Wood v. Cahill

• Decision Date: 04 March 1899
• Citation: 50 S.W. 1071
• Court: Texas Court of Appeals
• Parties: WOOD et al. v. CAHILL.<SMALL><SUP>1</SUP></SMALL>

50 S.W. 1071

WOOD et al. v. CAHILL.¹

Court of Civil Appeals of Texas.

March 4, 1899.

Error from district court, Dallas county; Edward Gray, Judge.

Action by Patrick Cahill against Joel Wood and others. Judgment for plaintiff, and certain defendants bring error. Reversed.

Jeff Word and Thompson & Thompson, for plaintiffs in error. Dickson & Maroney, for defendant in error.

FINLEY, C. J.

In 1894, Patrick Cahill brought suit to recover 300 acres of land situated in Dallas county. C. H. Benson, Isaac Benson, R. N. Merritt, George Brown, T. K. Flowers, Joel Wood, and J. H. Baker, and their respective wives, were made parties defendant. The defendants Wood and Baker pleaded not guilty generally, and pleaded limitations to certain specifically described portions of the land. The other defendants pleaded not guilty, and set up claims for improvements made in good faith. On the trial Cahill recovered the land, and the defendants, who claimed to have made improvements in good faith, recovered therefor the sum of $4,035. All the defendants except Joel Wood appealed, and he was made appellee. Cahill cross assigned errors. On this appeal the judgment of the lower court as to the issue of title to the land was affirmed. On the cross assignments of error presented by Cahill, the judgment was reversed on the issue of improvements in good faith, and the cause was remanded for another trial on that issue between Cahill and the defendants setting up claims for improvements, not including Wood and Baker, who made no such claim. See 37 S. W. 1088. Before the second trial Cahill sequestered the land, and obtained possession under replevy bond. Prior to the second trial the defendants Wood and Baker separately filed amended pleadings, and affirmatively claimed title to certain parcels of land therein described, which they alleged had been seized and taken under the writ of sequestration, and which they charged was not a part of the land recovered by Cahill in the judgment previously rendered in that suit. They alternately claimed improvements made in good faith upon the land. On the second trial the court, on exceptions, struck out their pleas for improvements in good faith, and instructed a verdict against them on the issue of title, based on the boundary contention. The trial on the issue of improvements made by other defendants was had, and resulted in their recovery for improvements. From this judgment Cahill appealed, Wood and Baker not being made parties to the appeal, and the judgment of the trial court was affirmed by this court. See Cahill v. Benson, 46 S. W. 888. Wood and Baker sued out a writ of error from the judgment against them, and in favor of Cahill, making Cahill the sole defendant in error. It is this error proceeding by Wood and Baker that is now before the court, and they seek to have the judgment as to them reviewed and reversed upon grounds manifested by their assignments of error.

Their claim that the lands to which they assert title are not embraced within the boundaries fixed by Cahill's judgment of recovery, and their claims set up for improvements in good faith, were the issues involved below, and are the issues to which the assignments of error presented to us have relation.

1. The first reason urged for a reversal of the judgment is the action of the court striking out the defendants' pleas for improvements in good faith. The court struck out these pleas upon the ground that they should have been urged before the issue of title was tried and settled, and that they came too late after the affirmance of the judgment upon the issue of title and the reversing and remanding the case upon the issue of improvements made by other defendants. This was assuming the very basis of the present controversy. The theory upon which the case is based is that the title to the particular land now in controversy was not settled and concluded by the judgment previously rendered, for the reason that the description contained in the judgment, when actually applied to the land upon the ground, does not embrace the land claimed by Wood and Baker. If this contention could be determined to have no foundation by the mere inspection of the judgment previously rendered in the case, then there would be no room for the contest, and it should not have been entertained. The court, however, tried this issue upon the facts, and the pleas for improvements in good faith being prepared with reference to the particular conditions, and not being attacked as insufficient in their statement of the equities upon which the claims were based, they should have been determined upon their merits, along with the contest over boundaries. Sartain v. Hamilton, 12 Tex. 219; Gatlin's Heirs v. Organ, 57 Tex. 11; McLaren v. Jones, 89 Tex. 131, 33 S. W. 849. It may be a sound contention, and we think it is, that the statutory plea of improvements in good faith, provided for in case of trespass to try title, must be presented and tried along with the issue of title to the land, in order to obtain the benefits of such statutory remedy. Rev. St. arts. 5277-5285; Klever v. Seawall, 12 C. C. A. 653, 65 Fed. 373; Raymond v. Ross, 40 Ohio St. 343; Saunders v. Wilson, 19 Tex. 197, 198. It is well to bear in mind, however, that the right to recover the value of improvements placed upon the land of another in good faith does not arise wholly upon our statute, above referred to, but exists under the principles of equity, independent of such statute. Van Zandt v. Brantley (Tex. Civ. App.) 42 S. W. 620; Patrick v. Roach, 21 Tex. 251; Long v. Cude, 75 Tex. 227, 12 S. W. 827; Harrell v. Houston, 66 Tex. 280, 17 S. W. 731; Thouvenin v. Lea, 26 Tex. 612; Story, Eq. Jur. § 1237.

2. The next contention is that the court erred in instructing a verdict against the plaintiffs in error, Wood and Baker, upon the issue of title, based on the boundary contention. Upon this issue the court instructed the jury "The agreement of the parties, read in evidence, shows that the land now herein claimed by the defendants Joel Wood and J. H. Baker, respectively, are parts of the land heretofore in this case recovered by plaintiff. You are therefore instructed to find for plaintiff against said Joel Wood and wife and J. H. Baker and wife." The court also excluded evidence offered to show that the land here in controversy was not embraced in the land described in Cahill's petition and the judgment of recovery, and evidence in support of their claim of title, upon the sole ground that the agreement referred to in the charge placed the land in dispute within the boundaries set forth in said judgment. If such be the true effect of the agreement, then the action of the court was correct. The agreement referred to is as follows: "It is hereby agreed, by and between the said parties to said cause: (1) That the attached map, marked `Exhibit A,' is a correct map of the land in controversy in this cause, except as herein otherwise stated, and correctly shows the general location and extent of the cleared lands and uncleared lands, and the location of the buildings. The creek is not correctly delineated on said map, and the parties reserve the right to show that there is error in the statements as to when the different tracts were cleared, and the original character of such tracts, and in the location of fence lines and timber lines, the areas being as stated on said map. (2) That the statements of said map, and the letter of O. F. Yarbrough to Dickson & Moroney in reference to the same, dated January 27, 1897, may be read as the deposition of Yarbrough, who surveyed said land in January, 1897, but who is now absent from Dallas county, subject to any objections to questions and answers that might be made to a legal and formal deposition. (3) That the fence lately erected by Patrick Cahill, and called for in the pleadings of Joel Wood and J. H. Baker, is located on, or parallel to, and immediately southwest of, a line running substantially parallel with the southwest line of the Hamilton survey in center of road on said southwest line, and 1,566 2/3 varas northeast therefrom, making the southeast and northwest lines each substantially 1,566 2/3 varas long. The defendants shall have the right to contradict any statement in the letter of O. F. Yarbrough to Dickson & Moroney as though the proper predicate had been laid therefor." The map referred to in the above agreement shows a parallelogram; the four lines describing it are represented as the boundaries of the land now held by Cahill; and the portions of the land claimed by Wood and Baker are indicated thereon. The northeast line, it is agreed, marks the location of Cahill's fence, which is agreed to be 1,566 2/3 varas from the southwest line, making the southeast and northwest lines each 1,566 2/3 varas long. The land claimed by Wood and Baker is described by them in their pleadings as lying southwest of the Cahill fence. The following is a substantial copy of the map:

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

The description of the land recovered by Cahill, and contained in his pleadings and judgment obtained, is as follows: "Three hundred acres of land in the south corner of the James M. Hamilton survey, in Dallas county, about 18 miles N., 45° E., from the city of Dallas, beginning at the south corner of said survey, a stake in prairie, and being the center of the intersection of two roads; thence N., 45 degrees E., along the original southeast line of said Hamilton survey, and with the center line of one of said roads, 1,566 2/3 varas, a corner, being a point where the northeast boundary line of a survey made from said Hamilton survey for Adam Sullivan, as his locative interest, intersects said southeast line of said Hamilton survey; thence N., 45° W., parallel with the southwest boundary line of said Hamilton survey, and being along the northeast line of said Adam Sullivan subdivision of said Hamilton survey,...