Wicks v. Langford

• Citation: 320 S.W.2d 707
• Decision Date: 09 January 1959
• Docket Number: No. 3420,3420
• Parties: Lena WICKS et al., Appellants, v. Nathan LANGFORD et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 707

320 S.W.2d 707

Lena WICKS et al., Appellants, v. Nathan LANGFORD et al., Appellees.

No. 3420.

Court of Civil Appeals of Texas, Eastland.

Jan. 9, 1959.

George T. Thomas, Big Spring, for appellants.

Grover Cunningham, Jr., Big Spring, for appellees.

GRISSOM, Chief Justice.

Nathan Langford and others, as trustees for the A.M.E. Church of Big Spring, sued James Manning, Lena Wicks, Elnora Dossie Johnson and husband, Willie Johnson, for title and possession of Lot Number One in Block F of the Moore Addition to Big Spring. Plaintiff's petition consisted of three counts, the first was in trespass to try title; the second alleged a contract between the plaintiffs and James Manning and Lena Manning Wicks for the exchange of a lot owned by said church for all of Lot One and that the conveyance by James Manning and Lena Manning Wicks to the trustees of said church of only the west 50 feet, instead of all of said Lot One, was the result of a mutual mistake. In the third count plaintiffs sought title and possession of all of Lot One by virtue of the ten year statute of limitation. Vernon's Ann.Civ.St. art. 5510. The court instructed a verdict for the defendants as to the first and second counts, but, based on a jury finding of ten year limitation, judgment was rendered awarding all of Lot One to plaintiffs. All defendants except James Manning, against whom a default judgment was rendered, have appealed.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Appellants contend the judgment should be reversed because of the admission of testimony of verbal negotiations for the exchange of lots and testimony as to plans of the church for future development of Lot One. Appellants also say that the judgment should be reversed because there is no evidence of the requisites of title by virtue of the ten year limitation statute and because the evidence thereof is insufficient. The evidence relative to verbal negotiations for the exchange by the Mannings of all of Lot One for another lot was adlimited purpose of showing a mutual mistake and cannot be considered in support of the judgment rendered on count three. In order that the facts may be more readily understood, we attach hereto a copy of a survey of Lot One. Plaintiffs introduced a deed from James and Lena Manning, dated November 9, 1942, acknowledged on said date by James Manning and by his wife, Lena Manning, now Wicks, on February 15, 1943, and filed for record on February 22. (Lena Manning is the same person as the defendant Lena Wicks.) It recites that the Mannings in consideration of $10 paid them by the trustees of said A.M.E. Church of Big Spring conveyed to said trustees a tract described as 'Being the West 50 feet Eastward and Westward by 140 feet Northward and Southward of Lot No. one (1) in Block 'F' Moore Addition to the Town of Big Spring Howard County, Texas.' It is undisputed that when said deed was executed James Manning was one of the trustees of said church. There is no evidence when, if ever, he ceased to be a trustee. Appellants admit plaintiffs have title to all of said lots south of the north line of the church located on said lot and, regardless of what disposition should otherwise be made of the judgment, we could affirm the judgment as to that portion if said line were definitely established by the record. Appellants claim all of said lot north of said line that lies more than 50 feet east of the west line of Lot One. In discussing the evidence as to a claim to and use of said lot we shall pay particular attention only to that portion. The evidence shows that in 1945 there were 4" X 4" posts in the ground adjacent to the north and east lines of said lot. Except for gaps at the northwest and northeast corners and on the east line near the church, the posts were placed approximately ten feet apart and were about 24 inches high. All the testimony comes from Nathan Langford and Charlie Merritt, trustees, and Reverend Birt, pastor of said church. Reverend Birt testified that he had been pastor since 1951, or nearly seven years; that the 'fence' was there when he became pastor; that a shack, described by Merritt as 20 feet by 6 or 8 feet, was moved on the disputed area, near where Elnora Dossie Johnson's house, marked C on the plat, now stands, in 1951 or 1952 and it was moved off about 1955 when they acquired a cafeteria, which is shown on the plat as house A. He testified that since he had been pastor they have kept the lot clean to the 'fence'. He said that the year he became pastor, 1951 or 1952, Lena Manning, now the appellant Lena Wicks, told him she owned the land in controversy and asked him if she could sell it and he told her, in substance, that he guessed she could. He chief witness for the trustees was Nathan Langford, who has been a trustee for about 17 years. He said he was a trustee when the church began negotiations for the lots with James Manning; that James Manning was then a member and a trustee of said church and owned Lot One. Langford testified that Manning said he would give Lot One for the lot on which the church and parsonage were then located and that Langford said 'all right' and the other trustees approved it. The record does not show whether the church conveyed its lot to the Mannings or explain why the Mannings executed a deed to only the west 50...