Weisman v. Thomson

• Decision Date: 23 December 1903
• Citation: 78 S.W. 728
• Parties: WEISMAN et al. v. THOMSON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

78 S.W. 728

WEISMAN et al. v. THOMSON.^*

Court of Civil Appeals of Texas.

December 23, 1903.

Appeal from District Court, Tom Green County; J. W. Timmins, Judge.

Action by Lena Weisman and others against J. T. Thomson. From a judgment for defendant, plaintiffs appeal. Reversed.

Hill & Lee, for appellants. Jos. Spence, Jr., and J. T. Thomson, for appellee.

STREETMAN, J.

Appellants brought this action in the form of trespass to try title to recover a section of land in Irion county, and from a judgment in favor of the defendant, J. T. Thomson, they prosecute this appeal.

As evidence of title, the plaintiffs introduced conveyances and an agreement showing a chain of title from the state to Abraham Young. Exceptions were reserved to the admission of some of these conveyances, and to a certificate of the land commissioner, introduced to aid the description in one of them, and these objections are presented by appellee in cross-assignments. In the view that we take of the case it is unnecessary to pass upon these cross-assignments, and, there being no controversy as to the contents of the instruments, it is not necessary to describe them in our findings of fact.

The conveyance by which Abraham Young acquired his title was dated November 5, 1873. On April 10, 1888, the heirs of said Abraham Young brought suit against Joseph Spence and J. T. Thomson in the district court of Tom Green county to recover the land in controversy, and, after answer pleading not guilty, on November 23, 1888, obtained judgment in said cause for said land against said defendants. The defendants gave notice of appeal and filed a cost bond, but the appeal was never prosecuted. It was abandoned, and no writ of error was sued out. No writ of possession or other process was issued under this judgment, and the defendants continued in possession of the land. Said court adjourned for the term November 29, 1888. The plaintiffs in this suit are in part the same persons who were plaintiffs in the above suit, and the other plaintiffs herein derive their title by devise and inheritance from the plaintiffs in that suit. The defendant in this suit is the same J. T. Thomson who was defendant in that suit, and now claims under a conveyance from said Joseph Spence, who was the other defendant in that suit. We are unable to see why the judgment in favor of the plaintiffs in that suit would not be conclusive in this case, as far as the title to that date is concerned. We therefore conclude that the plaintiffs were entitled to recover, unless the defendant, Thomson, could show a superior title acquired subsequent to the date of that judgment. No effort was made to show such title, except by limitation, and it therefore becomes necessary to inquire whether the judgment in this case in favor of the defendant, Thomson, can be sustained upon his pleas of limitation.

The defendant pleaded the five and ten years' statutes of limitation. In support of these pleas he introduced the following conveyances: (1) Quitclaim deed from Jas. E. Brown, by his attorney in fact, Jas. E. Brown, Jr., dated June 30, 1885, to Joseph Spence, Jr., and J. T. Thomson, composing the firm of Spence & Thomson. This deed described the land in controversy, and was duly recorded July 15, 1885, in the proper county. (2) Quitclaim deed from Chas. F. Potter to George B. Jackson, dated October 20, 1894, describing the land, and duly recorded in the proper county February 9, 1895. (3) Special warranty deed from George B. Jackson to J. T. Williams, dated October 29, 1897, describing the land, and duly recorded in the proper county November 1, 1897. (4) Deed from J. F. Williams to the defendant, J. T. Thomson, dated February 20, 1900, describing the land, and duly recorded in the proper county February 23, 1900. Payment of taxes upon the land in suit was shown by defendant and those under whom he claims, as follows: For 1895, taxes paid by J. T. Thomson for G. B. Jackson on January 22, 1896; for 1896, taxes paid by Geo. B. Jackson on December 9, 1896; for 1897, taxes paid by Geo. B. Jackson on December 21, 1897; for 1898, taxes paid by J. F. Williams January 3, 1899; for 1899, taxes paid by J. T. Thomson for J. F. Williams on January 17, 1900; for 1900, taxes paid by J. T. Thomson December 17, 1900; for 1901, taxes paid by J. T. Thomson December 30, 1901.

The defendant, J. T. Thomson, testified as follows: "I have known the location of section 11, S. P. R. R. Co., in Irion county, and have known the location of the land since 1884 or 1885. It was inclosed by Spence and Thomson in 1885, with 11 other sections. It was used from that time by Spence and Thomson and their tenants. There were no roads through the pasture, and since I bought out Spence I have had possession of the pasture. The possession of the pasture by Spence and Thomson was continuous from 1885 down to the time Spence sold to me in 1897, and I have had possession of the pasture ever since, and am now in possession of it. After the date of the judgment in case No. 448—Fannie Dopplemayer et al. vs. Jos. Spence, Jr., and J. T. Thomson—rendered in November, 1888, we continued in possession, and no writ of possession was ever issued or served by the plaintiffs in that judgment, and no demand of any kind has ever been made, nor has the possession ever been questioned or disputed. When Geo. B. Jackson bought the land from Potter, I took possession of it for him, and paid taxes on it under contract with Jackson. I leased the section from Jackson, and handled the land as his agent. I also rented the same section from J. F. Williams after he bought from Jackson. During the time I had said section No. 11 from Jackson and Williams, I leased it to Tol Rutledge and others. Sterrett & Co. had the pasture leased from 1892 to 1895; then Moore had it leased from 1895 to June, 1897. G. C. Davis and W. L. Davis had the pasture leased from June 1, 1897, to 1899, and Tol Rutledge has had the pasture leased since October 1, 1899. Spence and Thomson paid taxes on this land from the date of their deed from Brown till the judgment rendered against them in 1888. Then they did not pay taxes for several years, but resumed payment of taxes under the Jackson title, and paid them till I bought out Spence's interest in the pasture, and since that time I have paid them every year to the present time, when due. Since the sale of west half of the pasture to Davis, there has been a fence on the north and west of this section, and prior to that sale, a fence across the north end since 1885."

Cross-examined: "The pasture was fenced by Spence and myself about June, 1885. No house was built on this section of land, and no part of it has ever been put in cultivation, or used for any other purpose besides grazing. Prior to 1891 this section No. 11 was inclosed in a 12-section pasture containing about 8,000 acres. In 1891 we sold the west half of the pasture to G. C. Davis, and a cross-fence was built between what we sold him and what was left. In 1897 we leased five sections in this pasture to G. C. Davis. This lease was made in April or May, to begin in June of that year. Davis was to pay us $256 per annum lease on the five sections so rented to him. I was not claiming said section No. 11 in 1897. Davis was to pay the taxes upon said section No. 11 for the use of it during the two years of his lease. Said section No. 11 was worth as much rent at that time as any one of the other sections, and I cannot say why we did not lease said section No. 11 for the same rental that we got for the other sections. Section No. 11 was not included in the lease with the other five sections. I let Davis have it for the taxes for benefit of our bargain. I don't know who rendered this section for taxes in 1888. Chas. F. Potter wrote to Spence and me in 1894 about selling us this section. This was after he had moved from here to Colorado. I did not recognize Potter's title. I did not know that Potter had bought a tax title to this section. I don't know whether Jackson consulted me about buying this section of land from Potter. He may have done so. Soon after Jackson bought it from Potter, I took possession of the land under Jackson's title, and recognized his title. We were to pay the taxes for Jackson for the use of the land. We built the pasture fence first about June 1, 1885. Neither Spence nor myself ever lived on the land. I think there was a house in the pasture, but I don't know who occupied it in 1886, and don't know who occupied the pasture in 1887 or 1888. I think Sterrett had the pasture in 1889. I was not on the lands but four or five times prior to the last three or four years. The fence between the Davis pasture, after we sold him the west half of the pasture, may have been down a part of the time while we had the east half rented to him. I negotiated the sale of this section when Jackson sold to Williams. Williams bought the land for my benefit. Williams never paid anything for the land. It was bought for me, and when Williams made me the deed introduced in evidence to the land I never paid him anything for it. Williams was a friend of mine, and took the deed from Jackson for my benefit. I did not take a deed from Jackson, because I thought it best for it to be in Williams' name. I wanted to acquire the land, and thought it best, in order to get it by limitation, that the deed be made to Williams instead of myself. The deed from Potter to Jackson and the deed from Jackson to Williams, was prepared by either Spence or myself, and I prepared the deed from Williams to me. I did not pay Williams the $320 recited as a consideration in the deed from him to me, for when the land was bought from Jackson it was bought by Williams for me. I don't think Jackson was paid anything at the time he conveyed the land to Williams. I asked Williams to buy the land. I never had any correspondence with the Young heirs. I wrote to their agent, Mr. C. M. Raguet, at Marshall, Texas, some time...