Tasher v. Foster Lumber Co.

• Decision Date: 23 October 1947
• Docket Number: No. 4454.,4454.
• Citation: 205 S.W.2d 665
• Parties: TASHER et al. v. FOSTER LUMBER CO. et al.
• Court: Texas Court of Appeals

205 S.W.2d 665

TASHER et al. v. FOSTER LUMBER CO. et al.

No. 4454.

Court of Civil Appeals of Texas. Beaumont.

October 23, 1947.

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

Action in trespass to try title by Louise N. Tasher and others against the Foster Lumber Company and others. Judgment for defendants, and plaintiffs appeal.

Affirmed.

John T. Buckley, of Houston, and Jeff Cochran, of Cleveland, for appellants.

Vinson, Elkins, Weems & Francis, of Houston (C. M. Hightower, of Houston, of counsel), for appellees.

COE, Chief Justice.

This is a statutory trespass to try title action filed by the appellants, Louise N. Tasher, William Alan Neil, Dorothy Caroline Rudman, Charles Edward Neil, Jeff Cochran, John T. Buckley and Dan W. Jackson, against the appellees, Foster Lumber Company, Lena Combes, George Combes, Frank or Frank E. Combes, Virginia Combes Bond, Samuel Bond, Harriette Combes Spence and husband, Edward Spence, Vernon M. Combes, Jr., individually, and as executor of the estate of Vernon M. Combes, Sr., Milton A. Combes, Olive A. Houghton and Atlantic Refining Company, in the District Court of Montgomery County, Texas, to recover the title to and possession of an undivided one-half interest in and to tracts of land in the T. J. Williams Headright League and the Presley Gill Survey in Montgomery County, Texas.

Appellants went to trial on their Third Amended Original Petition, which was filed November 1, 1946. This petition bore the following endorsement: "This suit is brought in trespass to try title as well as for damages."

Appellants alleged that Louise N. Tasher, William Alan Neil, Dorothy Caroline Rudman and Charles Edward Neil were the only surviving heirs of Nellie Neil Combes, who died in Colorado on the 15th day of January, 1931, and that no administration was taken out on the estate of Nellie Neil Combes, nor was there necessity therefor; and that they were the owners of a one-half undivided interest in the tracts or parcels of land by virtue of being the only surviving heirs of said Nellie Neil Combes, deceased, and that they assert title to such undivided one-half interest as a part of the community estate acquired by said Nellie Neil Combes and F. A. Combes, deceased. Date of ouster by defendants was alleged as January 2, 1943.

It was specifically alleged by appellants that Nellie Neil Combes, wife of F. A. Combes, owned a one-fourth community interest in the land and that said F. A. Combes owned a community one-fourth interest in the land under deed from W. L. Rogers to F. A. Combes and S. M. Combes, dated the 18th day of January, 1905, and that S. M. Combes was the owner of an undivided one-half interest therein. It was further alleged that the one-half interest S. M. Combes acquired by said deed passed through John C. Browder, administrator of the estate of S. M. Combes, deceased, by virtue of a judgment in favor of the heirs of Frank A. Combes; and that as Nellie Neil Combes was not a party to the judgment against the estate of S. M. Combes, deceased, the sale made under said judgment was for her use and benefit and that, therefore, she acquired title to an additional one-fourth undivided interest through the sale under the S. M. Combes judgment.

It was further alleged that the defendant, Foster Lumber Company, cut and removed the greater portion of the merchantable timber on the land with full knowledge of the rights of the appellants to their damage in the sum of $150,000.

The prayer was for the title and possession of one-half of the community interest of Nellie Neil Combes to the tracts of land, for writ of possession, for damages against the Foster Lumber Company for the manufactured value of one-half of the timber, and for general and special relief.

The Atlantic Refining Company, one of the original defendants, filed a declaimer.

The other defendants, the appellees here, went to trial on their First Amended Original Answer, consisting of a plea of not guilty, general denial, and the two, three, four, five, ten and twenty-five year statutes of limitations; laches and stale demand, estoppel, and bona fide purchasers.

At the conclusion of the testimony appellees filed and presented a motion for instructed verdict, which was by the court granted, and judgment was entered in favor of appellees that the appellants have and recover nothing as to the land and premises sued for.

Appellees' motion for instructed verdict was based upon the following grounds: (1) The plaintiffs failed to offer any testimony describing or locating on the ground the land sued for; (2) the plaintiffs did not connect themselves with the alleged common source of F. A. Combes and S. M. Combes, nor did they offer proof to show that the title of the defendants out of the claimed common sources was inferior, and plaintiffs failed to show any title out of the claimed common source into the defendants, Lena Combes, George Combes, Virginia Combes Bond, Samuel Bond, Harriett Combes Spence, Edward Spence or Vernon M. Combes, Jr., (3) plaintiffs having shown a sale of land out of the estate of S. M. Combes, deceased, through John C. Browder, administrator, for cash, failed to show any claim or title to that interest in the land; (4) there was no evidence to support the allegations of plaintiffs that in the proceedings in the case of M. L. Combes, Administrator of the Estate of F. A. Combes, Deceased, V. S. M. Combes and the sale of the land thereunder any of the purchasers at such sale acted as trustee for the plaintiffs; (5) there was no proof whatsoever that the defendants and particularly the defendant, Foster Lumber Company, were not bona fide purchasers; (6) there was no proof that Nellie Neil Combes advanced the money for, or that F. A. Combes used the money or property of Nellie Neil Combes to acquire an interest in the property; and (7) there was no proof whatever that F. A. Combes was a resident of Texas on January 18, 1905, but the uncontradicted proof was that said F. A. Combes was a resident of Denver, Colorado, on such date, and, under the laws of Colorado, the property so acquired was the separate property of F. A. Combes.

The plaintiffs, appellants, also filed a motion for instructed verdict which was overruled by the court.

Appellants made no attempt to establish title from the sovereignty of the soil or under any statute of limitation, but undertook to recover under the doctrine of common source of title.

In an effort to show that appellants and appellees claim under a common source of title to the land in controversy, appellants offered in evidence the Patent of the two surveys involved; a deed from W. L. Rogers to F. A. Combes and S. M. Combes conveying portions of said survey, including the land sued for by appellants dated January 18, 1905; proceedings had in the estate of S. M. Combes in San Jacinto County, Texas, including the appointment of John C. Browder, administrator of said estate, and order of the court directing sale of the real property of said estate for cash; report of sale by said administrator showing sale made in obedience to the order of the court and deed of administrator for the sum of $16,000 to M. L. Combes, Frank Combes, Milton A. Combes, Vernon M. Combes, Olive B. Houghton and Lottie C. Carpenter dated February 29, 1936; additional proceedings had in the estate of S. M. Combes in said court including supplemental inventory and appraisement, administrator's application to sell certain real estate, order of the court approving application to sell and ordering that said tract of land be sold by said administrator at private sale for cash; administrator's report of sale stating that said property had been sold for a fair price, to-wit, $750 cash; order of court confirming sale and deed of the administrator to M. L. Combes, Frank Combes, Milton A. Combes, Vernon M. Combes and Olive B. Houghton, dated September 1, 1936. These two deeds conveyed all the interest of S. M. Combes, deceased, to the lands involved in this suit; general warranty deed from M. L. Combes, Frank Combes, Milton A. Combes and Olive B. Houghton to Foster Lumber Company, dated September 21, 1938, for the sum of $11,580, conveying various tracts of land in Montgomery, San Jacinto and Liberty counties, including the land in controversy, reserving to the grantors a one-half interest in and to the oil, gas and other minerals in, on and under said lands; deed from Lottie C. Combes and husband to Frank Combes, M. L. Combes, Vernon M. Combes, M. A. Combes and Olive B. Houghton, all of the grantors' interest in the Samuel Lusk, Peter Whitaker, R. G. Hamley and A. Martin Surveys in San Jacinto County, Texas, and the T. J. Williams League in Montgomery and Liberty counties and the Presley Gill Survey in Montgomery county, which deed is dated March 23, 1936; affidavit of Vernon M. Combes showing M. L. Combes, Frank Combes, M. A. Combes, Olive B. Houghton, Lottie C. Carpenter and the affiant, Vernon M. Combes, as the heirs of F. A. Combes, deceased; the divorce decree of F. A. Combes and his first wife, Caroline S. Combes, dated May 25, 1901; application of Frank A. Combes shown as being a resident of Houston, Texas, to marry Nellie S. Neil and certificate of marriage of Rev. Nona L. Brooks showing that he solemnized the rites of matrimony between Frank A. Combes of Denver, in the county of Arapahoe, in the State of Colorado, and Nellie S. Neil of Denver, in the County of Arapahoe, in the State of Colorado, in the presence of Martha C. Rouse and lone W. Langley on the 15th day of October 1902; the evidence further shows that Nellie S. Neil was formerly married to Charles D. Neil; that Charles D. Neil died January 14, 1931; and that there were five children born to Charles D. Neil and Mrs. Neil, and that four of such children are now living; that the four children of Charles D. Neil and Nellie Neil living are Charles Neil, Allen Neil, Dorothy Rudman, her husband is dead, and ...