Lee v. Kirby , 277 S.W. 225 ( 1925 )

Appellees, as plaintiffs, instituted this suit against appellant to recover from him the title and possession of approximately 1,185 acres of land in Harris county, Tex., a part of the Harris and Carpenter league. Upon a trial to a jury a verdict was instructed for appellees at the conclusion of the evidence, from which this appeal was duly prosecuted.

Appellees introduced a chain of title from the sovereignty to themselves, in which appellant attacks many links, on the ground that the description was bad, or that the grantors were without power to execute the deeds in question, or that certain judgments ordering the conveyance of the land were void, etc. These objections are fully briefed, but we are not reviewing the propositions arising thereunder, since in our judgment appellees have shown title by limitation and appellant has shown no title.

The land in question was a peninsula, almost surrounded by San Jacinto river and Old, or Lost, river. The evidence clearly shows that those claiming this land, and under whom appellees held, built a fence across the narrow neck of the peninsula long prior to 1882, and that the land inclosed by these rivers and this fence was in their uninterrupted use and exclusive adverse possession and enjoyment for possibly 20 years prior to 1892. Under the evidence, no issue was made against this possession, nor that all the land in controversy was in the inclosure made by the rivers and the fence. It would serve no useful purpose to quote from the testimony on this issue, but without doing so we make it as a conclusion of fact that those under whom appellees hold had perfected a title by limitation to all the land in controversy under the 10-year statute of limitation prior to 1892. On this conclusion, all exceptions urged against appellees' chain of title prior to 1892 become immaterial.

All the land in controversy passed to Emma Hudson in 1892, who, as we conclude, was a minor at that time. This disability of minority continued until 1906. Appellant, by his evidence, raised the issue that the fence across the neck of the peninsula was down in 1895, when he repaired it and took and held exclusive and adverse possession until 1911. We say he raised this issue by his evidence, but, as it appears in this record, his evidence is so against the overwhelming weight and preponderance of the other evidence that, had such an issue been submitted to the jury and found in his favor, it could not have been sustained. But prior to 1911 no issue of limitation under the 10-year statute — and appellant claimed under no other statute — arose in his favor, regardless of the character of his holding, because of the minority of Emma Hudson, which, as we have said, continued until 1906.

In 1911 appellant executed a quitclaim deed to Joe Eagle to all the land in controversy. This deed was attacked as a forgery on the ground that appellant did not sign it. In fact, appellant did not sign the deed in person, but it appears from his own testimony that his name was signed thereto by his brother, who did so in his presence and with his permission. Though appellant can neither read nor write, it appears from his own testimony that the deed was read to him before it was executed, and, after it was so read, his brother, in his presence and with his consent, signed his name thereto by his mark. Under the authorities, this quitclaim deed, executed in this manner, was not a forgery, nor was it executed in violation of the statute of frauds, but was in all things effective and binding upon appellant. Mondragon v. Mondragon (Tex.Civ.App.) 239 S.W. 650.

Appellant also seeks to avoid the quitclaim deed on the ground of fraud, but no such issue was raised by the pleadings, and, since the deed was more than twelve years old before its validity was put in issue, an attack of this nature came too late. Since this was a trespass to try title suit, this deed could have been attacked and its validity destroyed only by a direct plea challenging its binding force and effect. Deaton v. Rush (Tex.Com.App.) 252 S.W. 1025.

Apart from what we have just said, on a careful review of all the testimony on the issue of fraud, it is clear to us that the issue was not even raised, and, had it been duly pleaded, the court would have committed error in submitting it to the jury.

Appellant further insists that he acquired limitation title under the 10-year statute subsequent to 1911. By his evidence he shows that he was on the land continuously from 1911 to the institution of this suit, but we think it appears from his own evidence that Joe Eagle, who held under appellant's quitclaim deed, and who later conveyed to appellees and those under whom these claimants hold, were in possession of the land continuously from 1911 until the institution of this suit, or at least his evidence does not make an issue against such a conclusion. Then, by his own testimony, he shows such a possession by those holding under his quitclaim deed as to defeat any claim by him. Therefore we conclude, from the undisputed evidence in this case, that appellant did not raise an issue of 10 years' limitation as to all the land subsequent to 1911.

If appellant had an adverse claim against any particular portion of the land in controversy, it could not have extended beyond his actual inclosures, since appellees were in possession of all the land not in the actual possession of appellant. Neither by pleading nor proof does he seek to identify any particular portion of the land in controversy. Therefore, whatever may be the effect of his testimony on the issue of limitation as to the little holdings he may have held and occupied, the court was without authority to give him relief. York v. Thompson Lumber Co. (Tex.Civ.App.) 169 S.W. 187; Giddings v. Fischer, 97 Tex. 184,77 S.W. 209; Houston Oil Co. of Texas v. Holland (Tex.Com.App.) 222 S.W. 546; Wiley v. Bargman (Tex.Civ.App.) 90 S.W. 1116; Combes v. Stringer, 106 Tex. 427, 167 S.W. 217.

Again, we find that appellees paid the taxes on this land regularly every year from and including 1911 to the institution of this suit, and that they were in continuous use and enjoyment, holding the same exclusively and adversely to all the world, except as to the small portion occupied by appellant, for more than 10 years after 1911. Therefore we further conclude that appellees matured a limitation title to all the land in controversy under both the 5 and 10 year statutes subsequent to the execution of the quitclaim deed from appellant to Joe Eagle.

For the reasons given, the judgment of the trial court is in all things affirmed.