Wagers v. Swilley, 12049.

• Decision Date: 05 May 1949
• Docket Number: No. 12049.,12049.
• Citation: 220 S.W.2d 673
• Parties: WAGERS v. SWILLEY et al.
• Court: Texas Court of Appeals

220 S.W.2d 673

WAGERS v. SWILLEY et al.

No. 12049.

Court of Civil Appeals of Texas. Galveston.

May 5, 1949.

Rehearing Denied May 26, 1949.

Appeal from District Court, Harris County; William M. Holland, Judge.

Action in trespass to try title to land by W. S. Swilley, since deceased, and others, against W. H. Wagers, wherein Louise Bingle Swilley, continued to prosecute the action in her individual capacity after death of W. S. Swilley, deceased, and in her capacity as independent executor of the estate of deceased. From an adverse judgment, defendant W. H. Wagers appeals.

Judgment affirmed.

W. J. Knight, Houston, for appellant.

Hamblen, Bobbitt & Hamblen, Houston, W. P. Hamblen, Jr., Houston, for appellees.

CODY, Justice.

This is an action in trespass to try title to 235.36 acres of land out of the western end of lots 4, 5, 6, 7 and 8 of the Young Subdivision of the Victor Blanco Five League Grant in Harris County. It was originally brought April 12, 1946, by W. S. Swilley, joined by his wife and three daughters against W. H. Wagers. Two of the daughters were married, and their husbands were also parties plaintiff. W. S. Swilley died testate in the following September, naming his wife, Louise Swilley, as independent executrix. Mrs. Swilley duly qualified, and in addition to continuing to prosecute the suit in her individual capacity, also prosecuted same as independent executrix.

In the petition upon which they went to trial, in addition to pleading the action of trespass to try title in statutory form, plaintiffs also pled the three, five, ten and twenty-five year statutes of limitations. In response to defendant's demand, plaintiffs filed their abstract of title. Defendant's answer consisted of a plea of not guilty, and a plea of the ten year statute of limitations.

Plaintiffs' abstract of title is unusual in this respect; it contained, among other things, the proceedings in a case in which the judgment rendered therein found as a fact there existed a missing deed which had transferred the property here involved from a record owner, Lorenzo De Zavallo, Jr., to the next succeeding predecessor in their chain of title. Plaintiffs' chain of title is as follows:

First: I. The patent to the Five League Grant from the State of Coahiula and Texas to Victor Blanco, dated June 1, 1831.

II. A recorded English translation of the Spanish deed from the patentee to Lorenzo De Zavallo, Sr., dated November 27, 1833.

III. Deed from Lorenzo De Zavallo and wife, Emily, to Lorenzo De Zavallo, Jr., dated September 8, 1835, conveying the lower or south three leagues out of the Victor Blanco.

IV. Deed from Lorenzo De Zavallo, Jr., acting through his attorney in fact, J. O. Davis, conveying the lower three leagues to H. Masterson, dated January 7, 1903.

V. There were various other conveyances to H. Masterson of portions of interest in the Young Subdivision of the Victor Blanco from some of the Young heirs.

Second: A. A conveyance from Emily Hand and her husband to George Young, dated January 5, 1854, conveying 2000 acres out of the lower three leagues of the Victor Blanco.

B. A partition deed between the heirs of George Young, dated June 20, 1865, which partitioned the 2000 acres conveyed to George Young by Emily Hand and husband. The widow of George Young got the bottom or southern most share, which consisted of a strip of land 600 varas wide, and which was also bounded by the east and west lines of the Victor Blanco. This share was not numbered in the partition, and is not involved in this suit. The remainder of the 2000 acres was divided into eight lots, each being 222.5 varas wide, and bounded by the east and west lines of the Victor Blanco, and was partitioned off to the eight surviving children of George Young. The lots were numbered from south to north.

Third: H. Masterson brought suit in trespass to try title against certain of the Young heirs and their successors in interest. It was established in that suit that the Emily Hand who, with her husband, had conveyed the 2000 acres to George Young, was the widow of Lorenzo De Zavallo, Sr., and the mother of Lorenzo De Zavallo, Jr. The question submitted to the jury in that case was "Do you or do you not find from all the facts and circumstances, guided by the law given you concerning the presumption of a deed, that there was at some time a deed made to the 2000 acres of the Victor Blanco Grant by Lorenzo De Zavallo, Jr., to Emily Hand?" The jury found that such a conveyance was so made. The court thereupon rendered judgment that H. Masterson take nothing as against the defendants who were holding title under the Young heirs; but rendered judgment for H. Masterson with respect to the land he held under the Young heirs, and with respect to disclaimers that had been filed, etc. Upon appeal, the judgment was affirmed, and the supreme court refused an application for writ of error. Masterson v. Harrington et al., Tex.Civ.App., 145 S.W. 626.

Fourth: By mesne conveyances W. S. Swilley acquired the title awarded both to Masterson and to the Young heirs in the Masterson-Harrington case. The successors in interest to the Young heirs who received Lot 8 in the partition were not parties to the suit. W. S. Swilley's immediate predecessor in title, that is, his grantor, was B. N. Garrett. The date of said deed was February 1, 1933. — Plaintiffs state in their brief that the entire interest which was partitioned among the Young heirs, so far as the land here involved is concerned, was conveyed to W. S. Swilley by the said B. N. Garrett deed. However, the Young heirs appear to have been quite prolific. And, since defendant occupies the status of a naked trespasser in this suit, we have not felt constrained to decide whether or not there might be some fractional interests in some of the lots outstanding in some of the Young heirs.

By deed dated October 17, 1935, W. S. Swilley and wife purported to convey an undivided one-fifth interest to each of their aforesaid three daughters in various tracts of land, including approximately four thousand acres in the Victor Blanco; but the description of the land, so far as it was intended to cover land located in the Victor Blanco, was doubtless fatally defective, so that no interest in the land located in the Victor Blanco was divested out of the grantors.

The defendant excepted to the court's charge in certain respects, and requested the submission of certain special issues which were refused. The court then submitted the case to the jury upon five special issues. The jury found for plaintiffs on the special issue with respect to the five year statute of limitations; and found for plaintiffs on the two special issues relating to the three year statute of limitations (the court submitting the issue with reference to two different three year periods). — The jury found against defendant upon his issue as to ten year adverse possession.

The defendant moved to set aside the jury's verdict because of plaintiffs' counsel's argument to the jury. He also moved for judgment notwithstanding the verdict; and seasonably filed his motion for new trial.

The court rendered judgment for plaintiffs upon his finding that they had proved good record title, and also rendered judgment for plaintiffs upon the verdict under the five year and three year statutes of limitations.

Defendant predicates his appeal upon twenty points, which cover four pages in his brief, and so cannot be here set forth. However, these points are disposed of by what is said hereinafter.

We hold that no issue was made out by plaintiffs under the three year statute of limitations. Title and color of title as used in that statute, necessarily means something less than the paramount title. Burnham v. Hardy Oil Co., 108 Tex. 555, 562, 195 S.W. 1139. Plaintiffs do not pretend to connect their chain of title in an unbroken chain with the sovereignty of the soil except through Victor Blanco, the patentee. That is to say, they claim to hold their interest by the true or paramount title, and do not claim to hold any junior or defective title.

As stated above, the abstract of title filed by plaintiffs contained the proceedings in the Masterson-Harrington case. The judgment in that case established that Emily Hand was, with respect to the 2000 acres which were partitioned among the Young heirs, the vendee of Lorenzo De Zavallo, Jr. In that suit it was decided that Lorenzo De Zavallo, Jr., had conveyed the title to the 2000 acres to his mother, who had conveyed to George Young, before he conveyed his title to the lower three leagues to H. Masterson in 1903. Hence there is no break in the chain of title from the sovereignty of the soil to the Young heirs.

It is true that the defendant in this suit was not a party to the Masterson-Harrington suit. But defendant is a mere intruder or naked trespasser on the land. As against him, this action might more properly have been brought as an action of forcible entry and detainer. See Alexander v. Gilliam, 39 Tex. 227, 228, 234, approved in Parker v. Fort Worth & D. C. Ry. Co., 71 Tex. 132, 8 S.W. 541. And while the judgment in the Masterson-Harrington case is not res adjudicata as to defendant, the doctrine of stare decisis renders the judgment binding with respect to what was there determined. "`According to the doctrine of the best cases, a title previously passed upon although in a suit between different parties, will not be again examined and adjudged in a case proceeding upon the same state of facts and presenting precisely the same question unless the same is manifestly erroneous. This, however, is not strictly upon the ground that the matter is res adjudicata, but rather upon those settled principles which induce the courts to abide by their own former decisions, that is, the rule of stare decisis.'" Benavides v. Garcia, Tex.Com.App., 290 S.W. 739, 741. The decision which was held to be stare decisis in the case just quoted from was one...