Houston Oil Co. of Texas v. Ainsworth , 1916 Tex. App. LEXIS 1334 ( 1916 )

This is a suit in trespass to try title instituted by Chas. H. Ainsworth in the district court of Hardin county, Tex., August 30, 1911, for a one-third undivided interest in 640 acres of land of the Uriah Davidson league in Hardin county, Tex. describing the land by metes and bounds in his petition. On November 13, 1913, Oliver C. Ainsworth and Henry W. Ainsworth intervened, claiming that they owned, together with the original plaintiff, C. H. Ainsworth, the entire 640 acres of land. The land was described in the original petition as follows:

"Six hundred and forty (640) acres out of the Uriah Davidson league in Hardin county, Tex., beginning on the south line of said league and at the southeast corner of Cook lake; thence north 700 yards; thence west 4,396 yards; thence south 700 yards to the south line of said league; and thence east 4,396 yards."

And they alleged that they and their predecessors had occupied the land for a period of more than ten years prior to the 21st day of September, 1879. They also plead in the alternative that, if they should be mistaken as to their right to recover the land described by metes and bounds, then they were entitled to recover 640 acres of land out of the said league to be so surveyed as to include certain improvements thereon located near the south line of the league, and about 200 yards west of Cook Lake, and within 400 yards of said south line, by reason of the fact that they and their predecessors had held peaceable, continuous, and adverse possession thereof for the period of time intervening between the 1st day of January, 1858, and the 21st day of September, 1879, by reason of which they were entitled to an undivided interest of 640 acres, to be so surveyed as to include their improvements, and praying for commissioners to be appointed to survey and partition the land to which they were entitled.

On May 10, 1912, the Houston Oil Company of Texas filed its original petition in cause No. 2247, entitled Houston Oil Company of Texas v. C. H. Ainsworth, Oliver C. Ainsworth, H. W. Ainsworth, and F. Tim, alleging that it was the owner in fee simple of the 640 acres of the Davidson league described as follows:

"Beginning on the southeast corner of the lake on the Uriah Davidson league and on the south line of said league, which lake is known as Cook's Lake; thence north 700 yards to corner; thence west 4,396.7 yards to the northwest corner of this tract; thence south 700 yards to the southwest corner thereof, which is on the south line of said Davidson league; thence east on the south line of said league 4,396.7 yards to the place of beginning."

C. H. Ainsworth and others answered to this suit on the 24th day of August, 1912, and set up title to said land against the plaintiff in said cause by virtue of the ten-year statute of limitation.

The first case was cause No. 2148 on the trial docket, and subsequent to the proceedings above mentioned cause No. 2247, by order of the trial court, was consolidated with cause No. 2148, and the trial court directed the trial to proceed with the Houston Oil Company of Texas as plaintiff, and C. H. Ainsworth and others as defendants, and as such the cause went to trial, when the Houston Oil Company of Texas, plaintiff in cause 2247, and plaintiff in the consolidated cause, announced to the court that it dismissed its original cause of action against the defendants. The Ainsworths announced ready for trial upon their crossaction and plea for affirmative relief against the Houston Oil Company of Texas, contained in their first amended original answer, filed October 20, 1914, and the case thus made went to trial, resulting in a verdict and judgment for the defendants in the consolidated cause for 640 acres undivided interest in the Uriah Davidson league.

The trial court appointed commissioners to partition the land between the plaintiff and the defendants, with instructions to so survey and segregate the 640 acres as to include the Ainsworth improvements. The commissioners appointed partitioned the land, surveyed out the 640 acres so as to include the improvements, reported back to the court, and at a later day in the term the report of the commissioners was ratified by the court and final judgmnent entered decreeing the particular 640 acres of land to the defendants Ainsworth in accordance with the report of the commissioners appointed to partition the said land.

It appears also from the record that 640 acres of land, as described by metes and bounds in the pleadings of both parties, could not be surveyed out of the Uriah Davidson league, and that, taking the beginning point, and following the field notes as given in the pleadings, there could be only about 294.4 acres of the Uriah Davidson league contained in said field notes.

In the two suits above mentioned there were other parties than the Houston Oil Company of Texas and the Ainsworths, but they were disposed of during the proceedings, so that they have no interest in the appeal, and it is not necessary to mention them here. So the issues before us, as presented by the record, is as to the defendants' right to recover on their plea of ten-year statute of limitation and the plaintiff's right to recover on its record title from the sovereign of the soil.

The plaintiff showed in it record title from the sovereign of the soil; so, if the defendants finally recovered, they must do it upon their plea of the statute of ten years' limitation. Briefly stated, the testimony supporting the ten-year statute of limitation is as follows: Obediah Cook settled on the land in controversy in the latter part of 1858, or early part of 1859, and built a dwelling house and the sundry outhouses incident to a home, and he lived there about a year, cleared a field and cultivated it, and then sold out to Tom Brady, and Brady lived there and farmed the place until the War opened, and he then sold to George Oglesbee and went to the army. Oglesbee lived on the place until some time after the War, and he sold out to Cave Johnson, and Johnson lived there and cultivated the place a year or two, and sold to Buck Hooks, who rented the place for a negro named Bob Arline, and he and George Womack cultivated it a year. Buck Hooks then sold to Frank Womack, and Frank Womack lived on and cultivated the place three or four years, and sold to Ol Gilder, who sold it in about six months to one year to Joe McClusky, and he lived on it about six or seven years until he sold it to U. M. Gilder by deed dated July 22, 1882. This is the first actual deed introduced in evidence and the first time it occurs in the record that any land is described by metes and bounds. This deed gives substantially the description described in the pleadings, and calls for 640 acres of the Uriah Davidson league. U. M. Gilder sold to J. S. Kempner in February, 1883, and Kempner sold to A. L. Ainsworth January 19, 1884. These last conveyances were introduced in evidence, but it is not necessary to quote the deeds in the record. No claim to a specific 640 acres by metes and bounds seems to have been made by any of the vendors and vendees until the deed from McClusky to Gilder in 1882, but the testimony does show that all of the parties were claiming 640 acres of the Uriah Davidson league. There is evidence showing the continuous, consecutive, adverse occupancy, claim, and control of the land from 1858 to 1884, many witnesses testifying to such facts, and several deeds were testified about as passing between the parties, but the deeds could not be introduced in evidence; but up to the execution of the deed from McClusky to Gilder in 1882 the evidence shows a conveyance of the improvements and claim by each party to 640 acres of land, without any specific boundaries.

Appellant's first assignment of error is substantially that the evidence is not sufficient to support a verdict for 640 acres or 150 acres of land under the ten-year statute of limitation, because it does not show consecutive occupancy and claim by appellees and those under whom they claim for a period of ten years, exclusive of the suspension of the law of limitations from 1865 to 1870.

Appellant's second assignment of error is practically the same as the first, except that it asserts that the plaintiff wholly failed to show continuous possession of any of the land in controversy for as much as ten years subsequent to the 22d day of July, 1882, the date of the deed from McClusky to Gilder, and that it is shown by the evidence that McClusky held under a deed and the contents of said deed, and what it conveyed is not shown by any legally sufficient evidence.

Then follows like statements as to deed from 01 Gilder to McClusky, from Frank Womack to 01 Gilder, from Buck Hooks to Frank Womack, from Cave Johnson to Buck Hooks, and Buck Hooks to George Oglesbee, and George Oglesbee, etc., and that, it being shown that these parties claimed under deeds, and not otherwise, while they were in possession of the land in controversy, and there being no legally sufficient evidence upon which the jury could find what land those deeds conveyed, the evidence is therefore insufficient to support a judgment for 640 acres or 160 acres of land under the ten-year statute of limitation.

The third assignment is that the trial court erred in not giving appellant's special charge instructing a verdict for the appellant.

Plaintiff in error presents four propositions under the first, second, and third assignments of error, and treats them conjunctively, and, the assignments being so analogous, we consider them as plaintiff in error has presented them in its brief.

The first proposition presented is:

"Possession taken and held under a deed or deeds is limited to the land described therein, and plaintiffs below having shown that several of the parties with whom they claim privity of estate, and upon whose possession they relied, and whose possession was essential to mature the title asserted by them, had taken and held such possession under and by virtue of written deeds, and there being no evidence to show what lands were included in said deeds, they thereby wholly failed to show themselves entitled to any specific land, or any land, and the verdict and judgment appealed therefrom is therefore unsupported by the evidence, and the court should have given the peremptory instruction requested by defendant below, who is here plaintiff in error.

Supporting this proposition the following authorities are cited: Hitchler v. Scanlan, 83 Tex. 569, 19 S.W. 259; Frazer v. Seureau,60 Tex. Civ. App. 416, 128 S.W. 649; Cragg v. Cartwright, 56 Tex. 422; Carley v. Parton, 75 Tex. 102, 12 S.W. 950; York v. Lumber Co.,169 S.W. 187.

The second proposition under first, second, and third assignments of error is:

"Plaintiffs [below] and those under whom they claim not having claimed a specific tract of land, described in the deeds from McCluslky to Gilder, from Gilder to Kempner, and from Kempner to A. L. Ainsworth, plaintiffs' ancestor, for as much as ten years during their possession of any portion thereof, they were not entitled to recover the specific tract described in such deeds and sued for by them."

The following authorities are cited under this proposition: York v. Thompson Lbr. Co., 169 S.W. 187; Louisiana Texas Lbr. Co. v. Kennedy,103 Tex. 297, 126 S.W. 1110; Louisiana Texas Lbr. Co. v. Stewart,61 Tex. Civ. App. 255, 130 S.W. 199.

The third proposition is:

"As plaintiffs below showed no right to recover other than through the deed from McClusky to Gilder, undertaking to convey a specific tract of land, described by metes and bounds, fully identified by calls for natural objects on the ground, they were not entitled to recover any land other than that so described, citing Connor v. Mangum et al., 127 S.W. 256."

The fourth proposition presented under the first, second, and third assignments of error is substantially that, since the plaintiffs below did not acquire title to the specific tract of land described in the deed from McClusky to Gilder, they could have acquired, at most, only an equity or equitable right, which, if seasonably asserted against McCluslky, might have entitled them to have acquired his title if he had any at the date of the conveyance to an unlocated interest in the Davidson league, and through him to have asserted such right against the holder of the record title, and that to assert such title it would be necessary for the defendants in error to show that the Houston Oil Company of Texas was not an innocent purchaser for valuable consideration, without notice of plaintiffs' equity in the land; that the burden of proof is always on the party asserting an equitable right or an equitable title against the holder of the legal title, and because plaintiffs failed to discharge such burden of proof they failed to show grounds for recovery.

As we understand the authorities cited, they are not applicable to the case at bar. In Hitchler v. Scanlan, 83 Tex. 569, 19 S.W. 259, in so far as it deals with limitation title, it holds that it is error for the trial court to charge on the five-year statute of limitation when no evidence was introduced as to payment of taxes, and that pleadings and proof under the ten-year statute of limitation did not cure such error. The citation 56 Tex. 422, is an error, and was intended, evidently, to be Craig v. Cartwright, 65 Tex. 422. That case does decide specifically that one holding as a naked trespasser under an unrecorded deed will mature his title, if left undisturbed for the required time, to the amount of land and to the extent of the boundaries called for in his deed, provided it be within the amount of land that may be so acquired under the law; but it does not hold that one may not recover other and different land under an alternative plea, and judgment of the court based on the proof and such plea, than a tract specifically described in another part of the pleadings. So, too, in York v. Thompson Lbr. Co.,169 S.W. 187. In this case Chief Justice Pleasants says:

"Appellant had not claimed the specific tract of 160 acres described in the petition for ten years prior to the institution of this suit, and there is neither allegation nor proof that to award him the 160 acres described in his answer would be a fair and equitable partition of the land between him and the appellee. Upon this state of the pleading and evidence the trial court was not authorized to render judgment for appellant for said 160 acres" — citing La. Tex. Lbr. Co. v. Kennedy, 103 Tex. 297, 126 S.W. 1110; La. Tex. Lbr. Co. v. Stewart, 61 Tex. Civ. App. 255, 130 S.W. 199.

He says further:

"There is no alternative plea that, in event it should be found that appellant was not entitled to recover the specific 160 acres described in his answer, he have judgment for 160 acres, including his improvements to be surveyed and designated under direction of the court, but, on the contrary, appellant expressly ``disclaims any right, title, or interest in and to any of the land sued for herein, save and except' the specific 160 acres described in his answer. But for the appellant's disclaimer the court might, under the prayer for general relief, have rendered judgment giving appellant 160 acres of land, including his improvements, and directing a survey thereof, but no relief could be granted inconsistent with the facts stated in the petition, and judgment could not have been rendered in appellant's favor for land in which he had expressly disclaimed any right, title, or interest" — citing Herring v. Swain, 84 Tex. 523, 19 S.W. 774; Milliken v. Smoot, 64 Tex. 171; McIlhenny v. Todd. 71 Tex. 400, 9 S.W. 445, 10 Am. St. Rep. 753.

None of the authorities cited by plaintiff in error dispute the proposition that, where one claims land described by metes and bounds in one part of his pleading, but in the alternative pleads for the statutory amount allowed under the statute of limitation in case he should be in error as to his right to recover the specifically described tract of land, and praying for commission to partition the land, and so survey it as to include his improvements, and where proof is introduced to sustain such plea, and the jury finds in his favor, and the commission is appointed, its report made, approved by the court, and final judgment entered accordingly, that such judgment is without warrant of law.

In the instant case the land in controversy is presumed to be described by metes and bounds by both of the parties to the suit; and the appellee pleaded in the alternative that, if he should be mistaken as to his right to recover the specific 640 acres described in his pleadings, he was the owner of 640 acres of the Uriah Davidson league, and prayed for partition of the land by the court, and that his 640 acres be so surveyed out of the league as to include his improvements. Under these pleadings and the evidence and proper instructions of the able trial court, the jury found for the appellee 640 acres of the Uriah Davidson league, commissioners were appointed by the court, and the 640 acres of land was surveyed and segregated from the league for appellees, and upon the report of the commission to the trial court the report was approved and final judgment was entered for the appellees for the 640 acres so partitioned out of the league by the commissioners.

In the case of Lumber Co. v. Kennedy, 103 Tex. 297, 126 S.W. 1110, Judge Brown said that the proper course to pursue where one claims the statutory quantity of land by limitation is by partition under order of the court. The same doctrine is laid down in Bering v. Ashley, 30 S.W. 838, Judge Williams writing the opinion.

In the instant case there was ample time for the maturity of title under the ten-year statute of limitation before the land was ever described by metes and bounds, and under proper instructions of the trial court the jury found 640 acres undivided interest in the Uriah Davidson league in favor of the appellees. There is evidence to support such finding, and we think the trial court pursued the proper course to determine what land the appellee should have.

The fourth proposition asserts that, at best, the appellees could have acquired no more than an equitable title under the pleadings and the proof. We do not so understand the law. The title acquired by limitation is a legal title, and not an equitable title, and, so far as we are informed, this is a well-defined proposition of law by our Supreme Court. Burton's Heirs v. Carroll, 96 Tex. 326, 72 S.W. 581; East Texas Land Imp. Co. v. Shelby, 17 Tex. Civ. App. 685, 41 S.W. 542; MacGregor v. Thompson et al., 7 Tex. Civ. App. 32, 26 S.W. 649. See, also, the authorities cited in these last cases.

Such being the law, we do not think that the burden was upon the appellee to show that the appellant was not a purchaser for value and without notice of his rights. See, also, the following authorities: Paschal's Digest, art. 4624; Charle v. Saffold, 13 Tex. 111; Moody v. Holcomb, 26 Tex. 719; Word v. Drouthett, 44 Tex. 367; Paschal's Digest, art. 998; Rev. Stat. art. 1105.

But, if the title asserted by the appellees had been only an equitable title, we think the rule is to the reverse of what is claimed by the appellant. It would have devolved upon the Houston Oil Company to show by a preponderance of the evidence that it was a purchaser for value, and without notice of the Ainsworths' equity in the land, if an equity had been the only thing asserted by them. Baldwin v. Root, 90 Tex. 552,40 S.W. 3. But the Ainsworths were asserting a direct legal title under the statute of ten years' limitation to the 640 acres of land, and, as we have said heretofore, we think the law pronounces such a real, and not an equitable, title.

The fourth assignment of error is:

"The court erred in refusing to give special charge No. 4 requested by the defendant, Houston Oil Company of Texas and Maryland Trust Company, * * * said special charge No. 4 being as follows, to wit: ``* * * Gentlemen of the jury, should you find for the plaintiffs or either of them under the charges of this court your verdict for any land or any part or interest in any land involved in this suit, you cannot in any event find in their favor for any land or interest not embraced within the field notes of the deed introduced in evidence under which plaintiffs claim, particularly the field notes of that deed introduced in evidence, dated July 22, 1882, from Joseph McClusky to U. M. Gilder, the same being as follows: [The description heretofore given follows in this special charge.] And it being shown by the evidence, which is undisputed in the case, the said field notes embrace not to exceed 294.4 acres lying upon or being a part of the Uriah Davidson league, and plaintiffs not having shown any right whatever to any land not upon the Davidson league by virtue of ten years' limitation under which they claim, you cannot in any event find in favor of plaintiffs, or any of them, for any land or interest in the land involved in this suit, exceeding the said number of acres, to wit, 294.4 acres."

If the appellees had no other plea than the one describing the land by metes and bounds, this assignment might be pertinent, but they having presented an alternative plea, as hereinbefore stated, we do not think the assignment is well taken, under the pleadings and proof of this case, and what we have heretofore said in passing upon the first, second, and third assignments of error is sufficient for a disposition of the fourth assignment of error. The fourth assignment of error is overruled.

The fifth assignment of error is but a repetition in different form and verbage of the first and second assignments, and what we have said in passing upon the first and second assignments is sufficient for a disposition of the fifth assignment of error.

No error appearing, the cause is affirmed.