Terrill v. Tuckness, 04-97-00877-CV

• Decision Date: 23 September 1998
• Docket Number: No. 04-97-00877-CV,04-97-00877-CV
• Citation: 985 S.W.2d 97
• Parties: Paul TERRILL and Gracie Terrill, Appellants, v. Ruth TUCKNESS, Dorothy Epperson, and Jo Nell Epperson Pool, Appellees.
• Court: Texas Court of Appeals

Page 97

985 S.W.2d 97

Paul TERRILL and Gracie Terrill, Appellants, v. Ruth TUCKNESS, Dorothy Epperson, and Jo Nell Epperson Pool, Appellees.

No. 04-97-00877-CV.

Court of Appeals of Texas,

San Antonio.

Sept. 23, 1998.

Paul M. Terrill, III, Hazen & Terrill, P.C., Austin, Scott Roberts, San Antonio, for Appellant.

Patrick M. Dooley, Dooley & Hoerster, L.L.P., Fredericksburg, Geoffrey D. Weisbart, Cynthia Olson Bourland, Hance Scarborough Wright, Austin, for Appellee.

Before HARDBERGER, C.J., and RICKHOFF and ANGELINI, JJ.

OPINION ON APPELLANTS' MOTION FOR REHEARING

HARDBERGER, Chief Justice.

This court's opinion of July 22, 1998, is withdrawn and the following opinion and judgment are issued in its place. In our original opinion, we reversed and rendered judgment in favor of appellants, Paul and Gracie Terrill, in their trespass to try title suit. Upon consideration of the Terrills' motion for rehearing in this case, we amend or opinion and judgment to remand the cause

for a determination of whether attorneys fees and damages should be awarded and, if so, in what amount.

NATURE OF THE CASE

In this appeal from a suit to try title, we determine the ownership of a narrow strip of land along Crabapple Creek in Gillespie County. Our determination involves two issues: the construction of the deeds purporting to pass title to the land, and whether record title, if established, has been interrupted by adverse possession. Appellants, the Terrills, argue that their chain of title unambiguously transfers ownership of the creek bank to them and that appellees, the Tuckness defendants, have not proven that they adversely possessed the land. Because we agree with the Terrills on both points, we reverse the judgment below and render judgment for the Terrills.

FACTS AND PROCEDURAL HISTORY

The disputed 2.2 acres, along with the surrounding land, was part of a large land grant from the State of Texas to Samuel Maverick in 1872. Crabapple Creek ran through the middle of this grant until 1881, when Mary Maverick, Samuel's wife, began dividing and selling the original grant. Two relevant chains of title emerge from these divisions: that leading to the Terrills' deed and that leading to the Tuckness defendants' deeds. The relevant tracts, until 1941, were unambiguously separated by the creek. The deeds called for possession to "the middle of the creek." At some point, a fence was erected to the east of and parallel to the creek, up on a high bank. The land west of this fence and to the middle of the creek bed is the subject of this suit.

From approximately 1911 until 1979, the landowners in both chains of title were related. From 1911 to 1943, the Tuckness defendants' predecessor in title was William Hohmann, who owned from the center of the creek to the west; William's brother, Theodore Hohmann, owned from the center of the creek to the east until 1941. In 1943, William conveyed the land to his son, Henry. In 1941, Theodore's, wife, Emma, transferred the property to her daughter, Ella Moehle, and Ella's husband David. Thus, the two tracts were owned by relatives in 1943: Ella Moehle and Henry Hohmann were cousins.

For reasons not reflected in the record and perhaps unknown, the 1941 deed from Emma Hohmann to Ella Moehle did not call to the middle of Crabapple creek, as prior deeds in the chain of title had. Instead, the deed called to the eastern bank of the creek and then north to a fence corner. That this change caused some confusion about record title to the tract is clear in the 1979 conveyance from Ella Moehle to Sam Douglass. Moehle ordered a survey of the property, requesting that the land "under fence" and the 2.2 acres of rocky creek bank, on the other side of the fence, be surveyed separately. The deed to Douglass reflected at least one change as a result of that survey. Because the new survey revealed a discrepancy between what Emma and Theodore Hohmann had taken by deed, 867 acres, and what they actually possessed, 893.5 acres, the new deed reflected the larger number. The deed also contained the call to the creek bank and then to a fence corner. In addition, while Moehle transferred the 893.5 acres to Douglass by warranty deed, she transferred the 2.2 acres by quitclaim.

In 1982, the Terrills purchased their property Sam Douglass. Douglass conveyed 893.5 acres to them by a warranty deed and, as Ella Moehle had done, quitclaimed the contested 2.2 acres. According to testimony of Paul Terrill, the couple used the property next to the creek periodically for recreational purposes: they hiked there, took their kids and grandchildren swimming there, and shot off fire works on the Fourth of July. The fence just above the creek had no gate for access to the water. Terrill testified that until 1986, he and his family walked over a log that was set up on the fence.

In 1986, Terrill put a gate in the fence. He testified that his grandchildren were old enough to require a substantial amount of water "equipment" when going to swim, and the gate became necessary in order to get everything down to the water. When Wilford Tuckness, Ruth Tuckness's husband, found the gate, he immediately boarded it up and erected a No Trespassing sign. Terrill Although the defendants did not plead ambiguity, the trial court raised the issue early in the trial and eventually found that, viewed together and as applied to the ground, the 1941 deed in the Terrill chain of title and the 1943 deed in the Tuckness defendants chain of title revealed a latent ambiguity. Therefore, extrinsic evidence was allowed on these conveyances, and the jury was asked to determine whether the 1941 deed conveyed the 2.2 acres and whether the 1943 deed conveyed them. The jury was also given questions on each of Texas's adverse possession statutes. The jury answered all questions in favor of the Tuckness defendants.

tried to contact the Tucknesses to work the problem out, but the Tucknesses refused to talk. Terrill then sued to establish his title to the 2.2 acres, relying on the deeds in his and the Tuckness defendants' chains of title.

The Terrills raise several points of error. Disposition of three of those points will resolve the case: whether the trial court erred in submitting the question of deed interpretation to the jury; whether the 1941 deed unambiguously conveyed title to the 2.2 acres, and whether the Tuckness defendants have gained title of the property through adverse possession.

DEED CONSTRUCTION AND AMBIGUITY

The construction to be given a deed is ordinarily a question of law. When a deed is intended as a complete memorial of a legal transaction, parol evidence is inadmissible to show prior or contemporaneous agreements relating to that transaction or to explain or vary the terms of the deed. Massey v. Massey, 807 S.W.2d 391, 405 (Tex.App.--Houston [1st Dist.] 1991), writ denied, 867 S.W.2d 766 (Tex.1993). However, if the intent of the parties as expressed on the face of the document is doubtful, a court may resort to parol evidence to resolve the doubt. Id.

Whether a deed is ambiguous is a question of law and is determined by "looking at the contract as a whole in light of the circumstances existing at the time the contract was entered into." Extraneous evidence is not to be considered in determining whether a contract is ambiguous, although latent ambiguity may be found when the land description in the deed is applied to the ground. Forest Park Properties of Arlington, Inc. v. Padgett, 323 S.W.2d 320, 322 (Tex.Civ.App.--Fort Worth 1959, writ ref'd n.r.e.).

Pleading Ambiguity

According to the Terrills, ambiguity is an affirmative defense that must be supported by pleadings. See TEX.R. CIV. P. 94. The Terrills objected to the admission of parol evidence, and they later objected to the questions asking the jury to engage in deed construction, on the grounds that, under Rule 94, the defendants had failed to plead ambiguity.

Under contract law, ambiguity must be pleaded. See Modern Exploration, Inc. v. Maddison, 708 S.W.2d 872, 876 (Tex.App.--Corpus Christi 1986, no writ). Ordinarily, rules of contract construction apply to deed construction. See Boland v. Natural Gas Pipeline Co. of Am., 816 S.W.2d 843, 844 (Tex.App.--Fort Worth 1991, no writ); Richard Gill Co. v. Jackson's Landing Owners' Ass'n, 758 S.W.2d 921, 925 (Tex.App.--Corpus Christi 1988, writ denied).

The Tuckness defendants argue that the law is different in trespass-to-try-title suits, where introduction of the deed introduces all issues relevant to deed construction. There, the Tuckness defendants claim, ambiguity need not be pleaded. Although they cite none, there is case law supporting this position. See Jacobs v. Chandler, 248 S.W.2d 825, 831 (Tex.Civ.App.--Amarillo 1952, no writ) (in trespass to try title suit, there is no need to plead ambiguity to support jury question on grantor's intent); Wyman v. Harris, 222 S.W.2d 297, 308 (Tex.Civ.App.--Beaumont 1949) (no pleading required for equitable relief, such as reformation, on basis of ambiguous deed).

However, there is also case law suggesting that pleading ambiguity of a deed is necessary. See Rutherford v. Randal, 593 S.W.2d 949, 952 n. 1 (Tex.1980) (holding that ambiguity must be pleaded unless the ambiguity is apparent on the face of the deed); Gibson v. Watson, 315 S.W.2d 48, 53 (Tex.Civ.App.--Texarkana 1958, writ ref'd n.r.e.) (where parties We believe the correct position is that latent deed ambiguity in a deed must be pleaded. If a jury is allowed to answer questions on deed construction without pleadings of ambiguity, the judgment of the court cannot comport with the pleadings. See TEX.R. CIV. P. 301. In addition, a plaintiff in a suit to try title is entitled to notice that he will be required to prove that his deed is unambiguous, or, if he loses on that issue, that he may have to call witnesses to show the facts and circumstances surrounding the execution of that deed.

did not plead ambiguity, look to...