Wickizer v. Williams

• Citation: 173 S.W. 288
• Decision Date: 09 December 1914
• Docket Number: (No. 5376.)<SMALL><SUP>†</SUP></SMALL&gt
• Parties: WICKIZER v. WILLIAMS.
• Court: Texas Court of Appeals

173 S.W. 288

WICKIZER v. WILLIAMS.

(No. 5376.)^†

Court of Civil Appeals of Texas. Austin.

December 9, 1914.

Rehearing Denied February 3, 1915.

Appeal from District Court, Montgomery County; L. B. Hightower, Judge.

Trespass to try title by John Williams against T. C. Wickizer. Judgment for plaintiff, and defendant appeals. Affirmed.

Baldwin & Baldwin, of Houston, for appellant. A. L. Kayser, J. Llewellyn, and W. N. Foster, all of Conroe, for appellee.

RICE, J.

This is a suit in trespass to try title, brought by appellee against appellant to recover title and possession of 160 acres of land out of the P. Hunter survey in Montgomery county, based upon the 10-year statute of limitation. Appellant answered by plea of not guilty, and also asserted that appellee was his tenant, which fact was denied by appellee. A jury trial resulted in a verdict and judgment in behalf of appellee, from which this appeal is prosecuted.

It is contended by the first and second assignments of error on the part of appellant that the court erred in refusing to give a special charge directing a verdict in his favor, on the ground of the insufficiency of the evidence to warrant a judgment for appellee. Appellee objects to the consideration of these assignments for the reason that the refusal to give such charge was not excepted to at the time of the trial, as required by the Acts of the 33d Legislature, pp. 113, 114, for which reason we think we might refuse to consider said assignments. Waiving this, however, we hold that said charge was properly refused because, in our judgment, the evidence was sufficient as to each of the issues raised to require the submission of the case to the jury. Wherefore said assignments are overruled.

We do not think there was any error in giving the charge complained of in the third assignment, because, under it, it was not necessary, in order for plaintiff to recover, to show that he had ever marked and identified upon the ground any specific 160 acres. It was only necessary to show that he had held peaceable and adverse possession of a portion of the land in controversy, including his improvements upon which he lived, cultivating, using, and enjoying the same, claiming adversely 160 acres thereof, including his said improvements, for a period of 10 years prior to the filing of this suit, which is in accordance with the requirements of the 10-year statute of limitations. See articles 5675, 5676, R. S. 1911; Louisiana & Texas Lumber Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110; Id., 142 S. W. 990; Louisiana-Texas Lumber Co. v. Stewart, 130 S. W. 199; Ball v. Filba, 153 S. W. 685; Bering v. Ashley, 30 S. W. 838.

It is urged by one of the propositions under this assignment that possession was not continuous. With reference to this, it appears that appellee and his wife went upon the land in controversy in 1897, erected a small cabin thereon, in which they lived, and thereafter put a few acres in cultivation, which was increased from time to time. They continued in possession of the land, using and cultivating the same by themselves or through their tenants, year by year, until a short time before the filing of this suit, which was on the 30th of September, 1912, with the possible exception of a short period in the spring of 1904, when it seems that the appellee was absent from home at work at a nearby sawmill, when his house was occupied by some tie cutters, with his consent, for some two months; but within two weeks after they left he returned to his home, where he continued to live until 1912, as above stated. It has been held by our courts that short breaks in the continuity of possession will not defeat one's claim under our statute of limitations, where the same is shown to be reasonable. See Dunn v. Taylor, 102 Tex. 85, 113 S. W. 265 et seq. This assignment is therefore overruled.

By the first proposition under the fourth assignment, it is complained that, in submitting the case to the jury, the court instructed them that a verdict might be returned for plaintiff, without requiring the jury to believe that the possession was continuous for a period of 10 years. This objection is not tenable, because, taking the charge as a whole, it does require the jury to believe that the possession must have been continuous for a period of 10 years before they could find for appellee. And, further, taken as a whole, the charge did not authorize a verdict for the appellee, as contended by appellant, without reference to what might be the finding of the jury as to his occupying the land as appellant's tenant, because the court did, at the instance of appellant, instruct the jury that, if he (appellee) had occupied the land as the tenant of appellant, then they should find for appellant.

Appellee requested, and the court gave, the following charge:

"You are further charged in this case that if you believe from the evidence that plaintiff had possession of the land and occupied the land in question, cultivating, using, and enjoying the same by himself and tenants for 10 consecutive years prior to the filing of this suit, but you should further believe that thereafter the plaintiff acknowledged himself to be the tenant of the defendant, either in writing or verbally, you will only consider such acknowledgment of tenancy, if any, as bearing upon the nature of plaintiff's prior possession; that is, whether the same was adverse to defendant or not."

This furnishes the basis for the fifth assignment. This charge, we think, was proper, because if an acknowledgment of tenancy is made after the completion of the bar of the statute, as appears from the evidence here, then the court should, we think, limit the effect of such acknowledgment to the question of the character of such prior possession; that is to say, as to whether the same was adverse or not. Such admission could not defeat a title already acquired. See Barrett v. McKinney, 93 S. W. 240; Williams v. Rand, 9 Tex. Civ. App. 631, 30 S. W. 511; Williams v. City of Galveston, 58 S. W. 552; Bruce v. Washington, 80 Tex. 368, 15 S. W. 1104; Thayer v. Clark, 47 Tex. Civ. App. 61, 104 S....