Southern Lumber Co. v. Kirby Lumber Corporation, 4233.

• Decision Date: 22 June 1944
• Docket Number: No. 4233.,4233.
• Citation: 181 S.W.2d 859
• Parties: SOUTHERN LUMBER CO. et al. v. KIRBY LUMBER CORPORATION.
• Court: Texas Court of Appeals

181 S.W.2d 859

SOUTHERN LUMBER CO. et al. v. KIRBY LUMBER CORPORATION.

No. 4233.

Court of Civil Appeals of Texas. Beaumont.

June 22, 1944.

Rehearing Denied July 13, 1944.

Appeal from District Court, Tyler County; Clyde E. Smith, Judge.

Trespass to try title by Kirby Lumber Corporation against the Southern Lumber Company and others. The trial court denied defendant's motion for an instructed verdict and granted plaintiff's motion for an instructed verdict, and defendants appeal.

Reversed and remanded for a new trial.

K. W. Denman, of Lufkin, and A. M. Huffman, of Beaumont, for appellants.

Fountain, Cox, Gaines & Wilcox, of Houston, for appellee.

COE, Chief Justice.

This is a trespass to try title suit in which Kirby Lumber Corporation, appellee, plaintiff in the trial court, sued Southern Lumber Company et al., appellants, defendants in the trial court, claiming title to a specific 160 acres of the George Clark one-third league survey, described by metes and bounds in their amended petition upon which they went to trial, containing the usual allegation of trespass to try title, and specifically plead the statute of limitations of 3, 5, 10 and 25 years, with the alternative plea for the title and possession of a defined 3.13-acre tract on said George Clark survey under the 10 year statute of limitations, alleging such tract to be a correct description of the boundaries of its improvements on such survey.

The appellants replied to appellee's pleadings with a general denial and plea of not guilty, and pleas of estoppel.

At the close of the testimony, both appellants and appellee filed and presented to the court motions for an instructed verdict. The court denied and refused appellants' motion. The appellee's motion requested the court to instruct the jury to return a verdict in its favor for the title to and possession of an undivided 52½ acres in the 160-acre tract. The court granted the motion of appellee and instructed the jury to return a verdict for the appellee for the title to and possession of an undivided 52½ acres in the 160-acre tract, and the jury returned a verdict in accordance with such instructions. Upon the finding of the jury, the court entered judgment for the 52½ acres in favor of appellee.

All the other issues in the case presented by the pleadings of the parties, relating to timber cut and removed, were submitted to the jury and determined. Neither party makes any complaint of these findings. The appellants have duly perfected their appeal to this court.

John B. Lockhart, Sr., cultivated a field in the N. E. corner of the George Clark one-third league survey in Tyler County, Texas, for a period of 25 or 30 years prior to his death in March, 1894. He was survived by his wife, Mary Lockhart, a son, John Lockhart, Jr., and three daughters, Mary Grimes, wife of G. W. Grimes, Elizabeth Ann (Betty) Lockhart and Mattie Lockhart. After the death of his father, John Lockhart, Jr., lived in the house, which was located on the Ives survey immediately north of and adjoining the George Clark survey, with his mother and unmarried sisters until his death on December 30, 1909, and together with his sisters cultivated the field on the Clark survey until 1905, at which time it was abandoned.

On July 29, 1903, John Lockhart, Jr., executed a deed to J. S. Pate and N. A. McNeil covering 100 acres of land out of the south part of the 160-acre tract involved herein.

On September 6, 1910, G. W. Grimes, Mary Grimes, Mrs. Mary Lockhart, Betty Lockhart, Mattie Lockhart and J. S. Pate gave a power of attorney to a lawyer named Joe W. Thomas, giving him power to sue for and recover the 160 acres of land involved in this suit, which was located in the N. E. corner of the George Clark one-third league, so as to include the improvements of the grantors situated in said N. E. corner. The power of attorney further provided that in consideration of the service performed and to be performed by said attorney "we do hereby grant, sell and convey, and by these presents have granted, sold and conveyed unto the said Joe W. Thomas 1/4 undivided interest in and to the above described 160 acres of land owned and claimed by us, and 1/4 of all proceeds from sale or amount recovered by suit of said land and premises."

On October 29, 1911, Betty Lockhart died without issue and without having been married, and Mrs. Mary Lockhart, surviving widow of John B. Lockhart, Sr., died intestate April 8, 1912.

In the meantime N. A. McNeil had died, leaving surviving his wife, Nannie McNeil, who later married Pederson, and a daughter, Mary Bell McNeil.

On August 30, 1912, Mattie Lockhart acknowledged tenancy to John Henry Kirby to that portion of the George Clark 1476-acre survey which she then held possession, acknowledging in such instrument to John H. Kirby that he was the owner of said land, and agreed to look after and protect from depredation as far as she could the premises so occupied by her, and agreed to deliver possession thereof to John H. Kirby, or his assigns, whenever requested by him or them so to do, and further stated that she did not claim any right, title or interest in and to said land except as a tenant at will and by sufferance of John H. Kirby.

On March 8, 1913, Mrs. Nannie Pederson, C. A. Pederson, Mary Bell McNeil, J. S. Pate, Joe W. Thomas, G. W. Grimes and Mary Grimes brought suit against John H. Kirby and Willie Hyman in the district court of Tyler county, in cause No. 3245, in trespass to try title to recover the land involved herein, claiming that they had matured title to same under the 10 years statute of limitation. Mattie Lockhart was not made a party to that suit.

On August 13, 1913, judgment was entered in said cause, based upon the verdict of the jury, which found that John B. Lockhart, Sr., had perfected limitation title to the 160-acre tract of land. However, the judgment only awarded to plaintiff the title and possession of an undivided 107½ acres in the 160-acre tract. Thereafter, on March 4, 1914, John Henry Kirby et al. gave to Mrs. Nannie Pederson, Mary Bell McNeil, J. S. Pate, Joe W. Thomas and Mrs. Mary Grimes a quitclaim deed covering all of the grantors' right, title and interest in and to the 160-acre tract of land involved in that suit. The appellants hold by inheritance and under a chain of conveyances from Mrs. Nannie Pederson, Mary Bell McNeil, J. S. Pate and Joe W. Thomas and Mrs. Mary Grimes.

On October 28, 1914, Mattie Lockhart conveyed to J. A. Mooney, by general warranty deed, an undivided 53½ acres in the 160-acre tract involved in the case of Pederson et al. v. John H. Kirby et al. Kirby Lumber Corporation, appellee herein, has succeeded to the title of J. A. Mooney by a regular chain of conveyances.

Appellee urged eight different reasons in support of its motion for an instructed verdict, the substance of which is to the effect that the undisputed evidence showed that John B. Lockhart, Sr., perfected a limitation title to the 160 acres involved in this suit prior to his death in 1894, and that appellee being the owner of Mattie Lockhart's title thereto was entitled to recover an undivided interest therein of 52½ acres. That appellants were estopped by the judgment in the case of Mrs. Nannie Pederson et al. v. John H. Kirby et al., from now asserting that John B. Lockhart, Sr., did not have title by limitation to the 160-acre tract of land involved in this suit, for the reason that they had represented to the court in the Pederson case that he had so perfected title thereto. That John Henry Kirby, nor any of the other grantors, had any title to the land involved in this suit on the date of the deed from John Henry Kirby et al. to Mrs. Nannie Pederson et al., and in the alternative that the grantees in such deed being cotenants with Mattie Lockhart of the land covered thereby that the acquisition of such outstanding title by such cotenants inured to the benefit of Mattie Lockhart and vested in her an undivided 52½ acres in the 160-acre tract described in the plaintiff's petition; that the acts of the plaintiffs in the case of Mrs. Nannie Pederson et al. v. John H. Kirby et al. establishing that John B. Lockhart,...