Starr v. Dunbar, 4452.

• Decision Date: 12 March 1934
• Docket Number: No. 4452.,4452.
• Citation: 69 S.W.2d 816
• Parties: STARR v. DUNBAR et al.
• Court: Texas Court of Appeals

69 S.W.2d 816

STARR v. DUNBAR et al.

No. 4452.

Court of Civil Appeals of Texas. Texarkana.

March 12, 1934.

Rehearing Denied March 22, 1934.

Appeal from District Court, Gregg County; Will C. Hurst, Judge.

Suit by El Starr against T. J. Dunbar and another. From a judgment for defendants, plaintiff appeals.

Reversed and rendered, with directions.

Edwin M. Fulton and C. E. Florence, both of Gilmer, for appellant.

W. Edward Lee, of Longview, and H. S. Garrett, of Fort Worth, for appellees.

JOHNSON, Chief Justice.

This suit was filed June 8, 1932, by appellant, El Starr, against appellees, T. J. Dunbar and the Texas Company, seeking to recover an undivided interest to the amount of 31.9 acres in a described 105-acre tract of land in Gregg county, and for partition. Appellees pleaded not guilty and the several statutes of limitation. The case was tried to the court without a jury. From a judgment in favor of defendants (appellees) and against the plaintiff (appellant), the plaintiff, El Starr, has perfected his appeal.

Plaintiff's claim of title to the land is based upon his right of inheritance through and from his deceased wife and deceased child of a one-ninth undivided interest in the estate of G. W. Dunbar, deceased, same being a one-eighteenth undivided interest in the community estate of G. W. Dunbar, deceased, and his surviving wife, M. A. Dunbar. G. W. Dunbar and wife, M. A. Dunbar, owned a community estate of 570 acres of land, located in Upshur and Gregg counties; the 105 acres in controversy located in Gregg county being a part of which that constituted their homestead, and on which they had resided since about 1866. G. W. Dunbar died intestate May 6, 1888. He was survived by his wife, M. A. Dunbar, and nine children, constituting his sole heirs. Ada Dunbar, daughter of G. W. and M. A. Dunbar, was married to El Starr, one child was born unto this union, and the mother, Ada Starr, died intestate in 1894; the child died within a few weeks after the death of its mother, thus vesting in El Starr a one-ninth undivided interest in the estate of G. W. Dunbar, deceased. On August 18, 1899, the eight surviving Dunbar children, all of whom appear to have been of age or married, met at the old home place for the purpose of partitioning the land. The 570 acres, except 160 acres of the homestead on which the mother, M. A. Dunbar, lived, was divided into eight tracts or parts and each numbered. Corresponding numbers were placed in a hat and each of the eight children drew therefrom. Mrs. M. A. Dunbar, joined by the other children, executed to each of the eight children deeds to the respective tracts so drawn. E. L. Dunbar, a son, testified: "We met at Mother's to divide up this land. She said she was willing to divide up this land and we just left her a homestead of 150 acres or 160 acres. Well, we just numbered each tract of land, began numbering from one up to number eight, and put these numbers in a hat and each one drew out a number and that number stated what tract of land you got."

El Starr was present on this occasion, and knew about the drawing, but it does not appear that he was consulted or that he took any part in the division. The eight children placed their deeds of record and went into possession of their respective tracts; and they, or their grantees, have continuously since remained in peaceable and adverse possession thereof. No conveyance was executed to the 160 acres of the homestead left to Mrs. M. A. Dunbar, but she subsequently sold off 45 acres and 10 acres, and continued to occupy the remaining 105 acres as her homestead, and claimed title to it until she sold it to T. J. Dunbar shortly prior to her death in 1925. On November 18, 1925, Mrs. M. A. Dunbar Baker, joined by W. H. Baker, who was her husband at that time, by general warranty deed conveyed the 105 acres to appellee, T. J. Dunbar. The deed was duly recorded on November 19, 1925. On May 21, 1926, the heirs of G. W. Dunbar, deceased, executed a quitclaim deed to the 105 acres to T. J. Dunbar. El Starr did not join in these deeds. On July 18, 1928, T. J. Dunbar executed an oil and gas lease on the 105 acres to John W. Easterwood, which mineral interest is now held by the Texas Company.

That El Starr is entitled to recover an undivided interest amounting to 31 2/3 acres out of the 105 acres is not controverted, unless he is barred from so doing by one or both of appellees' pleas of five and ten year statutes of limitation (Rev. St. 1925, arts. 5509, 5510).

As to their plea of ten-year limitation, it is the contention of appellees: "Title by limitation ripened in M. A. Dunbar, a cotenant with El Starr, because notice of the hostile claim of M. A. Dunbar the tenant in possession, against the cotenant out of possession, El Starr, was given in 1899 by partitioning the land and placing the respective parties in possession thereof in the presence of appellant and the statutes of limitation began running from the time of such notice."

It is not thought that appellees' contention can be sustained, for the reason that, as to the 105 acres which she continued to occupy as her homestead, the relation of cotenancy did not exist between Mrs. M. A. Dunbar, the surviving widow, and El Starr, for want of right of possession in El Starr. Unity in right of possession is an essential element of tenancy in common. 11 C. J. §§ 2 and 3, p. 410, § 12, p. 419; 62 C. J. §§ 1 and 2, p. 408. It is testified that she claimed title to the homestead after it was "left" to her at the time of the division of the remainder of the land among the eight surviving children in 1899, but it does not appear that she at any time abandoned or relinquished her homestead rights in and to the 105 acres. It was a part of the homestead on which she and her husband lived at the time of his death. She continued to use and occupy it as her homestead until she sold it to appel...