Bankers' Mortg. Co. v. Higgins , 4 S.W.2d 102 ( 1927 )

Having refrained on original disposition from maturing the individual conclusions now expressed into a dissent, partly at least to await the fuller light of a rehearing, after that aid, I am unable either to yield or longer withhold them; they are:

1. Annie C. Winston did not assign the legal title to the land to H. Masterson along with the transfer of the vendor's lien notes to him, hence, up until his purchase thereof under his own foreclosure sale on March 1, 1892, he had no title whatever thereto, his sole right then being that of a lienholder to have it sold in satisfaction of the purchase-money notes held by him, and throughout that period there was in consequence no such privity of title or interest between him and Johnson Higgins as prevented the statute of limitation from running against him in favor of, or, as required, the latter to specially bring home to Masterson notice of the adverse character of his holding. Farmers' Loan Trust Co. v. Beckley, 93 Tex. 267, 54 S.W. 1027; Smith v. Pate,91 Tex. 596, 45 S.W. 6; Robertson v. Wood, 15 Tex. 1, 65 Am.Dec. 140; White v. Cole, 87 Tex. 500, 29 S.W. 759; Russell v. Kirkbride, 62 Tex. 455; Stephens v. Matthews' Heirs, 69 Tex. 341, 6 S.W. 567; Barrett v. McKinney (Tex.Civ.App.) 93 S.W. 241; Converse v. Ringer,6 Tex. Civ. App. 51, 24 S.W. 705.

2. In the absence of a duty upon Johnson Higgins' part to bring home to H. Masterson, particularly, notice of his adverse holding of the land, the evidence abundantly justified, if it did not compel, the finding that his adverse possession against all the world (Masterson included) begun at some unfixed date (that is, when the notes were transferred to Masterson) prior to March 1, 1892 — continued unbrokenly so from that time up until at least March 17, 1910, since the undisputed evidence shows that it was never disturbed, or in any way changed, prior to this latter date by a writ of possession or other action under Masterson's judgment of foreclosure. It therefore became wholly immaterial that the trial court limited the period of appellees' claimed limitation to the time between March 1, 1892, and March 17, 1910, since there was more than 10 years shown anyway. Thomson v. Weisman, 98 Tex. 172, 82 S.W. 503; Pendleton v. McMains, 32 Tex. Civ. App. 575, 75 S.W. 350.

3. The deed from H. Masterson to the South Texas Development Company, of date September 18, 1905, was void on its face, in that it neither itself so described any land nor furnished such means of describing any as that it could be identified on the ground, hence could not be aided by the consideration of extrinsic or parol evidence. Continental Supply Co. v. M., K. T. Railroad Co (Tex.Com.App.) 268 S.W. 444; Id. (Tex.Civ.App.) 250 S.W. 1095; Hermann v. Likens, 90 Tex. 448, 39 S.W. 282; Norris v. Hunt, 51 Tex. 609; Douthit v. Robinson, 55 Tex. 74; Pfeiffer v. Lindsay, 66 Tex. 125, 1 S.W. 265; Bassett v. Sherrod,13 Tex. Civ. App. 333, 35 S.W. 316; Myers v. Maverick (Tex.Civ.App.)27 S.W. 950; Curdy v. Stafford (Tex.Civ.App.) 27 S.W. 824; Crumbley v. Busse, 11 Tex. Civ. App. 323, 32 S.W. 441; Coker v. Roberts, 71 Tex. 602,9 S.W. 667; Giddings v. Day, 84 Tex. 608, 19 S.W. 682.

4. That the instrument Johnson Higgins admitted having signed, bearing date May 20 (also referred to as being of date May 17), 1910, should not, in the circumstances, be given the effect of a conveyance of the title to the land here involved to the South Texas Development Company. His adverse holding of it for more than 10 years prior to this date referred to in paragraph 2 hereof, and found by the jury, was undisputedly the actual occupancy of it by himself and his family as their homestead, which tenure in fact so continued undisturbed, notwithstanding this instrument, up until this trial in 1925, thereby completing an unbroken period of 40 years. By the uncontroverted proof this document was signed on the premises by Johnson Higgins only without reading it, his wife also being there but not being asked to sign, was wholly without consideration, and, while not acknowledged, was executed by him under circumstances which, if that had been involved, would have raised the issue of duress.

There was, it seems to me, sufficient pleading upon appellees' part setting up the homestead claim of Johnson Higgins; the suit was regularly one in trespass to try title, the appellees' first, among other defenses, interposing a plea of not guilty; appellant then replied by supplemental petition, for the first time specifically declaring upon the instrument under consideration; to this, by supplemental answer, the appellees responded by repeating their plea of not guilty and specially pleading the homestead defense as follows:

"IV. The defendants especially deny that they were ever the tenant of H. Masterson or any one else under whom the plaintiff claims. The defendants say that Johnson Higgins entered into the possession of the land described in the plaintiff's petition and in this defendant's first amended original answer under a verbal gift from his mother and father in the year 1884 and made permanent and valuable improvements upon said property at the time and after such verbal gift and has continually remained in possession of said property from the time and after such verbal gift and has continually remained in possession of said property from the time that he entered on the place either in person or by tenant and such possession had not been disturbed. Defendants say that the possession of said Higgins was peaceable and adverse to H. Masterson and all others. Defendants say that the said Johnson Higgins resided upon said land, claiming the same as his own for over 30 years, and thereafter has been in peaceable and adverse possession of said land up until the present time, and the claim of the plaintiff or any one under whom the plaintiff claims was never heard of by the defendants until the Gulf Production Company discovered a salt dome and a prospective oil field in the neighborhood of the defendants' land, and the claim now by the plaintiff in this case is not made in good faith in an honest belief that they have any title to the land in controversy."

There was no exception to these averments, and, even if proof of the homestead claim could properly be said not to have been available under the reiterated plea of not guilty, they were clearly enough, I think, to let it in. That proof showed without contradiction that Johnson Higgins had then been in possession of and claiming this property as the home of himself and his family for 25 years. The title to it as a homestead had therefore long since been perfected.

Just how in such circumstances a purported conveyance by the husband alone can pass any title to the homestead does not readily occur. Bridges v. Johnson, 69 Tex. 714, 7 S.W. 506; Coler v. Alexander,60 Tex. Civ. App. 573, 128 S.W. 664; Lumpkin v. Woods (Tex.Civ.App.)135 S.W. 1139; Marble v. Marble, 52 Tex. Civ. App. 380, 114 S.W. 871; Durham v. Luce (Tex.Civ.App.)140 S.W. 850; Crutcher v. Sanders (Tex.Civ.App.) 145 S.W. 658; Powell v. Ott. (Tex.Civ.App.) 146 S.W. 1019; Harle v. Harle (Tex.Civ.App.)166 S.W. 674; Parker v. Schrimsher (Tex.Civ.App.) 172 S.W. 165; Clark v. Tulley (Tex.Civ.App.) 200 S.W. 605; Constitution of Texas, art. 16, § 50; Revised Statutes of 1925, art. 1300; Hennessy v. Savings Loan Co., 22 Tex. Civ. App. 591, 55 S.W. 124; Williams v. Rand,9 Tex. Civ. App. 631, 30 S.W. 509.

5. This instrument from Johnson Higgins, therefore, not standing in the way, and the 10 years' period of limitation having been completed under the jury's verdict prior to its date, nothing was left that could have properly caused the denial of a judgment in favor of the appellees.

Against the ever-steady pressure of individual duties of office, the privilege that was much desired of elaborating upon these views has been denied; but under them, whatever of error may have inhered in any of the learned trial court's theories in submitting the cause as was done, its judgment should have been affirmed. This protest is earnestly entered at this court's refusal to grant the motion for rehearing, and so order.