Opinion
No. 4193.
May 19, 1932. Rehearing Denied June 2, 1932.
Error from District Court, Rusk County; R. T. Brown, Judge.
Action by Henderson (Hence) Smith and others against Mrs. H. C. Minor and others. Judgment for defendants, and plaintiffs bring error.
Affirmed.
This suit was commenced by Henderson (Hence) Smith and Calvin Smith and plaintiffs in error Joe Smith, H. W. Smith, Fate Smith, Loda L. Robinson, joined by her husband, Harper Robinson, Proncell Woods, and W. J. Durham by a petition filed March 2, 1931. As so commenced, it was against defendants in error Mrs. H. C. Minor, widow of H. C. Minor, deceased, Virgil Minor and Blanch Florence, children of said H. C. Minor, and Hamp Florence, husband of said Blanch Florence, and, according to the prayer in said petition, was to cancel a deed alleged to be of record in Book 36, at page 236, of the Deed Records of Rusk county, whereby a described part of the Wm. Killen survey in said county was conveyed by parties not named in the petition to said H. C. Minor during his lifetime. It seems that said Henderson (Hence) Smith and Calvin Smith died after the suit was commenced, and that the plaintiffs in error named above, joined by plaintiffs in error Minnie L. Smith, Fannie Smith, wife of H. W. Smith, and Parlee Smith, wife of Joe Smith, continued the prosecution of the suit by an amended petition filed April 11, 1931. In said amended petition it was alleged that during his lifetime, to wit, about 1889, said H. C. Minor, in consideration of $1,000 paid to him, by a warranty deed conveyed said part of said Killen survey to said Henderson (Hence) Smith, who then took possession of same, and with his wife and their children occupied and used it as their homestead until 1928. It was alleged that plaintiffs in error Joe Smith, H. W. Smith, Fate Smith, and Loda L. Robinson were the children and only surviving heirs of said Henderson (Hence) Smith and his deceased wife, Esther Smith, and as such were the owners of said part of said Killen survey, and had conveyed an undivided one-half of such part to plaintiffs in error Woods and Durham. It was further alleged that plaintiffs in error and those under whom they claimed had acquired title to the land by force of the statute of limitations. Notwithstanding the allegations above referred to indicating that plaintiffs in error were claiming title under said H. C. Minor by force of a deed from him to Henderson (Hence) Smith, alleged to be lost, the only specific prayer in said amended petition was one that the deed to said II. C. Minor, recorded in said Book 36, at page 236, be canceled as a cloud on their title to the land. In an amended answer filed July 7, 1931, defendants in error denied that H. C. Minor ever conveyed the land to Henderson (Hence) Smith, and denied that said Henderson (Hence) Smith was ever in possession of the land otherwise than as a tenant at will of said H. C. Minor, during his lifetime, and after his death of his widow, defendant in error Mrs. H. C. Minor. In said amended answer defendants in error set up the three, five, and ten year statutes of limitations as a bar to any right in plaintiffs in error to recover the land. They set up further that plaintiffs in error other than Woods and Durham by a deed had undertaken to convey an interest in the land to said Woods and Durham, and alleged that same constituted a cloud on their (defendants in error's) title. The prayer in said answer was that said deed to Woods and Durham be canceled, that a lis pendens notice alleged to have been spread upon the records of Rusk county be canceled, because a cloud on defendants in error's title, for damages in the sum of $10,000, and for general relief. In a motion filed the day said amended petition was filed, to wit, said July 7, 1931, plaintiffs in error declared they did not wish to further prosecute their suit, and prayed that same be dismissed by the court. The judgment from which the writ of error was sued out was rendered August 3, 1931. It appears from, recitals in said judgment that the amended answer was filed before the motion of plaintiffs in error for a nonsuit was filed, and that said motion was granted, but on the condition that the dismissal of plaintiffs in error's suit was not to affect the right of defendants in error to be heard on the prayer for affirmative relief in their said amended answer. It appears, further, from said recitals, that defendants in error's part of the suit was set down for a hearing on July 18, 1931, and that plaintiffs in error, depositing a jury fee of $5 with the clerk, had the case placed upon the jury docket. By said judgment the court awarded defendants in error a recovery of the land, canceled the deed to Woods and Durham, and canceled the lis pendens notice as prayed for.
B. F. Gafford and Durham Dent, all of Sherman, for plaintiffs in error.
Brachfield Wolfe, of Henderson, for defendants in error.
As we view the record, there is no merit in either of the three contentions presented in the brief of plaintiffs in error. The first and second of the three are on the theory that the amended answer of the defendants in error in which they sought affirmative relief was not filed until after the motion of plaintiffs in error to dismiss their suit was filed, whereas it appears from recitals in the judgment, as shown in the statement above, that said amended answer was filed before said motion to dismiss was filed. The rule applicable in that state of a case has been stated to be that the plaintiffs "must be held to have had notice of every fact pleaded by the defendants prior to the time they announced their decision to take a non-suit." 15 Tex.Jur. 267; Thompson v. Gaither (Tex.Civ.App.) 45 S.W.2d 1106. The third one of the three contentions is that the "evidence was insufficient to support the judgment." As shown in the statement above, defendants in error claimed title in themselves by force of the five and ten year statute of limitations. In their petition plaintiffs in error alleged that the deed to H. C. Minor was duly recorded. There was testimony that H. C. Minor bought the land in 1884; that thereafter as long as he lived he claimed to own it; that after his death in 1915 to the time of the trial his widow and children claimed to own the land; that during all that time they had it fenced, cultivated it, and paid taxes assessed against it. We see no reason why it should be held that the evidence specified was not sufficient to support the pleas of limitation under the five and ten year statutes. Articles 5509 and 5510, R.S. 1925.
The judgment is affirmed.
On Plaintiffs in Error's Motion for Rehearing.
A contention (among others) in the motion is that this court erred "in finding and holding (quoting) that the trial court did not err in instructing the jury to find a verdict for the defendants in error and affirming the trial court's judgment, for the reason that the evidence was not conclusive as to the title of the defendants in error to said land by limitation, and such testimony was not without contradiction that defendants in error had had and held exclusive possession and control of such land for a period of ten years immediately prior to the date this lawsuit was filed in the trial court."
Perhaps it is a sufficient answer to the contention to say this court did not so find and hold. Plaintiffs in error's insistence when the record was first before us was (as stated in the opinion disposing of the appeal) that the "evidence was insufficient to support the judgment." It was with reference to that contention, and not the one now urged, that this court looked to and considered evidence in the statement of facts, and thought, as it still thinks, that same warranted a finding that defendants in error and those under whom they claimed had title to the land by force of the ten-year statute of limitations, if in no other way. In holding as it did, this court also looked to the allegations in plaintiffs in error's petition, understanding, as it did, contrary to the view of plaintiffs in error, that it was proper to consider such allegations. Burford v. Burford (Tex.Civ.App.) 40 S.W. 602; Jones v. Wagner (Tex.Civ.App.) 141 S.W. 280. In said petition it was alleged that about the year 1889 Henderson (Hence) Smith purchased the land of H. C. Minor, afterward deceased; that defendant in error Mrs. H. C. Minor was the widow of said H. C. Minor, and that the defendants in error Virgil Minor and Mrs. Blanch Florence were his children; that he had no other living heirs; that they (defendants in error) claimed title to the land by force of a warranty deed or record in Rusk county, conveying same to H. C. Minor, who conveyed same, they alleged, to said Henderson (Hence) Smith. Plaintiffs in error's complaint in the motion seems to be largely based on the notion apparently entertained by them that it was necessary for defendants in error, before they could claim by force of said statute, to prove that they had the land fenced. It was not necessary they should so prove (2 Tex.Jur. 90), but, as a matter of fact, evidence was adduced at the trial showing the land was fenced.
The motion is overruled.