Kelly v. Wilson , 283 S.W. 696 ( 1926 )

Construing the partition deed of September, 1888, referred to in the statement above, the Galveston Court of Civil Appeals held, when the cause was before it, that the effect of the instrument was to pass the title to the land in controversy to Mrs. Kate Kelly, and that plaintiff in error, owning her title, was entitled to recover all of that land, "except (quoting) such portion or portions thereof as defendants (defendants in error here) may show title to under their plea of limitation." Plaintiff in error insists that said holding of said court was conclusive of the contention of defendants in error, so far as it was that such was not the effect of said deed.

The rule in the other jurisdictions seems to be as plaintiff in error asserts it to be (4 C.J. 1097, 1099), but the rule in Texas is otherwise, and, it seems, would require the overruling of the contention of plaintiff in error, if it clearly appeared that the holding in question was erroneous. Green v. Priddy, 112 Tex. 567, 250 S.W. 656; Amsler v. Cavitt (Tex.Civ.App.) 271 S.W. 139; Corcanges v. Childress (Tex.Civ.App.)280 S.W. 892; Bank v. Brown (Tex.Civ.App.) 281 S.W. 300. However, we not only think it does not so appear, but, on the contrary, think it clear that the effect of the deed was as determined by said Court of Civil Appeals.

In that view of the case, in disposing of the appeal it would not be necessary to do more than to refer to the opinion of said court on the former appeal for a statement of the reasons for the holding, and then determine whether the instructions of that court with reference to the claim of defendants in error based on the statute of limitations had been, or must have been, complied with or not, but for the contention of defendants in error, presented for the first time in the amended answer on which the last trial was had, that it was due to a mistake of the person who wrote said partition deed that the land in controversy was described therein as having been set apart to Mrs. Kelly instead of to defendant in error Ella Wilson. On the theory of such a mistake defendants in error pray that the deed be so reformed as to correct same.

It will not be necessary to determine whether such a mistake in the partition deed was shown or not, for, if it was the right of defendants in error to have the deed reformed as prayed for, it was barred by the statute of limitations invoked by plaintiff in error. Defendants in error could not claim ignorance of the mistake after they were served with notice of plaintiff in error's suit in October, 1914, and they did not seek a correction thereof until November 15, 1924, when their second amended answer was filed. Stone v. Sledge (Tex.Civ.App.) 24 S.W. 697; Tarrant Co. v. McLemore (Tex. Sup.) 8 S.W. 94.

It appeared without dispute in the testimony, and the trial court found the fact to be, that defendants in error had actual possession of a part of the land in controversy from 1871 to the date of the trial. That court found, further, that during said time defendants in error had constructive possession of the part of said land they did not have actual possession of. The court did not find that defendants in error cultivated or otherwise used the land while they had possession thereof, nor did he find that their possession was "peaceable and adverse" within the meaning of the statute (article 5675, Vernon's Sayles' Ann.Civ.St. 1914), but such findings were involved in the judgment rendered in favor of defendant in error Ella Wilson for 160 acres of the land in controversy.

Plaintiff in error insists that said defendant in error Ella Wilson was entitled to claim only the part (about 32 acres) of the land she had inclosed and used, and that the judgment was wrong so far as it was in her favor for a greater quantity of the land in controversy.

It seems that, where the owner of a tract containing more than 160 acres had actual possession of a part of the land, the adverse possession of a claimant thereof under the 10-year statute of limitations (article 5675, Vernon's Sayles' Ann.Civ.St. 1914), cannot be construed as extending beyond the part he is actually occupying, if less than 160 acres, notwithstanding the provision in article 5676, Vernon's Sayles' Ann.Civ.St. 1914, that the possession of such a claimant may be construed to embrace as many as 160 acres. Simkins' Title by Limitation, 152, and authorities there cited.

It was held on the former appeal, the record title to all the land in controversy being in plaintiff in error, and it appearing that he had actual possession of a part of it, that his constructive possession extended to all the part remaining which defendants in error did not have actual possession of, and therefore that defendants in error, by force of the statute, were entitled to claim only the part of the land they had inclosed and used. But we have found no testimony in the record before us showing the plaintiff in error or those whose title he has had actual possession of any part of the land prior to 1898 or 1899, when J. A. Herring as Mrs. Kelly's tenant fenced and thereafter used a part of it as a pasture.

Construing (as we think we should in support of his judgment) the finding of the trial court to be that defendants in error before 1898 acquired title to 160 acres of the land by virtue of the statute of limitations of ten years, defendants in error, and not plaintiff in error, were the legal owners of the 160 acres in controversy when Herring fenced part of it in 1898. In that view of the case, we think the correctness of the conclusion of the court on the former appeal depends upon whether it appeared that plaintiff in error in some lawful way reacquired the title to the 160 acres after 1898. It was not claimed that plaintiff in error ever reacquired the title in any other way than by force of the statute of limitations of ten years, and it is not contended on this writ of error that it appeared from the testimony that plaintiff in error reacquired it in that way. Therefore, we do not think it ought to be held that the judgment in defendant in error Ella Wilson's favor for the 160 acres was unauthorized.

Assignments and cross-assignments not disposed of by what has been said are overruled, and the judgment will be affirmed.

On Motion of Plaintiff in Error for a Rehearing.

Plaintiff in error insists the testimony did not warrant a finding that defendants in error had and held continuous possession of any of the land in controversy for a sufficient length of time after the partition deed of 1888 was executed, and before J. A. Herring, as Mrs. Kelly's tenant, fenced part of it, to perfect title in them by force of the 10-year statute of limitations. In support of the contention, attention is called to the fact that while said deed was dated "September ___, 1888," its execution was not acknowledged by some of the parties to it until February 26, 1889, whereas, as stated in the opinion disposing of the appeal, there was testimony that Herring, as Mrs. Kelly's tenant, fenced a part of the land in 1898 or 1899. Considering the testimony referred to alone, there would be reason for the contention, but, looking to the statement of facts again, we find that Herring himself testified that he leased the land from Mrs. Kelly and fenced it in "the early part of 1900." As the time intervening between February, 1889, and the early part of 1900 was more than 10 years, we cannot say there was no support for the trial court's finding. There was testimony that defendants in error, claiming to own all the land in controversy, were in possession of a part thereof from 1871, and that their possession was continuous, unless it should be held to have been broken by the fact that fences inclosing same were washed away when the land was overflowed by water in 1890 and were not rebuilt at once. It is held, according to Simkins on Title by Limitation in Texas, that "not keeping up a fence is not necessarily an interruption of adverse possession," and the statement is warranted by the authorities cited by the author of the work.

The motion is overruled.