Watts v. City of Houston

• Decision Date: 25 July 1946
• Docket Number: No. 11796.,11796.
• Citation: 196 S.W.2d 553
• Parties: WATTS et al. v. CITY OF HOUSTON.
• Court: Texas Court of Appeals

196 S.W.2d 553

WATTS et al. v. CITY OF HOUSTON.

No. 11796.

Court of Civil Appeals of Texas. Galveston.

July 25, 1946.

Rehearing Denied October 3, 1946.

Appeal from District Court, Harris County; W. W. Moore, Judge.

Suit in trespass to try title by Thomas Pierce Converse, after whose death Mrs. W. F. Watts and husband were made parties plaintiff, against the City of Houston, which filed a cross-action in trespass to try title against plaintiffs, W. S. Parker and others. From a judgment for defendant, substituted plaintiffs and cross-defendant Parker appeal.

Affirmed.

C. M. Wilchar, Jr., of Houston, for appellant Watts.

W. S. Parker, pro se.

Lewis W. Cutrer, City Atty., George W. Eddy, First Asst. City Atty., and F. F. Beadle, Asst. City Atty., all of Houston (Will Sears, of Houston, of counsel), for appellee.

MONTEITH, Chief Justice.

This suit was brought by Thomas Pierce Converse in regular form of trespass to try title for recovery from the City of Houston of the title to Block 34, S.S.B.B., in the old townsite of the City of Houston, known as the Market Square.

The City of Houston answered formally and by special pleas that plaintiff's suit was barred by the 3, 5, 10 and 25 year statute of limitations, Articles 5507, 5509, 5510 and 5519, Revised Civil Statutes. Vernon's Ann.Civ.St. arts, 5507, 5509, 5510, 5519. By cross-action in trespass to try title the city sought recovery of the land in controversy from plaintiffs and other defendants cited by publication, including appellant W. S. Parker.

Since the filing of the suit Thomas Pierce Converse has died and his wife and W. F. Watts, whom she subsequently married, have been made parties plaintiff in the suit. Appellant, W. S. Parker, claimed title to an undivided one-half interest in said Block 34 through a conveyance from Thomas Pierce Converse, deceased.

At the close of the testimony after all parties had rested, the court granted appellee's City of Houston's motion for an instructed verdict and, upon the verdict thus returned, rendered judgment that plaintiffs take nothing by their suit and that the City of Houston recover the title to said Block 34 of the original townsite of the City of Houston from all cross-defendants. Plaintiffs, Mrs. Watts and her husband, W. F. Watts, and cross-defendant, W. S Parker, have appealed.

A. C. Allen and his brother, J. K. Allen, the admitted common source of title, were the owners in fee simple of the tract of land of which said Block 34 is a part. In 1837, shortly after acquiring title thereto, they laid out the townsite of the City of Houston and through the sale of lots by reference to "Houston Townlot Book", maps and plats of Houston, they dedicated said Block 34 to the use of the inhabitants of the City of Houston as a "Market Square". Said Block 34 was used by the City of Houston subsequent to 1840 as a market square. In 1929 a "farmers market" was established by the City at a location other than said Block 34 for a market square, but the city continued to use the whole of said Block 34 for city purposes. In January, 1940, the city leased the eastern half of said Block 34 to the Bowen Bus Company for a period of five years with the privilege of renewal and has built and is now maintaining its offices in a new city hall at a different location.

In 1838 J. K. Allen died and his interest in said Block 34 passed to his brother, A. C. Allen. By deed dated March 25, 1861, A. C. Allen conveyed all of his right, title and interest in and to any and all of his "unsold property in and about the City of Houston" to his wife, Charlotte M. Allen. It was stipulated by the parties that there is no record in Harris County of any other conveyances of said Block 34 prior to the year 1895.

By deed dated January 12, 1895, Charlotte M. Allen bargained, sold, released and quitclaimed said Block 34 to the City of Houston. The deed recited that said land should never be sold by the city and should only be used for the maintenance thereon of a public market place and for the building of offices thereon necessary for the administration of the city's affairs. It provided that the city might erect public buildings on the western half of said block, and that these buildings might be rented by the city and the income therefrom applied to the administration of the city's affairs.

The habendum clause in said deed reads: "To have and to hold the above described premises upon the conditions above named unto the said City of Houston forever, so that neither I, the said Charlotte M. Allen, nor my heirs nor my assigns, nor any persons claiming by, through or under me, shall at any time hereafter have, claim or demand, any right, title or interest in or to the above described premises, or any part thereof." There is no provision in said deed that the title to said Block 34 shall revert to the grantor in the event the city should fail to use the property for market purposes.

In her will, which was duly probated, Charlotte M. Allen bequeathed "All the rest and residue" of her property and estate of every kind and description "not hereinabove disposed of" to the Second Presbyterian Church of Houston.

By deed dated December 2, 1901, the Second Presbyterian Church of Houston, through its duly authorized officers, transferred and conveyed all the right, title and interest owned or claimed by the church in and to said Block 34 to the City of Houston. The Second Presbyterian Church was made a cross-defendant in this suit in the trial court and judgment was rendered against the church and in favor of the City of Houston for the title to said Block 34.

A. C. Allen died intestate in 1864, leaving as his sole...