Simonds v. Stanolind Oil & Gas Co.

• Decision Date: 16 March 1938
• Docket Number: No. 7308.,7308.
• Citation: 114 S.W.2d 226
• Parties: SIMONDS et al. v. STANOLIND OIL & GAS CO. et al.
• Court: Texas Supreme Court

114 S.W.2d 226

SIMONDS et al. v. STANOLIND OIL & GAS CO. et al.

No. 7308.

Supreme Court of Texas.

March 16, 1938.

COPYRIGHT MATERIAL OMITTED

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by Junius Simonds and others against the Stanolind Oil & Gas Company and others for recovery of an undivided one-half interest in a tract of land. A judgment for the defendants on an instructed verdict was affirmed by the Court of Civil Appeals, 103 S.W.2d 784, and the plaintiffs bring error.

Judgments of the Court of Civil Appeals and the District Court reversed and cause remanded to the District Court.

B. T. Fitzhugh, of Tyler, Raymond P. Elledge and Vernon Elledge, both of Houston, Ralph B. Shank, of Tyler, and Greenwood, Moody & Robertson and Dan Moody, all of Austin, for plaintiffs in error.

Coke & Coke, Turner, Rodgers & Winn, M. S. Church, Prentice Wilson, Carl W. Wade, and Evan S. McCord, all of Dallas, and Clay Tallman and L. A. Thompson, Jr., both of Tulsa, Okl., for defendants in error.

SMEDLEY, Commissioner.

The Court of Civil Appeals affirmed the judgment of the district court rendered pursuant to an instructed verdict in favor of defendants in error in the suit of plaintiffs in error for the recovery of an undivided one-half interest in a tract of land containing 110 acres in Gregg county. 103 S.W.2d 784, 786. We agree with the statement in the opinion of the Court of Civil Appeals that the controlling question "is one of limitation under the five-year statute (Vernon's Ann.Civ.St. art. 5509), during the period from and including the year 1923 to and including the year 1927," but we do not agree with the conclusion of that court that the trial court was correct in peremptorily instructing the jury in favor of defendants in error under that statute.

The tract of land in controversy is the east half, or 110 acres off the east end, of a tract described as containing 200 acres of land out of the southwest corner of the Pleasant McAnally survey on the Sabine river, which tract of 200 acres was conveyed by L. S. Markham to Jack Smith and Ellen Smith, husband and wife, in the year 1878. It was proven by undisputed evidence that Jack and Ellen Smith acquired good title to the 200 acres of land by adverse possession of more than ten years. At the time of Jack Smith's death in 1889 he and his wife owned the 200-acre tract in the McAnally survey and also 200 acres of land in the Hart survey. Thereupon the 400 acres of land were partitioned among Ellen Smith, the surviving wife, and the three children, Louisa Moseley, Annie Johnson and Charley Smith, the east half of the 200-acre tract in the McAnally survey being given to Ellen Smith and the west half of said tract to Louisa Moseley. On September 18, 1903, Ellen Smith by deed executed also by the children conveyed the east half, or 100 acres off the east side, of the 200-acre tract to Alfred Sammons and Margaret Sammons, who were husband and wife. This deed was not filed for record until February 9, 1935. It is shown that the correct name of the grantees was Simonds, but that members of the family sometimes spelled the name Sammons, Simmonds, or Sammon. Margaret Simonds, without having executed any conveyance of her interest in the land, died intestate in the year 1906, leaving many children. Plaintiffs in error are her heirs, and as such claim title to an undivided one-half interest in the 110-acre tract under the deed above described from Ellen Smith and others to Alfred and Margaret Sammons.

Alfred Simonds, by deed dated January 3, 1916, and filed for record the next day, conveyed the 110-acre tract to W. M. Weathersby. Defendants in error have a chain of title under that deed and through Percy McGeorge, to whom the 110-acre tract and a 53-acre tract of land out of the same survey were conveyed by Oklahoma Farm Mortgage Company on March 15, 1922. Defendants in error undertook to prove a limitation title to the 110-acre tract by Percy McGeorge's adverse possession of the land through tenants during the years 1923 to 1927, both inclusive.

The 53-acre tract lies to the northwest of the 110-acre tract, and for a distance of about 96 varas its south line coincides with the north line of the 110-acre tract. During the years 1923 to 1927 the two tracts were separately fenced. There was a wagon road between them and on each tract was a small boxed house. Percy McGeorge, however, considered the two tracts as one farm of 163 acres and as such paid taxes on them. The opinion of the Court of Civil Appeals states that "There is no question but that McGeorge held the 53-acre tract adversely to all persons." While the evidence as to possession of the 53-acre tract by McGeorge through tenants is somewhat vague, we will assume, without deciding it, that he had during the years 1923 to 1927, both inclusive, such exclusive, continuous, and adverse possession of the 53-acre tract as is required for the acquisition of title under the statute of limitations. It is further stated in the opinion of the Court of Civil Appeals that "There is some dispute as to whether McGeorge through tenants actually used and cultivated any part of the 110 acres during the years 1923 and 1927." It very clearly appears from an examination of the statement of facts that an issue of fact was made by the evidence as to actual possession of the 110 acres during the five years. The evidence offered by defendants in error, which related in the main to the renting of the property and the collection of rents from crops, is not of itself conclusive. Brymer v. Taylor, 5 Tex.Civ.App. 103, 23 S.W. 635. Witnesses for plaintiffs in error testified that during the years 1923 and 1927 no one was farming the 110-acre tract or using it or living in the house on it and that the fences were down.

Notwithstanding the fact that there was a jury issue as to actual possession of the 110-acre tract for the five-year period, the Court of Civil Appeals held that actual possession of the 53-acre tract by McGeorge constructively extended to the 110-acre tract and that, by such constructive possession, the payment of taxes and claim under recorded deeds conveying both tracts, McGeorge acquired title under the five-year statute to the interest of plaintiffs in error in the 110-acre tract. In making such decision the Court of Civil Appeals applied the first of two rules announced by Associate Justice Williams in Allen v. Boggess, 94 Tex. 83, 85, 58 S.W. 833, that is, that a grantee's actual possession of one of two distinct but adjacent tracts conveyed by the same deed will constructively extend to the other tract "unless such possession is to be limited by another rule to which we shall refer." The other or second rule referred to by Justice Williams is that of Turner v. Moore, 81 Tex. 206, 16 S.W. 929, which he thus states: "Where a deed describes land, part of which is owned by one person, and the remainder by another, and an actual entry is made under it upon land of only one of the owners, the possession thus taken cannot be held to extend by construction to the land of the other, though the deed embraces it." It is the rule of Turner v. Moore, supra, and not that applied in Allen v. Boggess, supra, that is appropriate to the instant case, for the land that McGeorge actually possessed during the five-year period was the 53-acre tract, which according to the opinion of the Court of Civil Appeals was never owned or claimed by plaintiffs in error. We do not find in the record evidence establishing conclusively the fact that plaintiffs in error did not own the 53-acre tract, but there is evidence from which it may reasonably be inferred that they never owned or claimed it, and, since the appeal is from an instructed verdict in favor of defendants in error, we assume the correctness of the statement made by the Court of Civil Appeals. The 53-acre tract first appeared in defendants in error's chain of title when Robert Davis in the year 1919 executed a deed of trust conveying the 110-acre tract and also the 53-acre tract to a trustee to secure several notes payable to Oklahoma Farm Mortgage Company. Thereafter the deeds in the chain of title of defendants in error conveyed the 53-acre tract as well as the 110 acres.

As shown by the opinion, the rule of Turner v. Moore, supra, was not applied in Allen v. Boggess, supra, for the reason that the record gave no information as to the condition of the title. The plaintiffs, who went into possession of one tract under a deed conveying two adjoining tracts, recovered upon their claim of title by limitation. There being no evidence that defendants either had title or had no title to either tract, the plaintiffs' possession presumptively extended to all of the land described in the deed.

In Turner v. Moore, supra, the plaintiff Moore had title to two tracts of land in controversy aggregating 833 acres, part of the English league, unless defeated by the limitation claim of Turner, the defendant. Turner, under a deed conveying to him the entire league, took and maintained actual possession of 90 acres, but had no actual possession of any part of the land in controversy. It was held that the actual possession by Turner of part of the land conveyed to him did not give him constructive possession of the land to which Moore had title, for the reason that Turner was not in actual possession of land owned or claimed by Moore. Judge Tarlton, writing the opinion adopted by the Court, correctly likened the possession of Turner to the possession of the occupant of land covered by a junior grant partly in conflict with a senior grant, the occupant not being in actual possession of any portion of the land within the conflict. Possession of that part of the junior grant not in conflict, being possession of land not owned by him who has title to the senior grant, does not give notice of hostile claim to land within the conflict, and therefore will not support title to it...