Thompson v. Slater

• Citation: 34 S.W. 357
• Parties: THOMPSON v. SLATER et ux.
• Decision Date: 12 February 1896
• Court: Court of Appeals of Texas

34 S.W. 357

THOMPSON v. SLATER et ux.

Court of Civil Appeals of Texas.

February 12, 1896.

Appeal from district court, Limestone county; Rufus Hardy, Judge.

Action by Thomas Slater and wife against J. W. Thompson. There was a judgment for plaintiffs, and defendant appeals. Reversed.

Farrar, Kinkaid & Williams and Cobb & Jackson, for appellant. C. S. Bradley, for appellees.

JAMES, C. J.

Appellees, owners of a tract of land, about 1881 executed to appellant a deed describing certain land (a part of their tract), with given field notes, calling for 80 acres, more or less. The field notes embraced considerably more than that quantity, and the excess, a strip 184 by 880 varas, is the subject of this controversy. At the time of the sale a fence ran in a diagonal direction through this strip, up to which fence the vendor continued to have possession after the sale. The petition contained averments of fraud and mistake in the making of the deed, and prayer for a reformation of the same to make it describe the 80 acres which plaintiffs assert was intended to be in fact sold, and to remove the cloud from their title to said strip, and restoring them to possession thereof. In addition to what is stated above, they alleged that they were entitled to said land, notwithstanding the deed, because they had occupied it for a time and in a manner that barred any claim of defendant thereto. The answer was a general denial, and defendant himself pleaded the statute of limitation of 10 years, and that any possession plaintiffs may have had of any part of the land in question was by consent of defendant, and in recognition of his title. The court first submitted issues to the jury, who found for the defendant on all the issues. Upon motion for new trial the court set aside the verdict, and rendered judgment in favor of the plaintiff for all the land he claimed, up to the fence, and defendant has appealed.

It is apparent from appellees' brief, and the entire record, that the judge concluded that plaintiff was shown by the testimony to be entitled to so much of the strip as lay on his side of the fence by virtue of adverse possession of 10 years. There was, however, evidence that would admit of the opposite conclusion. Defendant testified that, when he was negotiating for the land, it was agreed between him and plaintiff that the fence should remain where it was till it should become necessary to rebuild it, and that then it should be moved to the line (meaning the...