West Lumber Co. v. Sanders

• Decision Date: 22 November 1920
• Docket Number: (No. 604.)
• Citation: 225 S.W. 828
• Parties: WEST LUMBER CO. v. SANDERS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

225 S.W. 828

WEST LUMBER CO. v. SANDERS.^*

(No. 604.)

Court of Civil Appeals of Texas. Beaumont.

November 22, 1920.

Rehearing Denied December 1, 1920.

Appeal from District Court, Polk County; J. L. Manry, Judge.

Action by the West Lumber Company against Pete Sanders and others. From judgment in favor of the named defendant, the plaintiff appeals. Reversed and rendered.

Feagin, German & Feagin, of Livingston, for appellant.

Campbell & Murphy, of Livingston, for appellee.

HIGHTOWER, C. J.

The appellant, West Lumber Company, in its brief, makes the following statement, showing the nature and result of this suit below, the correctness of which is acquiesced in by the appellee, Sanders:

"This suit was filed October 23, 1916, against L. H. Placker, E. C. Placker, Bertie Placker, and J. A. Walker, being in the usual form of trespass to try title. On May 17, 1919, plaintiff filed its first amended original petition making Pete Sanders a party defendant, and, in addition to the usual allegations of trespass to try title, alleged that Pete Sanders was in possession of the land under and by virtue of a lease contract made by J. W. Kent to plaintiff's grantor May 18, 1911; that there had never been any repudiation of this tenancy contract, and that the defendant was estopped to deny plaintiff's title to the land, and set up adverse possession thereto. By answer filed January 5, 1920, L. H. Placker, E. C. Placker, Bertie Placker, and J. A. Walker entered a disclaimer, and judgment was thereupon entered in favor of the plaintiff against them on their said disclaimer. Defendant Pete Sanders answered by general denial and plea of not guilty and especially denied that he was in possession of the land under and by virtue of a tenancy contract executed by J. W. Kent. He also pleaded title to the 111 acres of land by reason of the 10-year statute of limitation."

The case was submitted to the court as an agreed case under the statute, and resulted in a judgment in favor of the defendant Pete Sanders for the 111 acres of land in controversy, and from that judgment this appeal is prosecuted.

The agreed statement of facts upon which the case was tried is as follows:

"We, the West Lumber Company, plaintiff, and L. H. Placker, E. C. Placker and wife, Bertie Placker, J. A. Walker and wife, Mrs. J. A. Walker, and Pete Sanders, defendants, being all the parties to this suit, hereby agree that the following is a true and correct statement of all the facts in this cause:

"First. That the plaintiff owns the record title to the 111 acres of land described in its petition, being part of a larger tract out of the L. T. Hampton league, and is entitled to recover the same, unless the defendants have acquired title to same under the statutes of limitation.

"Second. That the plaintiff, West Lumber Company, holds title to said land by regular conveyances from Camilla G. Davis, independent executrix and legatee under the will of George W. Davis, deceased.

Third. That on the 18th day of May, 1900, J. W. Kent, who was at said time residing on and cultivating about 13 acres on the L. T. Hampton league, the same being a portion of the 111 acres of land described in plaintiff's pleadings, on said date executed in favor of Camilla G. Davis, as independent executrix and legatee under the will of George W. Davis, the following tenancy contract, to wit: `The State of Texas, County of Polk. Know all men by these presents; that I, J. W. Kent, of the county of Polk, state aforesaid, in consideration of the use and benefit accruing to me, from living on, cultivating and enjoying a portion of the L. T. Hampton league of land in Polk county, Texas, do hereby bind and obligate myself to pay to Mrs. C. Davis, administratrix of the estate of G. W. Davis, deceased, which administration is pending in Dallas, Dallas county, Texas, and of which estate the L. T. Hampton league forms a part, the sum of $5.00 per annum as rental, and I further bind and obligate myself as a part consideration for the use of said land to look after the interest of said estate and to promptly report to said Mrs. C. Davis, or her agent, any trespass committed by any and all persons upon either the land or the timber of the L. T. Hampton league. Witness my hand this the 18th day of May, A. D. 1900. J. W. Kent. Witnesses: D. McCardell. D. Vinson.' Which acknowledgment of tenancy was never filed for record. That the said J. W. Kent owned the house situated on said land and the rails used to inclose the field that he so cultivated, but did not assert or claim any interest in said land. That he continued to reside thereon until the early part of July, 1900, at which time the said J. W. Kent moved off said premises leaving the same vacant.

"Fourth. That in September, 1900, the said J. W. Kent, who was the owner of the house and rails situated on said land, for a cash consideration of $75 sold said house and rails to L. H. Placker, but did not sell or convey any right or interest in said land; that said house and rails were of the reasonable value of $75.

"Fifth. That in December, 1900, the said L. H. Placker surveyed 111 acres of land on the L. T. Hampton league to include the 13 acres of land on which said house and rails were situated, and immediately after making said survey asserted a claim thereto, and took possession of said land by tenant. That by his said tenant he used, cultivated, enjoyed, and claimed the same until the 1st day of January, 1902, at which time he sold and conveyed said 111 acres of land to E. C. Placker. That the conveyance made by L. H. Placker to E. C. Placker was never placed of record.

"Sixth. That the said E. C. Placker used, occupied, cultivated, and claimed said 111 acres of land, by himself or through his tenants, continuously until about the 1st day of December, 1911.

"Seventh. That the only improvements on said 111 acres of land consisted of the house and rail sold by the said J. W. Kent to L. H. Placker and the 13 acres of cultivated land; that the tenants of the said L. H. Placker and the defendant E. C. Placker, together with his tenants, each, while occupying said land, resided in said house, and used and cultivated the 13 acres of land formerly occupied by J. W. Kent, and the same land formerly cultivated by the said J. W. Kent.

"Eighth. That by general warranty deed, dated December 23, 1915, the said E. C. Placker and wife, Bertie, conveyed said 111 acres of land to defendant J. A. Walker, which was filed for record December 23, 1916. That this suit was filed October 23, 1916, and citation...