Viduarri v. Bruni, 10958.

• Decision Date: 02 July 1941
• Docket Number: No. 10958.,10958.
• Citation: 154 S.W.2d 498
• Parties: VIDUARRI et al. v. BRUNI et al.
• Court: Texas Court of Appeals

154 S.W.2d 498

VIDUARRI et al. v. BRUNI et al.

No. 10958.

Court of Civil Appeals of Texas. San Antonio.

July 2, 1941.

Rehearing Denied October 1, 1941.

Appeal from District Court, 111th District, Webb County; R. D. Wright, Judge.

Action of trespass to try title by Antonio H. Bruni and others, the executors and testamentary trustees under the last wills and testaments of A. M. Bruni and wife, Consolacion Bruni, together with the devisees under the wills, against Lucio Viduarri and others, who claimed to be some of the heirs of Don Jose Vasquez Borrego, the original grantee, wherein the defendants filed a cross-action and brought in new parties, A. T. Canales and others, praying for judgment against all parties. From a judgment against them on the main suit as well as on the cross-action, Lucio Viduarri and others appeal.

Judgment reversed in part, and cause remanded for a new trial, and in other respects judgment affirmed.

Greenwood, Moody & Robertson, of Austin, and E. J. Dryden, of Laredo, for appellants.

Hicks & Dickson and James T. Nesbitt, all of Laredo, and D. A. McAskill and T. M. West, both of San Antonio, for appellees.

NORVELL, Justice.

This is an action of trespass to try title involving certain lands in the Jose Vasquez Borrego Grant situated in Webb and Zapata Counties, Texas. Questions concerning the validity of this grant, its boundaries and title to various portions thereof have been before the appellate courts of this State on several occasions. See Von Rosenberg v. Haynes, 85 Tex. 332, 20 S.W. 143; Texas Mexican Railway Company v. Uribe, 85 Tex. 386, 20 S.W. 153; State v. Bruni, 37 Tex.Civ.App. 2, 83 S.W. 209, writ refused. Martinez v. Bruni, Tex.Civ.App., 216 S.W. 655; Id., Tex.Com.App., 235 S.W. 549; Chacon v. Bruni, Tex.Civ.App., 125 S.W.2d 428, writ refused.

After the trial court had ordered a consolidation of numerous suits involving lands in the Borrego Grant, this case went to trial upon the first amended original petition of the plaintiffs below, who were Antonio H. Bruni and others, the executors and testamentary trustees under the last wills and testaments of A. M. Bruni and wife, Consolacion Bruni, together with the devisees under said wills. These parties will be hereinafter referred to as the Bruni appellees. The petition was in the statutory form of trespass to try title and contained special pleadings of the five, ten and twenty-five year statutes of limitation. Articles 5509, 5510, 5519 and 5519a, Vernon's Ann. Civ.Stats. Thirteen tracts of land were specifically described by metes and bounds in the petition. Numerous persons were made defendants including the appellants, Lucio Viduarri and others, who claim to be some of the heirs of Don Jose Vasquez Borrego, the original grantee.

Appellants disclaimed all interest in two tracts described in the petition, pleaded not guilty as to the remaining tracts, and by way of cross-action brought in new parties, A. T. Canales and others (referred to in the briefs as the West clients), praying for judgment against all parties establishing their asserted undivided interest in eleven of the tracts described in the petition, as well as certain additional tracts of land described in the cross-action.

Trial was to a jury, but at the conclusion of the taking of evidence the trial court discharged the jury and rendered a judgment against the appellants upon the main suit as well as the cross-action. It is not necessary to state further details of the judgment rendered, as appellants' assignments of error can not be construed as attacking any part of the trial court's judgment, except as it relates to the eleven tracts described in the petition, which are claimed by the Bruni appellants. The issues to be determined by this Court are those in dispute between appellants, on one hand, and the Bruni appellees, upon the other.

The eleven tracts involved in this appeal are out of the Corralitos and Dolores subdivisions of the Borrego Grant. Appellants disclaimed as to the two tracts situated in the San Ygnacio subdivision. As pointed out in Chacon v. Bruni, supra, Fernando Borrego, a son of the original grantee, acquired title to the San Ygnacio, which is not involved in this appeal. We are here concerned with the Viduarri title to the Corralitos and Dolores. There seems to be some dispute concerning the extent of the interest of Jose Fernando Viduarri, a grandson of the original grantee and a son of Manuela Borrego de Viduarri, who was a daughter of the original grantee. The contention is made that Jose Fernando Viduarri acquired the Corralitos by gift from his grandfather. This is countered by the contention that the only interest acquired by Jose Fernando Viduarri came through his mother, Manuela Borrego de Viduarri. The sustaining of one of these contentions or theories would have some bearing upon the extent of the undivided interests held by certain appellants in the event that it should be determined that they possessed some interest. This matter is however deemed immaterial to this appeal. This is not a partition suit, but an action of trespass to try title. The Bruni appellees, as plaintiffs below, assumed the burden of proving that they owned the entire title to the eleven tracts involved. The trial court necessarily held that the Bruni appellees had sustained this burden as to all of said tracts. It follows that if the trial court be incorrect in this holding the judgment can not stand, even though the undivided interest of certain appellants be actually less than that contended for under their theory of the case.

Upon the trial below it was agreed that a certain family tree correctly set forth the heirs and descendants of Jose Vasquez Borrego, the original grantee. The family tree shows that appellants or certain of them were descendants of Borrego through Manuela Borrego de Viduarri. From the year 1885 until his death, in 1931, A. M. Bruni purchased, from time to time, the interests of various persons who were, or purported to be, heirs of the original grantee. After Mr. Bruni's death, his executors, testamentary trustees and devisees purchased additional interests, or at least acquired several additional deeds purporting to convey interests in the grant. It seems to be conceded that the Bruni appellees, through A. M. Bruni, acquired on an acreage basis more than eighty per cent of the Corralitos and Dolores subdivisions. It also appears that neither A. M. Bruni nor the Bruni appellees acquired "paper title" to all of the interests claimed by appellants, that is, it was not shown that such interests as appellants would be entitled to as heirs were acquired by Bruni or those holding under him, by written instruments duly recorded or by unrecorded written instruments introduced in evidence.

The Bruni appellees contend that any deficiencies of the paper title are cured by (1) a so-called equitable title, (2) the five, ten and twenty-five year statutes of limitation, and (3) the doctrine of presumed grant or deed.

Appellants, by their assignments of error, affirmatively assert that the judgment can not be sustained as a matter of law under any of the theories above mentioned.

We first consider the theory of "equitable title" advanced by the Bruni appellees. This contention is stated in the brief of said appellees as follows: "That A. M. Bruni prior to his death purchased, fenced, improved at large expense, and remained in continuous and exclusive possession for more than thirty years of more land than is now enclosed in the pastures claimed by Bruni appellees out of the Dolores and Corralitos Subdivisions and said Bruni appellees had an equitable title to said premises at the time of the filing of this suit and long prior thereto."

For the purpose of considering this contention, it may be conceded that the pastures inclosed by Bruni's fences did not include a greater amount of acreage than Bruni would be entitled to, based upon an acreage basis, by reason of his purchases of undivided interests in the Corralitos and Dolores subdivisions. It seems that "a tenant in common who has improved the land, not for the purpose of embarrassing his co-tenants, is entitled to have them set apart to him, providing it can be done in justice to his co-tenants." Whitmire v. Powell, 103 Tex. 232, 125 S.W. 889, 890. See, also, 32 Tex.Jur. 171, § 24. This is, however, an equitable right as distinguished from an equitable title. It is an equity upon which a court may base a judgment in a proper suit, to-wit, a partition suit in which all co-tenants are parties so that the court may adjust the equities between them.

While a plaintiff in trespass to try title may obtain equitable relief upon proper pleadings filed in conjunction with the statutory count, it is well settled that a plaintiff under the statutory allegations alone must show a superior title which may be either legal or equitable in nature. The distinction between an equitable title and an equitable right is clearly established by the Texas authorities. Moore v. Snowball, 98 Tex. 16, 81 S.W. 5, 66 L.R.A. 745, 107 Am.St.Rep. 596; McCampbell v. Durst, 15 Tex.Civ.App. 522, 40 S.W. 315, 320, application for writ of error dismissed by the Supreme Court, 91 Tex. 147, 40 S.W. 955; Carl v. Settegast, Tex.Com.App., 237 S.W. 238; Groesbeeck v. Crow, 85 Tex. 200, 20 S.W. 49.

Here Bruni appellees are in effect asserting an alleged right of equitable partition or some right similar thereto. The doctrine of equitable partition is fully discussed in the case of Thomas v. Southwestern Settlement & Development Co., 132 Tex. 413, 123 S.W.2d 290, 297, opinion by Judge Smedley, wherein it is stated that: "When the nonjoining cotenant sues for partition equity will require, so far as it can be practicably done, consistently with the rights of the plaintiff in making the partition that the partition be so made as to set aside to the grantee in the deed from the one cotenant, especially when he has...