Bartee v. Carter , 100 S.W.2d 378 ( 1936 )

WALKER, Chief Justice. '

This was an action in trespass to try title by appellants, the heirs of Ferdinand Bartee and his wife, Elizabeth Bartee, deceased, against appellees, W. T. Carter & Bros., to recover 640 acres of land, and, in the alternative, 160 acres out of a specific tract of 1411 acres, a part of the Toliver survey in Polk county. Appellants pleaded generally trespass to try title, and specially the 10-year statute of limitation (Vernon’s Ann.Civ.St. art. 5510); they claimed a specific tract of 640 acres on allegations of equitable partition, and, in the alternative, an undivided interest of 640 acres, and further in the alternative, an undivided interest of 160 acres, There were no allegations defining and claiming the specific tract actually held, claimed, and used by Ferdinand and Elizabeth Bartee during the period of occupancy. Appellees answered by demurrers, plea of not guilty, and by special plea of the statute of 5-year limitation (Vernon’s Ann.Civ.St. art. 5509). The trial was to a jury, and judgment was entered in favor of appellees on an instructed verdict.

The evidence received on the trial raised the following fact issues:

(a) Ferdinand and Elizabeth Bartee entered upon the Toliver survey and established their improvements thereon in 1859. They held these improvements jointly, claiming the land actually occupied by them until the death of Ferdinand Bartee in 1870. After his death, his wife, with the children born to her and her deceased husband, continued in possession of the improvements, claiming the same until she married a second time in 1879. Immediately after her second marriage she moved off the Toliver survey and remained off of it for 6 months, but during that time it was occupied and held for her by a tenant. At the end of the 6-month period she moved back on the land and remained there until some time in 1882 — possibly in 1885 — claiming her improvements as she had done continuously since she made her original entry in 1859. Elizabeth Bartee died in 1909. From the time she moved off in 1882 — possibly in 1885 — until her death, neither she nor any of the appellants claimed the land in any way, nor were they in possession of any part of the Toliver survey. After her death none of the appellants asserted any sort of claim to the land in controversy, or to any part of the Toliver survey until 1933, when one of the sons entered upon the land, claiming 640 acres under the possession and claim of Ferdinand and Elizabeth Bartee. The possession of Ferdinand and Elizabeth Bartee was the first possession of the Toliver survey shown by the evidence.

(b) No testimony was offered that Ferdinand and Elizabeth Bartee claimed any land not within their inclosures: Certain testimony was offered by appellants and excluded by the court, but this excluded testimony was on the issues of fact stated above; no part of the excluded testimony was to the, effect that Ferdinand and Elizabeth Bartee, while in possession of a part of the Toliver survey, claimed 640 acres or 160 acres, either by claim of a specific tract -of land, or by claim of an undivided interest.

(c)Appellees claim by a regular chain of title from and under the original grantee. Thus, on the 12th day of June, 1867, Toliver sold and- conveyed the original survey to Charlie Kesler on the recited consideration of “$500.00 to me paid”; this deed, duly recorded in the deed records of Polk county) contained the following habendum clause and warranty: “To have and to hold the same unto the said Kesler his heirs and assigns forever, together with all and singular the rights, members, hereditaments and appurtenances to the same belonging or in any manner incident or appertaining. It being well understood that this conveyance is in the nature of a quit claim deed the said Toliver only warranting the title against all those who claim by virtue of any conveyance under him.”

Appellees offered in evidence deeds in their chain of title, duly recorded in Polk county, executed in 1875, 1876, 1877, 1893, 1894, 1895, 1901, 1909, and 1926. They had a tenant on the land during the years 1876-1886. From 1905 to 1913 John D. Oliver was in possession of a substantial portion of the Toliver survey under a lease contract with appellees’ predecessor in title, William Carlisle & Co., covering all the land in controversy. Appellees and those under whom they hold paid the taxes on the land in controversy, and regularly assessed and paid the taxes from 1905 to 1913. Appellees and those under whom they hold have asserted a continuous claim of ownership from the date of the original grant.

Appellees have many objections to appellants’ brief to the effect that certain exceptions were not reserved in the lower court; that certain issues were not requested by them in the lower court; that the assignments and propositions are too general, etc. All of these exceptions are overruled. The appeal is from a judgment entered upon an instructed verdict. An instructed verdict affords a basis for fundamental error; and if, on the statement made by the parties in their briefs, fundamental error was committed by the lower court in instructing the verdict, it is the duty of the appellate court to review the error. Harlington Land & Water Co. v. Houston Motor Car Co. (Tex.Com.App.) 209 S.W. 145; Wilson v. Armstrong (Tex.Civ.App.) 236 S.W. 755; Independent Farmers’ Gin Co. v. Hander (Tex.Civ.App.) 269 S.W. 1062; Southwestern Settlement & Development Co. v. Village Mills Co. (Tex.Civ.App.) 230 S.W. 869.

Appellants’ first contention reviewable as fundamental error is that they were entitled to an instructed verdict on their prior possession, Harlington Land & Water Co, v. Houston Motor Car Co., supra, and, in the alternative, that the court should have submitted the case to the jury on the issue of a lost deed or muniment of title from the original grantee to Ferdinand and Elizabeth Bartee. These contentions are overruled. While it is the law, as against a trespasser, that the possession need not be “continuous up to and concurrent with the alleged unlawful entry,” Beason v. Williams (Tex.Civ.App.) 229 S.W. 963, 964; 41 Tex.Jur. 544, yet, quoting from the cited paragraph of Texas Jurisprudence, “A possession which has been voluntarily discontinued by the possessor does not give rise to any presumption of title or afford ground for recovery of the land.” In this case, appellants’ ancestors voluntarily abandoned possession of the land in controversy in 1882 — possibly in 1885 — and appellants asserted no claim under the prior possession of their ancestors until 1933, a period of 50 years. Against appellants’ claim of prior possession, appellees entered upon the land under deeds in a regular chain of title from and under the original grantee, executed after appellants’ ancestor abandoned her possession, and held and claimed the land, and paid taxes thereon for a period of 8 years. From the date of the original grant appellees and those under whom they held asserted an active claim to the land and for many years held it by actual possession' — thus, there was a tenant on the land for appellees’ predecessor in title from 1876 to 1886. There was no evidence of a nonclaim by appel-lees to the Toliver survey. These facts constitute a complete answer to appellants’ claim that they were entitled to an instructed verdict on the theory of “prior possession.”

In our judgment the issue of “prior possession” was not raised in appellants’ favor on the undisputed evidence. The record title to the land in controversy was in appellees, with an active claim by them and those under whom they hold to the entire Toliver survey from the date of the original grant, with many years of actual possession, use, and occupancy; the undisputed evidence was to the effect' that appellants abandoned their possession in 1882 — possibly in 1885 — and did not assert any sort .of claim to the land for a period of 50 years. These facts explain appellants’ prior possession and negative the issue that the prior possessors had title. 41 Tex.Jur. 536, 547; Southwestern Settlement & Development Co. v. Village Mills Co. (Tex.Civ.App.) 245 S.W. 975.

The issue of a lost muniment of title in appellees from the original grantee was not raised by the evidence. The existence of a lost deed is not presumed from the mere fact of the occupancy of the land by a claimant; that is only one element of the proof. The evidence must show an open and continuous assertion of title by the claimant, accompanied by the exercise of acts of ownership over the land in question, with a nonclaim by the true owner. The claimant also must as‘sert title to well-defined metes and bounds. In Sulphen v. Norris, 44 Tex. 204, our Supreme Court said: “In all cases where a party seeks to hold by a presumed grant he had to show long possession, adverse exclusion, and to well-defined metes and bounds.”

In 2 Tex.Jur. 24, 26, 27, it is said: “The foundation of the presumption or inference is, in any case, acquiescence by the true owner in the claimant’s assertion of title; and to a finding of acquiescence, it is essential that the owner shall have had knowledge or notice of the adverse claim.”

In this case there was no act of ownership or claim of title beyond the actual inclosures of appellants’ ancestor, and these inclosures were not identified either by the pleading or proof.

On the theories of “prior possession” and “lost deed,” appellants give great importance to the deed from the original grantee to Kesler, executed in 1867. They say that this was a quitclaim deed, giving the world notice of a defect in the title of the original grantee; that the original grantee did not convey the land, but only his right, title, and interest in the land. The character of the Kesler deed does not support appellants’ theories. Substantial consideration was paid by Kesler for the land, and, as stated above, there has been a continuous claim to the land by appellees and those under whom they hold from and under the Kesler deed, with actual entry and occupancy.

On the issue of 10-year limitation we overrule appellees’ contention that, by pleading specially the 10-year statute of limitation, appellants abandoned their general allegations of trespass to try title, and were limited to their limitation claim, and therefore appellants could not rely upon a presumption of title on the theory of prior possession. Of course, it is the established law of this state that a plaintiff in an action of trespass to try title, who specially pleads his title, abandons his general allegations and is restricted to the matter set forth in his special plea. 41 Tex.Jur. 562, and authorities therein cited. But a plea of the statute of limitation is not a special plea within that general rule. Mayers v. Paxton, 78 Tex. 196, 14 S.W. 568; Brownfield v. Brabson (Tex.Civ.App.) 231 S.W. 491. There is authority for the proposition that the plaintiff may plead the statutes of limitation, not merely as a source of title, but as the source of title. Cornish v. Houston Terminal Land Co. (Tex.Civ.App.) 257 S.W. 575. But that rule could have application only where it affirmatively appears upon the face of the petition that the plaintiff is relying only on his limitation title, and appellants’ petition in this case is not subject to that construction.

On their theory of 10-year limitation, appellants advance the following proposition: “At the date of plaintiffs’ entry, and at the date of the deed from Toliver (Toliver to Kesler), plaintiffs’ possession was notice of claim to 640 acres.” As we understand the decisions of our Supreme Court, this proposition does not correctly state the limitation law of this state. It is well settled that the limitation claimant must be not only in actual possession, use, and enjoyment of a part of. the claimed premises, but he must assert an actual claim to the land covered by the limitation statutes; that is, an actual claim to a specific tract of the 640 acres or 160 acres, or an actual claim to his improvements with a claim to 640 acres or 160 acres according tp the statute covering his claim. No inference will be indulged that the limitation claimant is claiming beyond his inclosures; he. must prove the extent of his claim. His possession of a part of the land with proof of use, occupancy, and claim limited to the inclosures, does not raise an inference of claim beyond the inclosures. This was the holding of this court in the recent case of Musgrove v. Foster Lumber Co. (Tex.Civ.App.) 89 S.W. (2d) 287, 288, where we cited and reviewed authorities from the Supreme Court directly in point.

While appellants sustain their theory of limitation to the land actually held by their ancestors, this land was not described and claimed in the pleadings, and was not identified on the ground by the evidence. Therefore the lower court did not err in instructing against this claim. On this point in Musgrove v. Foster Lumber Co., supra, we said: “By their pleadings appellants did not describe the land held and claimed by Doc Kelley under his inclosures, nor was there any testimony locating the inclosures upon the ground. On this statement, finder the authorities, the verdict was properly instructed in favor of appellees, even as to the’ improvements. Manning v. Standard Oil Co. of Kansas (Téx.Civ.App.) 67 S.W.(2d) 919; Furlow v. Kirby Lumber Co. (Téx.Civ.App.) 53 S.W. (2d) 642; Lee v. Kirby (Tex.Civ. App.) 277 S.W. 225.”

The court did not err in excluding the evidence of appellants in support .of the claim of their ancestors. Their testimony did not extend the claim of their ancestors beyond their inclosures, and was therefore immaterial on the issue of limitation, except as to the improvements— and as to the improvements their testimony was immaterial because the improvements were not identified by pleadings or proof.

As the court correctly instructed a verdict in favor of appellees for the reasons stated above, we pretermit a discussion of their claim to the land under their plea of 5-year limitation.

The judgment of the lower court is in all things affirmed.