Walker v. Maynard
| Decision Date | 09 July 1930 |
| Docket Number | No. 7460.,7460. |
| Citation | 31 S.W.2d 168 |
| Parties | WALKER v. MAYNARD et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Travis County; J. D. Moore, Judge.
Action by R. C. Walker against J. W. Maynard and others. From the judgment, plaintiff appeals.
Affirmed in part, and in part reversed and rendered.
Shelton & Shelton and R. C. Walker, all of Austin, for appellant.
On May 22, 1928, appellant, R. C. Walker, sued appellees, J. W. Maynard and his wife Margaret Maynard, G. W. Maynard, John L. Maynard, Jesse Maynard, W. D. Brooks, J. Ed. Schonfield, and Felix Bonnet, in trespass to try title to recover 1,040 acres of land out of the C. Ybarbo 1,120 survey and 338½ acres out of the J. A. Ybarbo 1,390-acre survey in Travis county; and recovered judgment against all appellees, which is not contested and is here affirmed, for all the land he sued for out of the C. Ybarbo survey, except the following awards to the appellees named under their pleas of title by the ten-year statute of limitation:
1. 130 acres, more or less, described by metes and bounds, awarded to appellees J. W. Maynard and wife, Margaret Maynard, which judgment is admitted to be correct and is here affirmed.
2. 171 acres awarded to appellee G. W. Maynard, described in the judgment as being out of the northwest portion of the 834.1 acres sued for by the Maynards so as to include the improvements.
3. 150 acres awarded to appellee John L. Maynard and described in the judgment as being south of the 171 acres awarded to D. W. Maynard and adjoining it.
Appellee Felix Bonnet was awarded the 338½ acres out of the J. A. Ybarbo survey under his plea of title thereto by the ten-year statute of limitation.
We sustain appellant's contention that there are neither pleadings nor evidence to support these judgments. Appellees G. W. and John L. Maynard joined all appellees Maynard in their plea of title by ten-year statute of limitation to a 834.1-acre tract, or to a 605.25-acre tract out of the 834.1 acres described, alleging their joint possession, but by their evidence these two appellees abandoned their joint suit for the 834.1 acres, or the 605.25 acres, and claimed separate possession of the 171-acre tract and the 150-acre tract awarded to them respectively. Neither of these appellees' pleadings described the tract awarded to him, and the evidence is undisputed that each of them was a mere naked trespasser or possessor, neither claiming the tract awarded under a deed or muniment of title duly recorded and defining the boundaries of same. They should not have recovered under the following rule announced in the case of Giddings v. Fischer, 97 Tex. 188, 77 S. W. 209, 211: "When a party is in possession of land, of which he has held adverse possession of 10 years, and claims under no muniment of title or color of title which fixes the boundaries of his claim, he may under our statute, assert title to 160 acres without showing actual occupancy of the whole, provided that the tract so claimed embrace the land of which he has had actual possession, and provided further that he describe in his pleading the 160 acres to which he asserts title, and that he prove upon the trial that, while occupying a part, he claimed the whole." La. & Tex. Lbr. Co. v. Kennedy, 103 Tex. 297, 303, 126 S. W. 1110; T. & N. O. Ry. v. Broom, 53 Tex. Civ. App. 78, 114 S. W. 655; La. & Tex. Lbr. Co. v. Stewart, 61 Tex. Civ. App. 255, 130 S. W. 199; Kirby Lbr. Co. v. Conn., 114 Tex. 104-110, 263 S. W. 902.
Nor did either of these two appellees by his pleadings plead the field notes to the larger tract, and his claim to 160 acres undefined to be selected so as to include his improvements, and without such pleadings they cannot recover. Bering v. Ashley (Tex. Civ. App.) 30 S. W. 838; Parker v. Cameron & Co., 39 Tex. Civ. App. 30, 86 S. W. 647; Rice's Ex'rs v. Goolsbee, 45 Tex. Civ. App. 254, 99 S. W. 1031; McAdams v. Hooks, 47 Tex. Civ. App. 79, 104 S. W. 432; Davis v. Receivers, Houston Oil Co., 50 Tex. Civ. App. 597, 111 S. W. 219; Smith v. Simpson Bank, 52 Tex. Civ. App. 108, 113 S. W. 568.
Nor could appellee G. W. Maynard recover more than 160 acres under the rule quoted. The evidence also shows as a matter of law that G. W. Maynard did not have continuous possession of the 171-acre tract awarded him or any part thereof for the period of ten years next preceding the filing of this suit. He testified that he moved to Burnet county March 1, 1920, made a crop there, and returned to the 171-acre tract awarded him November 1, 1920. Neither of the small fields which he had fenced was cultivated for that year, and the small "shack" or one-room house which he built on the inclosure of one of the fields in 1913 was not occupied during his nine months' absence. No one was left in charge of the premises, and he took with him his family and all his household effects, except a bedstead, a cookstove, and a few chairs. This evidence as a matter of law shows a break in his possession, because, under the plea of title by the ten-year statute of limitation, the possession must be continuous, and the claimant must actually cultivate, use, or enjoy the premises; and, as was held by the earlier cases, claimant must "keep his flag flying." Word v. Drouthett, 44 Tex. 370; Cook v. Dennis, 61 Tex. 246; Dunn v. Taylor, 102 Tex. 80, 113 S. W. 265; Peden v. Crenshaw, 98 Tex. 365, 84 S. W. 362; Niday v. Cochran, 42 Tex. Civ. App. 292, 93 S. W. 1027; Buster v. Warren, 35 Tex. Civ. App. 644, 80 S. W. 1063; Odem v. Leahy (Tex. Civ. App.) 264 S. W. 218, 219. The judgment awarding G. W. Maynard the 171 acres is reversed, and judgment is here rendered awarding same to appellant.
Nor is there any evidence showing peaceable and adverse possession for the ten-year period alleged of the 150-acre tract or any part of it awarded to appellee John L. Maynard. The 834.1-acre tract, or the 605.25-acre tract out of it, claimed by appellees Maynard under their joint plea of title by limitation, included what is described as lots 43 and 44, as shown by a plat of the C. Ybarbo survey recorded in 1871. Appellant did not sue for these lots of 40 acres each, and they are not involved in this controversy. Appellee John L. Maynard was shown to have lived on lot 44 for about 12 years prior to the filing of this suit. From this possession of lot 44 not involved in this suit his constructive possession was extended to the 150 acres awarded to him, apparently adjoining lot 44, though the evidence is not clear on this point. There were no pleadings describing the 150 acres, and the undisputed evidence shows that this appellee had not been in peaceable and adverse possession of any part of the 150 acres awarded to him for the ten-year period. On the contrary, this appellee testified that "the range is open and where everybody can run cattle and stock on it just the same as I did." In order to hold land by constructive possession, the party claiming it must be in possession of a part of the land; and the mere running of stock upon an open range in common with others is not such possession as will sustain title by limitation. Nor does the statute make any provision for two or more defendants to hold jointly as naked trespassers or possessors, but each must hold exclusive as against the world. Crumbley v. Busse, 11 Tex. Civ. App. 319, 32 S. W. 438. The reason for the rule is that proof of joint possession would not designate any particular portion of the land to which the ten-year statute would apply, and would not authorize a decree for any definite part of the land. The judgment awarding appellee John L. Maynard 150 acres out of the C. Ybarbo survey is reversed, and judgment is here rendered awarding appellant title and possession of said 150 acres.
Appellee Felix Bonnet filed his plea of title by the ten-year statute of limitation to the 338½ acres of land out of the J. A. Ybarbo survey, claiming under deeds or muniments of title recorded, beginning with a deed executed by John L. Maynard et ux. to Charlie Suhr, dated November 28, 1917, recorded February 18, 1919, and through mesne conveyances to him. The above-mentioned deed described the land as follows:
Over appellant's objection that it was the...
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