Steddum v. Kirby Lumber Co.

• Decision Date: 13 November 1912
• Parties: STEDDUM v. KIRBY LUMBER CO. et al.
• Court: Texas Court of Appeals

154 S.W. 273

STEDDUM v. KIRBY LUMBER CO. et al.

Court of Civil Appeals of Texas. Galveston.

November 13, 1912.

On Motion for Rehearing, January 30, 1913.

Appeal from District Court, San Augustine County; W. B. Powell, Judge.

Action by N. B. Steddum against the Kirby Lumber Company and another. From a judgment for defendants, plaintiff appeals. Affirmed.

W. J. Townsend, of Lufkin, Foster & Davis, of San Augustine, H. B. Short, of Center, G. P. Dougherty, of Beaumont, and Wm. McDonald, Rufus Price, and E. A. Davis, all of San Augustine, for appellant. Hightower, Orgain & Butler, of Beaumont, and Andrews, Ball & Streetman, of Houston, for appellees.

PLEASANTS, C. J.

This is an action of trespass to try title and for partition, brought by the appellant against the Kirby Lumber Company and the Houston Oil Company. Plaintiff's petition, which is in the usual form in actions of trespass to try title, seeks to recover against appellees the title and possession of an undivided one-half of a tract of 3,153 acres of land in San Augustine county, known as the Samuel Steddum survey, and also contains the following prayer: "And in the event it is shown, and the court so holds, that the defendants are entitled to the other undivided one-half of said tract of land not herein sued for, then plaintiff prays for partition between plaintiff and said defendants of the property in controversy." The defendants disclaimed as to all of the land in controversy, except certain portions thereof described in their answer, as to which they pleaded a general demurrer, plea of not guilty, pleas of limitation of three, five, and ten years, and plea of stale demand. Upon the trial of the case, after plaintiff had introduced his evidence and rested his case, the court, on motion of defendants, instructed the jury to return a verdict in their favor; and, upon return of such verdict, judgment was rendered that plaintiff take nothing, and that defendants recover of plaintiff the portions of the land in controversy claimed by them.

The evidence introduced by plaintiff, and upon which the court instructed the jury to find a verdict in favor of the defendants, is as follows:

"(1) A duly certified copy from the General Land Office of a headright certificate for one league and labor of land issued by the board of land commissioners of San Augustine county on February 1, 1838, to Samuel Steddum; the certificate being numbered 229.

"(2) A duly certified copy from the General Land Office of records of the traveling land board to detect fraudulent land certificates recommending on April 27, 1840, the said certificate for one league and labor issued to Samuel Steddum on February 1, 1838.

"(3) A duly certified copy from the General Land Office of a duplicate headright certificate issued to Samuel Steddum for one league and labor of land, dated December 19, 1843, and is based on and refers to the original certificate for one league and labor, numbered 229, issued to Samuel Steddum on February 1, 1838.

"(4) A duly certified copy from the General Land Office of a duplicate unlocated balance certificate issued to Samuel Steddum on May 22, 1851, for 17,801,350 square varas of land. This certificate is based on and refers to the original headright certificate numbered 229, issued to Samuel Steddum on February 1, 1838.

"(5) A duly certified copy from the Land Office of a certificate of survey locating the said second duplicate certificate described above on the land in controversy on February 19, 1852, with field notes of the survey as returned to the Land Office.

"(6) The deposition of Mrs. Mary E. Coulter and Mrs. Martha Jane Earl. Mrs. Mary Coulter was the second wife of Samuel Steddum, the father of plaintiff, and plaintiff's mother. The testimony of these two witnesses established, or tended to establish, that Samuel Steddum and his first wife. Phœbe Steddum, were living together as husband and wife in San Augustine county on February 1, 1838, when the certificate for one league and labor of land was issued to him; that Samuel Steddum and his wife, Phœbe, had three children at the time of their divorce and separation in 1839; that these three children were boys, and that they all died without issue; that Samuel Steddum was married a second time in 1848 to Mary E. Venett, and had one child by the second marriage, to wit, a son N. B. Steddum, who is the plaintiff in this suit; that Samuel Steddum died in 1848, and his widow afterwards married Hiram W. Coulter that Phœbe Steddum, the first wife of Samuel Steddum, died in 1850; and that all of the children of the first marriage died after the deaths of their parents.

"(7) A certified copy of a decree of divorce, rendered in the district court of San Augustine county, on September 10, 1839, in the case of Samuel Steddum v. Phœbe Maria Steddum, the copy of the judgment being as follows:

                                "`Tuesday, Sept. 10, 1839
                

"`On Petition for Divorce.

"`Samuel Steddum v. Phœbe Maria Steddum.

"`This day came the plaintiff by his attorneys, and the defendant not appearing, and the court being satisfied that there would be no defense made in this case, it was submitted to a jury of good and lawful men, to wit:

                1. James W. Bullock.      7. J. H. McKnight
                2. Thomas D. Dendrick.    8. Thomas H. Gardner
                3. A. Huston.             9. J. F. Palmer
                4. Robt. H. Martin.      10. F. P. Cabler.
                5. William J. Hamlett.   11. William Loyd.
                6. James L. Dickey.      12. Henry W. Sublett.
                

"`Who being impaneled, charged, and sworn the truth to speak, and upon their oath do say: "We, the jury, find against the defendant the act of adultery, as set forth in the petition. A. Huston, foreman." It is therefore ordered and decreed by the court that the bonds of matrimony hitherto existing between the said Samuel and Phœbe Maria Steddum be dissolved, and that a divorce a vinculo matrimonii be granted, ordered and decreed unto the said Samuel Steddum from the said Phœbe Maria Steddum, and that the said decree is hereby rendered perpetual and forever irrevocable. And it is further ordered by the court that the plaintiff pay all costs in and about this behalf expended and execution issue,' etc."

Appellant states in his brief that the trial court granted appellees' motion to instruct a verdict in their favor on the ground that, under the law in force in Texas in 1839, a married woman, by commiting the act of adultery, forfeited to her husband her interest in their community property, and that the recitals in the divorce decree, put in evidence by plaintiff, established that Phœbe Steddum, under whom plaintiff claims, was guilty of adultery; and, her interest in the land having been thereby forfeited to her husband, plaintiff has no title. All of appellant's assignments of error assail this holding of the trial court. The authorities cited in support of the contention that the court erred in his construction of the Spanish or Mexican Codes in force in Texas in 1839 are not accessible to us, and we have reached no conclusion upon this question; its decision being unnecessary to a proper disposition of this appeal.

It does not appear from the record upon what ground the trial court sustained appellees' motion to instruct the jury to return a verdict in their favor; but, if it did so appear, the judgment could not be reversed, if appellees were entitled to the instruction upon any ground disclosed by the record. If, upon the evidence disclosed by the record, the court should have instructed a verdict for the defendants, the fact that the reason assigned by him for such instruction was not sound would not authorize a reversal of the judgment.

As before shown, plaintiff's petition seeks to recover an undivided one-half of the tract of land therein described. Upon this pleading, plaintiff would only be entitled to recover by a prima facie showing of title to all of the land claimed by him, or to some definite interest less than the interest claimed in his petition. Unless the evidence shows to what interest in the land plaintiff has title, the court was not authorized to render any judgment in his favor, and the jury were properly instructed to return a verdict for the defendant. Baldwin v. Goldfrank, 88 Tex. 261, 31 S. W. 1064. In the case cited, our Supreme Court says: "Our statute requires that, if the plaintiff in an action of trespass to try title sues for an undivided interest, he shall set out in his petition the amount of the interest claimed by him. Revised Statutes, art. 4786. It has been ruled that he may recover a less interest than that alleged; but he should establish his title to the interest sued for, or to some less interest definite in extent. He cannot recover by proving that he owns some undivided portion of the land, without establishing what that portion is. The judgment ought to determine the rights of the parties." It seems that the rule that, as against a naked trespass, a plaintiff, showing title to an undivided interest in land, may recover the whole of the tract is not applicable where the plaintiff only sues for an undivided interest. He cannot recover more than he sues for; and, by restricting his claim to an undivided interest, he admits that he has no right to the title or possession of the whole, and cannot evict even a trespasser from that interest in the land not claimed by him and not involved in the suit. It is also held "that, when a cotenant seeks to recover of a defendant exclusive possession of land, he should prove not only his own title to an undivided interest, but also that the defendant has no title to any interest." Davidson v. Wallingford, 88 Tex. 619, 32 S. W. 1030. There is nothing in the record to show what title defendants had or claimed in the land. The plaintiff's pleading does not challenge defendants' title to an undivided one-half of the land, and there is nothing in the evidence introduced which tends to show that defendants were naked trespassers; and under...