Edwards v. Gifford ( 1939 )

WALKER, Chief Justice.

As tried in the lower court, this was an action in trespass to try title.by appellee, F. E. Gifford, defendant and cross plaintiff, pleading the statute of limitations of ten years, against appellants, A. W. Dycus, Jr., Administrator of the Estate of A. W. Dycus, Sr., deed., Mrs. Violet G. O’Fiel, joined by her husband, David E. O’Fiel, and Virginia Edwards, plaintiffs and cross defendants, to recover the East ½ of lot 7, block 6, range F of the Port Arthur Land Company survey in Jefferson County; appellee also impleaded his warrantor, Grant Johnson. Appellant, A. W. Dycus, Admr., answered by disclaiming as to the East ½ of the East ½ of lot 7, the land in controversy, and by plea of not guilty as to the West ½ of the- East ½; the other appellants answered by disclaiming as to the West ½ of the East ½, and by plea of not guilty as to the East ½. Only the following issue was submitted to the jury, answered in the affirmative: “Do you find from a preponderance of .the evidence that the defendant, F. E. Gifford and Grant Johnson, under whom Gifford claims, held peaceable and adverse possession of the land in controversy, cultivating, using or enjoying the same for a period of ten years prior to the 7th day of September, A. D. 1937?” On the verdict, judgment was entered in favor of appellee for all the land in controversy, from which appellants have duly prosecuted their appeal to this court.

Appellants’ motion for an instructed verdict rested upon two theories of the evidence, both without merit.

(1) It is contended that, under the undisputed evidence, appellee and his grantor, Grant Johnson, were not in possession of the land in controversy, claiming' it adversely to appellants for any period of ten years prior to the filing of this suit on the 4th day of September, 1937. It would serve no useful purpose to review the evidence on this theory of the case. On the testimony offered by appellee, he and his grantor had been in continuous possession of the land, claiming it under all the conditions submitted by the court’s charge, for more than ten years. Under appellants’ theory of the evidence, appel-lee and his grantor held it as tenants under appellants’ grantor. Also, there is no merit in the contention 'that appellee and his grantor, Johnson, “have not asserted title to, and were not in possession of the East ½ of the East ⅛ of the lot in controversy”;' under appellee’s testimony, he and his grantor were in possession of all the land in controversy.

(2) Appellants’ second contention is that Grant Johnson, appellee’s grantor, was a party to the final judgment entered by the court on the 30th day of August, 1930, in cause No. 27,755, Longshoreman & Dockworker’s Association, No. 1001, on the docket of the district court of Jefferson County, and that by that judgment the plaintiff in that case recovered against Grant Johnson all his right, title, claim, and interest in and to the land in controversy. The point made is that appellee did not perfect a limitation title subsequent to the entry of the judgment in cause No. 27,755. The facts were as follows : On the 3rd day of December, 1926, the plaintiff in cause No. 27,755 instituted its action in trespass to try title against Grant Johnson and certain other named defendants, praying for judgment against them for the title and possession of the very land in controversy in the suit at bar. On the 30th day of August, 1930, A. W. Dycus, Sr., and Security Realty & Development Company, through whom appellant Mrs. O’Fiel claims, filed their pleas of intervention in that cause, each claiming an undivided ⅜ interest in the land sued for by the plaintiff. On that day the plaintiff and the two intervenors and appellant Mrs. Edwards, entered into an agreement to the effect that the plaintiff and the intervenor Dycus should recover the West ½ of the land sued for, and that Mrs. Edwards and the intervenor Security Realty & Development Company should recover the East ½. On the day the agreement was made, the court entered judgment effectuating the agreement by decreeing to the plaintiff and the intervenor Dycus, as against Mrs. Edwards and the intervenor Security Realty & Development Company, title to the West ½, and by decreeing to Mrs. Edwards and the intervenor Security Realty & Development Company, as against the plaintiff and. the intervenor Dycus, title to the East ½. Grant Johnson was not named in the judgment, directly nor by inference, nor did the judgment purport to adjudicate his interest in any way nor to any extent. Neither directly nor by inference was Grant Johnson a party to the judgment entered upon the agreement of the parties. Courts are entirely without authority to enter any judgment by agreement other than a judgment falling strictly within the stipulation of the parties. Wyss v. Bookman, Tex. Com.App., 235 S.W. 567. It appears from the terms of the agreement upon which the court entered its judgment that no effort was made by the parties to the agreement, and that it was not within their intention, to dispose of the interest of Grant Johnson; for that reason it was not within the scope of the judgment entered by the court, on the agreement of the parties, to adjudicate his interest. Again, agreed judgments are construed as contracts, and the rights of the parties to the agreed judgment are governed and controlled by the rules of law applicable to contracts in general. Empire Gas & Fuel Co. v. Railroad Commission, Tex.Civ.App., 94 S.W.2d 1240; Tyner v. City of Port Arthur, 115 Tex. 310, 280 S.W. 523; Frazier v. Hanlon Gasoline Co., Tex.Civ.App., 29 S.W.2d 461; 25 Tex.Jur. 367. So, since Grant Johnson was not a party to the settlement agreement, he was not bound by the judgment entered on the agreement.

Appellants complain that the court refused to submit to the jury, on their exceptions, certain affirmative defenses which, they say, were raised by the evidence. There was no attempt by the court to submit these issues to the jury; as stated above only the issue of ten years limitation was submitted. Appellants saved their points simply by excepting to the court’s-charge; they did not prepare and tender to the court special issues, carrying to the jury their affirmative defenses. These points are not before us for review. Appellants rested under the burden of preparing these special issues, and submitting them to the court, and requesting their submission. In Texas & New Orleans R. Co. v. Crow, Tex.Civ.App., 101 S.W.2d 274, 275 — the holding was affirmatively approved by the Supreme Court, 123 S.W.2d 649 —this court held that, where an issue is not made by the court a part of his charge, the complaining party must himself prepare a special charge, and tender it to the court, and request its submission. Our court said: “Appellant did not prepare an issue submitting the question of unavoidable accident, and request its submission. The objection to the charge that it did not contain such issue, and a mere request to the court that it prepare and submit such an issue, was not sufficient, and the failure of the court to do so was not error. To entitle appellant to urge the objection sought, it must have prepared a special charge submitting the question to the jury, and tendered same to the court for submission. The mere objection to the charge because it omitted such issue and a request that the court prepare and submit such issue, was not sufficient to bring the matter up for review. Gulf, C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R. 1183; Palmer v. Guaranty State Bank (Tex.Civ.App.) 292 S.W. 953; Pennington Produce Co. v. Browning (Tex.Civ.App.) 293 S.W. 935, affirmed (Tex.Com.App.) 299 S.W. 870; Archibald v. Brack (Tex.Civ.App.) 264 S.W. 500; Harris v. Thornton’s Dept. Store (Tex.Civ.App.) 94 S.W. (2d) 849, 852. Same case by Supreme Court on application for mandamus, Harris v. Leslie [128 Tex. 81], 96 S.W.(2d) 276.”

From what wé have said, it follows that the judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.