Wm. M. Rice Institute v. Goolsbee

On Motion for Rehearing.

At a former term of this court we affirmed the judgment of the court below as to a part of the land involved in this suit and reversed said judgment and rendered a judgment for appellant for the remainder of said land. Appellee in due time filed a motion for rehearing, and the decision of this motion was postponed, and the motion carried over from term to term by orders of this court made and entered in the minutes of the court. The nature and result of the suit and the material facts shown by the evidence are sufficiently stated in our former opinion.

As shown by our former opinion herein, we reversed and rendered the judgment of the court below as to all of the 160 acres of land involved in the suit except that portion covered by appellee’s improvements and shown to have been in his actual possession, on the ground that the small amount of appellant’s land shown to have been in appel-lee’s possession was, as a matter of law, insufficient to charge appellant with notice of appellee’s claim to 160 acres of his land. In view of the holding of the Supreme Court in the recent case of Smith v. Jones, 132 S. W. 469, we have concluded that we erred in reversing the judgment on this ground. The possession shown by the evidence was sufficient to raise the issue of notice to appellant of the adverse claim of appellee to the whole of the 160 acres, and that issue having been decided by the jury in appellee’s favor, and the sufficiency of the charge submitting said issue not being complained of, the judgment should not be reversed on this ground.

While the undisputed evidence shows continuous use and cultivation of the field on the Sapp survey since 1879, there is evidence in the record which would sustain a finding that appellee’s improvements on the 160 acres of land were unoccupied, and no part of said 160 acres was used or cultivated by appellee or any one for him from the spring of 1901 to the spring of 1902. During this time ap-pellee’s farm on the land owned by his wife in the Sapp survey was cultivated by R. L. Pope as a tenant of appellee. Pope testified: “I believe that Mr. Goolsbee moved off of that place in 1899. It was the last part of the year, I think, that Mr. Goolsbee moved off. Then I-Iy. Cluff moved on it, and was there the year 1900 is the way I remember it; and Henry Gluff left there in March or April of the next year, and he was on that place one year and then up until March or April of the next year, making it 1901. X had place then for the balance of the year. Q. What did you have — did you have anything to do with the patch and all west of the house, did you work any part of that?. A. No, sir. (Plaintiff objects to that as leading.) Witness states: The land lying east of the house, on the east side of the road is the land that I worked. There wasn’t any land worked west of the road after I had taken charge of it. I don’t think there was any garden; I don’t remember about that very sure, and won’t say positive. There was no one living there in 1901. The1 first party that moved in there after Henry Guff moved out I think was Bryant Jefferies. He moved in there in the spring of the next year, 1902, I believe it was. I do not remember what month it was; it was tolerable early in the spring, about March or April. He moved in there about 10 or 11 months — probably 12 months • — after Henry Cluff left the place, but I couldn’t say as to what time he went there, because I don’t remember.” The evidence does not conclusively show a claim by appel-lee and his grantor to the specific tract of 100 acres in suit for 10 years prior to the spring of 1901. T. E. Goolsbee, from whom ax>pellee purchased, testified that he did not claim this specific 160 acres until he had it surveyed, and that he had the survey made in the summer of 1890 or 1891. The surveyor who did the surveying testified that according to his recollection he made the survey in 1896. Upon this testimony the jury might have found that appellee did not claim the specific 160 acres sued for until 1896. If this is true, it follows that a break- in the possession and occupancy of the land from the spring, of 1901 to the spring of 1902 would defeat appellee’s claim of title by limitation.

Such being the state of the evidence the appellant requested the court to charge the jury as follows: “You are instructed that the possession, use, and enjoyment of the farm on the Addison Sapp survey is not such possession and enjoyment and use as will extend to any part of the 160 acres on the I. & G. N. No. 2.” The facts above stated called for this charge, or one of similar nature, and it was error for the court to refuse to give it This error requires a reversal of the judgment.

At the last sitting of this court we entered an order granting appellee’s motion for rehearing and affirming the judgment of the court below. That order is set aside upon our own motion, and in lieu thereof it is ordered that the motion for rehearing is | granted, and the judgment of the court below reversed and the cause remanded. Reversed and remanded.