

• Decision Date: 19 February 1884
• Docket Number: Case No. 1762.
• Citation: 61 Tex. 166
• Court: Texas Supreme Court
• Parties: F. M. SATTERWHITE ET AL. v. LEANAH ROSSER ET AL.

61 Tex. 166

F. M. SATTERWHITE ET AL.

v.LEANAH ROSSER ET AL.

Case No. 1762.

Supreme Court of Texas.

Feb. 19, 1884.

APPEAL from Houston. Tried below before the Hon. John R. Kennard.

The fact, stated in the opinion, that the charges given, and those refused, to which exceptions were taken, cover about thirty pages of the record, precludes their insertion, nor, in view of the opinion, which announces principles by which their correctness was to be tested, is it deemed necessary. The original pleadings seem to have been lost, and there is nothing in the record to determine when the original petition was filed. The first pleading found in it is the plaintiffs' first supplemental petition, filed September 20, 1882, by F. H. Bayne and other parties, who sued as the heirs of Leanah Rosser, deceased. They sued as joint owners of the land in controversy, and explained that their joint ownership was alleged on the following facts:

That Leanah Rosser was the owner in fee simple and entitled to the possession of land; that as such, she entered into a contract with Earle Adams, Esq., whereby she employed him as her attorney to sue for and establish her title, and in writing agreed to give to him an undivided half interest in the land for his services; that she in writing empowered him to sell and convey the whole of her interest; that Adams afterwards, in 1879, made an agreement with the co-plaintiff, Bayne, whereby he agreed to sell him his (Adams') interest, and that he made Bayne a deed whereby he transferred to him such interest, and also agreed to sell and convey to Bayne Mrs. Rosser's remaining half interest, but that no writing was drawn to consummate that agreement, and that with such a state of the title, the suit was brought by the parties as co-plaintiffs.

The statement of facts consists of the testimony of many witnesses, coverning nearly a hundred pages, whose evidence was mainly pointed to the question of possession and limitation claimed by appellants. The principles announced in the opinion will be understood without attempting to give even in condensed form that testimony. Verdict and judgment for appellees.

No briefs on file for appellant.

A brief is on file for appellee, but is not signed.

WEST, ASSOCIATE JUSTICE.

Under the facts adduced in evidence, the district court did not commit any serious error in refusing to give the instruction asked by the appellants in reference to the title or interest disclosed in F. H. Bayne, one of the appellees, or in relation to the running of the statute of limitations as against him.

The facts disclosed, and the jury so found by their verdict, that Bayne had, as a matter of fact, a joint interest in the land sued for with Mrs. Rosser, before the suit was filed.

In our practice there is no distinction whatever made between legal and equitable rights as to the time and manner of their enforcement. In this case, though the legal title to the land in suit may have been in Mrs. Rosser, yet if Bayne had acquired, before the suit was brought, an equitable interest in the land, based upon a contract made by her with him, either in person or by an authorized agent, it would be competent, at least not improper, to join him with her in a suit for the recovery of the land. Certainly, when, as in this case, she consented to his joining her in the suit, and the evidence discloses that in fact he did have a present interest in the land before the suit was brought, the court did not err in refusing the charge asked on this subject. Though the joinder of Bayne as one of the parties plaintiff in the suit, under the circumstances disclosed by the evidence, as has been said, was not strictly and in every respect regular, and he could not be considered under the state of the facts as a necessary party to the suit, still he had such an interest in the subject-matter of the controversy that his joinder might be tolerated, if his co-plaintiff gave her consent to it.

At all events, it appears that the most that can be said is, that, though his joinder was an irregularity, it was not fatal to the cause of action, and it does not appear that any rights of appellants were in the least prejudiced by it, and the action of the district court in the matter does not, under the circumstances, call for a reversal of the judgment on that account. Sayles' Practice (2d ed.), sec. 169, p. 180, and also citing, to the same effect, Story's Eq. Pl., 76, 77; St. Louis R. R. Co. v. Narramore, Texas Law Rep. (vol. 2), p. 517.

Nor do we think that the district court erred in giving the instructions to the jury, to be found in the main charge of the court, on the subject of adverse possession, in connection with the plea of the statute of limitations of ten years. Nor was there any error, at least under the special facts of the case under consideration, in refusing the instruction on this subject asked by the appellants.

For the purpose of showing more fully that the action of the district court in this respect was not error, it may be proper to look somewhat into the charges given by the court of its own motion. Also, it may be well enough to consider in this connection, to some extent, the instructions asked by the appellants and refused by the court.

The charge of the court was very lengthy, covering as many as twenty closely written pages of the record. In addition to this lengthy exposition of the law applicable to the case given by the court, the appellants asked voluminous instructions extending over ten pages of the record. At the same time the intervenors, who have not appealed, also demanded five more pages of instructions as to their rights, to be given to the jury.

Taking into consideration the case as set forth in the pleadings of all the parties, and the state of facts finally disclosed by the evidence actually to exist, the charge of the court was, taken as a whole, a reasonably fair one, and in the main a correct enough exposition of the law of limitation, as applicable to the case in hand. It at least furnished the jury with sufficiently correct information as to the law governing the case on this point to enable them to pass intelligently upon the facts before them.

In the third, fourth, fifth, sixth and seventh assignments of error, it is insisted that, in several respects, the charge of the court on the question of adverse possession, even if correct in the abstract, was not applicable to the state of the case disclosed by the evidence.

The portions of the main charge of the court brought under review by these assignments of error relate to the intent with which the original entry was made, and the circumstances and manner in which the actual occupancy commenced, and also instructs the jury as to the law applicable to a case where the original entry was under the true owner, and the occupant afterwards changes or attempts to change this character of possession into an adverse holding.

We cannot agree with the appellants in their view as to these claims. There was some evidence, more or less, as to all the issues presented by the court in those portions of the charge that are here complained of.

One of the main grounds of complaint is, that, although there was no evidence on the point, yet the court, in more than one paragraph of its charge, presented for the consideration of the jury the law applicable in the event that the party entering went into possession originally for some other purpose than to claim the land against the true owner, and after so...