Whitaker v. Thayer

• Citation: 86 S.W. 364
• Parties: WHITAKER et al. v. THAYER et al.
• Decision Date: 22 March 1905
• Court: Court of Appeals of Texas

86 S.W. 364

WHITAKER et al. v. THAYER et al.

Court of Civil Appeals of Texas.

March 22, 1905.

Appeal from District Court, Harris County; W. P. Hamblen, Judge.

Action by Mary L. Thayer and others against Jack Whitaker and others. From a judgment for plaintiffs, defendants appeal. Reversed in part.

Fisher, Sears & Sherwood, for appellants. Baker, Botts, Parker & Garwood and Hamblen, Scott & Hamblen, for appellees.

JAMES, C. J.

The action was by appellees in trespass to try title, claiming title to 640 acres patented to P. P. Hosley, assignee of Moses Merritt. Appellants, Jack Whitaker and wife, and Ed Clark and wife, claimed separate parcels of the tract, the former a certain 129 9/10 acres, the latter a certain 141 2/10. They pleaded not guilty, and limitations of 10 years. Judgment was rendered against them, and they have appealed.

We shall consider first the assignments relating to charges on limitations. The twelfth assignment complains of the charge on limitations, which used the words "commenced and continued under a claim of right inconsistent with and hostile to the claim of all others, and especially the plaintiffs herein." This is complained of because, if defendants' possession was adverse to the true owners, that was sufficient. It was not necessary that it should have been shown to be adverse to all others, and the court erred in so charging, and the charge imposed upon defendants a greater burden than is required by law. The theory of injury to defendants by this expression in the charge would be that it was calculated to cause the jury to think that it was not enough for the possession to be adverse to plaintiffs, and, if they so found, it still was necessary, under this charge, for them to find that it was adverse to all other persons as well. The jury having found that plaintiffs had the title, there was no one else that had or appeared to have any interest or claim to the land. A charge, though theoretically correct, may be misleading and erroneous in the particular case. There was no occasion whatever in this case if referring to "all others," as defendants' title by limitation would be complete if it was good against plaintiffs. In order to sustain the charge, we would have to hold that the jury could not have been misled by it, for the reason that there was no evidence of any claim or title in any other person than plaintiffs. The difficulty with this is that the very fact that the court submitted to the jury the question, not only whether or not defendants had held adversely to plaintiffs, but also the question whether or not they had held adversely to all others, thus submitting a matter not in the case, and not necessary to be considered in order to entitle defendants to the land, its natural effect was to lead the jury to suppose that in the opinion of the court there was testimony to consider on the subject. Ry. v. Platzer, 73 Tex. 124, 11 S. W. 160, 3 L. R. A. 639, 15 Am. St. Rep. 771. The jury might have considered that defendant had held adversely to plaintiffs and still have rendered this verdict. The submission was not a fair one to defendants on the case as made, and, as the assignment charges, was too onerous on them. Mather v. Walsh (Mo. Sup.) 17 S. W. 757. In Ivey v. Williams, 78 Tex. 688, 15 S. W. 163, there was this charge: "To entitle plaintiff to recover, she must show a valid, good title, superior to all others, not only against defendants, but against all other parties." The Supreme Court held that, though correct in the abstract, the instruction was misleading, because there was no evidence tending to show that any one else had title except the plaintiffs and defendants. The assignment should be sustained.

While on the subject of limitations, we shall dispose of other charges that are complained of by assignments Nos. 13 and 14.

"But if you believe from the evidence that the said defendants, or either of them, within the ten-years period above defined, were in possession of said land, believing the same to be vacant land belonging to the state, or if either of the said defendants within the ten-years period above referred to were occupying said land, described in their respective answers, with the view of holding the same until they could ascertain the real owner and purchase the same from the owner, or if the defendants, or either of them, respectively, as above set forth, claimed they were holding it with the view of purchasing said land from the owner when such owner should be ascertained, then as to such defendants no limitation accrued after said date, and your verdict should be against them on the question of limitation.

"If either of said defendants, within the ten-years period above referred to, were occupying said land, described in their respective answers, with the view of holding the same until they could ascertain the real owner and purchase the same from the owner, or if the defendants, or either of them, within the ten-year period applying to them respectively as above set forth, claimed they were holding it with the view of purchasing said land from the owner when such owner should be ascertained, then as to such defendants no limitation accrued after said date, and your verdict should be against them on the question of limitation."

It was shown that defendants Clark and wife stated that when they first moved on the tract they did so believing that the survey was vacant land belonging to the state. This statement was made in their ex parte deposition taken in this proceeding. There was also proof of statements of Clark made in 1889, and of Whitaker in 1902, to the effect that they made no claim to the land, and wanted to buy it. All this testimony was contradicted by the defendants.

Now, with reference to the first of the above charges, it is contended that there was no evidence that Whitaker ever occupied the land believing it to be vacant land belonging to the state. This is true, but this did not render the charge erroneous, because it in terms limited the effect of the charge to such of the defendants as had made such statement. Clark and wife are the ones to whom the statement is attributed, and appellants in...