South Texas Development Co. v. Manning

• Decision Date: 02 June 1915
• Docket Number: (No. 5499.)
• Citation: 177 S.W. 998
• Parties: SOUTH TEXAS DEVELOPMENT CO. v. MANNING.
• Court: Texas Court of Appeals

177 S.W. 998

SOUTH TEXAS DEVELOPMENT CO. v. MANNING.

(No. 5499.)

Court of Civil Appeals of Texas. San Antonio.

June 2, 1915.

Rehearing Denied June 23, 1915.

Appeal from District Court, Montgomery County; J. Llewellyn, Judge.

Action by the South Texas Development Company against Walter Manning. From judgment for defendant, plaintiff appeals. Reversed and remanded.

John W. Lewis, of Houston, for appellant. C. W. Nugent, of Conroe, for appellee.

CARL, J.

Appellant states the case thus:

"This was an action of trespass to try title, filed by the South Texas Development Company against Walter Manning for 384.3 acres of land, a part of the Texas & New Orleans Railroad Company survey No. 15, in Montgomery county, Tex. Appellee, Walter Manning, answered, disclaiming as to all of said land sued for, except 160 acres out of said tract, which he claimed by statute of limitations of 10 years, and setting up by definite description the 160 acres claimed by him. On the trial, appellant showed a perfect record title to the entire 384.3-acre tract sued for. The court charged the jury that the uncontroverted evidence showed the appellant to have the legal title to all of the land described in its petition, and is entitled to recover of the appellee, unless such recovery is defeated by his plea of limitation. The case was tried with the aid of a jury, who returned a verdict for appellee for 160 acres of land, and judgment was entered accordingly for said appellee.

The period during which it is claimed Manning's limitation title matured began about September 6, 1902. It is admitted that one Ed Payne and Joe McDonald, at different times during the 10-year period, were living upon the premises, the difference of opinion being as to the capacity in which they were in possession. Appellee claims that McDonald got permission from his tenant, E. A. Smith, to stay in the house while he, McDonald, was cutting ties on this 160 acres and other lands. McDonald bought Manning's little crop of sweet potatoes at the time he went into possession of the house and premises in 1906. Appellee admits this, but claims that McDonald became his tenant through permission from Smith, whom he had placed in charge of the place. It is not denied that McDonald was working under authority of the record owner in cutting crossties.

Appellee testified, on the trial, substantially, to the following facts:

He says that he married in March, 1902, and that he went upon this land about the 6th of September of that year; that he went upon it on his own hook. "I did not buy a claim from any one. There was no one claiming it that I knew of. If Mr. Payne was claiming the improvements, I did not know it; I did not know who put the house there." He says that he went upon it with the intention of acquiring the title by 10 years' limitation; that he offered to give Ed Payne $25 for a quitclaim deed to the place if he and his father could show any substantial claim; that he would simply pay them for their rights, but that Payne did not claim to have any rights and he did not buy it. There were four or five acres under fence at that time, part of it grown up with bushes. There was a little box house on it in 1902, and he says he lived there continuously about five years, raising a crop in 1903, consisting of potatoes, corn, cotton, sorghum, etc., and in 1904 and 1905 he made a crop there. "It was in 1906 that I moved my wife over to my father-in-law's and did contract work. My father-in-law's name was Uriah Smith. I moved over there about January 1, 1906, and did contract work that year, and did not live on the place at all that year, but Mr. Smith cultivated the place for me and raised a crop of goobers, oats, and sorghum, and used it as a general pasture. No one lived on the place that year, but Mr. Smith put in his crop at the usual time in the spring of the year. In 1907 I did not live on the place, but cultivated it myself. I lived at Mr. Smith's in 1907. * * * I had seven or eight acres in cultivation and under fence. I don't remember whether it was 1907 or 1908 that I lived at Uriah Smith's, but to the best of my recollection it was 1907 that I tore the old house down and moved it over to Uriah Smith's. I lived at Uriah Smith's that year, but cultivated the place myself. In 1908 there was no house on the place, but I cultivated it myself. In 1910 I built a new house. After the South Texas Development Company people were in there surveying, I built the new house. In 1909 I lived with Smith, but I cultivated the land and along in the summer—about August, I think, of 1910 — I built the new house and have been living there continuously since. When I stated in my evidence that I had lived on the place continuously for 11 years, I meant that I had held possession of the place and claimed it and made it my home, and had my stock there. I moved off the place and lived off of it one or two years, but I cultivated it. I rented the place only one year to Mr. Smith. * * * It was in 1906, while I was doing contract work, that I was told that Ed Payne had moved into the house on this place. He lived there only a short time, I don't remember how long. I knew my father-in-law would take care of my interest. Ed Payne did not live there over two or three months. I came back in February, 1907, and cultivated the land myself that year." He says, further, that his father-in-law, Smith, as his agent and tenant, gave Joe McDonald permission to move into the house; that he cultivated the land himself that year, but was not living there. He says that it was later than June, 1907, when McDonald moved into the house, because he sold him his sweet potato crop growing around the house, but he does not remember how long he lived there, but thinks it was during the summer and fall of that...