Opinion
No. 4034.
May 28, 1931.
Appeal from District Court, Bowie County; Geo. W. Johnson, Judge.
Suit by T. D. Buttram against L. B. Coleman and others. Judgment for plaintiff, and defendants appeal.
Affirmed.
The appellee brought the suit to recover and remove the cloud from the title to 20 acres of land. The defendants answered specially averring that they were tenants in common with the plaintiff and had no notice of the adverse nature of his possession of the land, and by way of cross-action set up ownership of one-half undivided interest in the 20 acres of land and asked for its partition. The defendant Jewel Coleman pleaded, as against limitation, his minority.
Plaintiff replied to the cross-action with a plea of not guilty, and, further, by way of cross-complaint, impleaded Mrs. M. E. Coleman, seeking judgment against her on her warranty of title. The plaintiff further sought, in the case of a decree of partition to have the entire community property, of 148 1/2 acres and the 20 acres involved in suit, brought into the suit and partitioned, giving plaintiff the 20 acres and awarding to defendants their interest in the whole of the community estate out of the 148 1/2-acre tract.
T. C. Coleman and his wife, M. E. Coleman, during their married life acquired as community property the 20 acres in suit, a part of the J. E. Browning H.R. survey, and 148 1/2 acres, a part of the J. Levens H.R. survey. The 20-acre tract is located about three-quarters of a mile from the 148 1/2-acre tract. T. C. Coleman and his wife and family resided upon and used the 148 1/2-acre tract as their homestead. There is evidence going to show that T. C. Coleman in his lifetime cultivated a part of the 20-acre tract a part of the time. T. C. Coleman died intestate in June, 1914, and no administration was ever had upon his estate. The defendants, except Mrs. Coleman, are the children of the marriage.
On December 24, 1915, Mrs. M. E. Coleman by warranty deed conveyed by field notes the entire 20-acre tract to plaintiff T. D. Buttram. The deed was filed for record January 30, 1928. The present suit was filed on September 6, 1929. Plaintiff relied for title under the deed and under the statute of limitation of ten years' adverse possession. At the time the deed was made by Mrs. M. E. Coleman to T. D. Buttram, the 20-acre tract was under fence. Mr. Buttram took possession and continuously used the entire 20 acres until the trial of the suit. He used part of the 20 acres for the pasture of cattle, and he cultivated the other part of it. In 1925 he conveyed the whole 20 acres to V. C. Buttram, but continued to use the land for V. C. Buttram, In 1927, V. C. Buttram conveyed back to the plaintiff all the 20 acres. The plaintiff, and V. C. Buttram while he owned it, claimed and visibly used all the 20 acres of land. The plaintiff paid all the taxes on the land. T. D. Buttram knew Mr. and Mrs. Coleman and knew that T. C. Coleman was dead. He testified that at the time of the purchase of the land "Mrs. Coleman represented to me that she had full title to the land. Bascomb Coleman (a son) represented the same to me. I am claiming all of the land. I paid for all of it." In August, 1929, Mrs. T. C. Coleman deeded to the defendants the 148 1/2-acre tract. It was agreed in the trial of the case that the 148 1/2 acres "constituted the homestead of T. C. Coleman and Mrs. M. E. Coleman" and that "the value of the 148 1/2 acres and the interest therein of Mrs. M. E. Coleman was equal to or greater in value than the one-half interest of the defendants in the 20 acre tract." Jewel Coleman, a defendant, testified: "I am the son of T. C. and Mrs. M. E. Coleman. I have lived around Oak Grove all my life. I was 31 years old the 19th day of April, 1930." There was no other evidence as to the age of Jewel Coleman. The 20 acres of land adjoins the village of Oak Grove.
The case was submitted to the jury upon one issue, viz.: "Do you find from a preponderance of the evidence that the plaintiff T. D. Buttram has had and held continuous peaceable and adverse possession of the 20 acre tract of land, cultivating, using and enjoying the same for a period of ten years subsequent to his alleged purchase from Mrs. M. E. Coleman and prior to the institution of the suit?" Answer of the jury: "Yes." The court defined "adverse possession." The court entered judgment in favor of the plaintiff for the title to the 20 acres of land and denying to the defendants, on their cross-action, partition of the land.
L. E. Keeney and N. L. Dalby, both of Texarkana, for appellants.
Pirkey Atchley, of New Boston, for appellee.
It is concluded that the appellants' first proposition relating to the refusal to peremptorily instruct a verdict should be overruled because the acts and circumstances in evidence are fairly sufficient to carry to the jury the issue of whether or not the appellee's possession became adverse to the appellants as cotenants. The appellee, who was a stranger to the title in the first instance, purchased the entire tract from the mother of the appellants, in the information and upon the belief that the mother owned the full title, and took immediate possession and visibly used and exclusively claimed as his own all the land from December, 1915, to the date of the trial in 1929. He also paid all the taxes on the land. The appellee's open and visible use and claim of ownership of all the land was apparently of a notoriety in the community such as would, as the jury might find, have enabled appellants, by diligence on their part, to have learned of the adverse claim and its active assertion. Where the grantee is, as here, a stranger to the title and enters into visible possession of all the property, although not recording his deed, and claims title thereto, acts of ownership and use may, according to the facts of the particular case, present a question for the jury's consideration of disseisin of the other cotenants wherever the acts of ownership and possession go to show inconsistency with the joint title. The general rule is stated in Long v. McCoy (Tex.Civ.App.) 294 S.W. 633; 2 Tex.Jur. §§ 56, 57, p. 106.
The second proposition is based upon a refusal to give special charges. It is thought the court did not err in refusing the charges. Acts which affirmatively show adverse possession, and are not otherwise so explained as to show a consistency with the joint title, will have the same effect as against cotenants as in other cases. And adverse possession was sufficiently explained in the main instruction of the court.
The third proposition is based upon the refusal to sustain the claim of Jewel Coleman that he was under 21 years old and that the bar of limitation was not complete against him. Jewel Coleman, a defendant in the suit, and claiming an interest in the land and a partition, pleaded, as against limitation, that he was a minor. His brothers and sisters were not examined as to his age, although they were witnesses testifying in the case. He, and no other witness, testified in support of his plea, as to his age, that he was "thirty-one years old on April 19, 1930." Minority and proof thereof legally constitute a complete ground of defense. That ground of defense was not submitted nor requested to be submitted to the jury. Under Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084, 1085, it was expressly laid down, viz.: "When the omitted issue constitutes a complete ground of recovery, or a complete defense, a failure to request a submission of that issue waives said ground of recovery or said ground of defense." Citing authorities. Therefore the ground of defense would have to be regarded as waived, unless the further contention of appellant should prevail. As appellant insists the evidence of Jewel Coleman being direct, positive, and unimpeached, and unopposed by other witnesses, his evidence could not be arbitrarily disregarded by either the court or the jury, and therefore there arose no issue of fact in respect to the particular issue for decision by the jury. Ordinarily a person may be regarded competent to testify as to his own age, although that sort of evidence is in the nature of hearsay. But sometimes his means of knowledge of the very month and year of birth may or may not be equal to that of other persons who might have been called as witnesses. And sometimes circumstances of self-interest or being a party to the suit may or may not discredit the testimony of the witness, although there is no affirmative evidence contradicting his statement. In this case if the statement of the witness that he was "thirty-one years old on April 19, 1930," be correct and taken in the case as conclusive proof, then the witness was not barred of his title to the land by the bar of ten years' limitation (Rev.St. 1925, art. 5510) lacking about nine months of completing the bar. The month and year of birth thus became very material particulars of proof. There is then presented the very pertinent inquiry of: Did the circumstance that Jewel Coleman was a party to the suit and had an actual, legal existing pecuniary interest in the question in litigation require submission to the jury for finding of the fact of minority or not? Parties to a suit who testify in their own cases, and who have an actual legal existing pecuniary interest in the issue in litigation, are in a different class as witnesses who have no actual legally existing pecuniary interest in the issues or in the litigation. Under the common law "the parties to the case" were arbitrarily excluded as witnesses, as wholly incompetent to testify, because of their interest "in the issue" of the litigation. 1 Greenleaf on Evidence, §§ 328-328e. The circumstance creating this disqualification was known as self-interest. The ground of being thus disqualified as a witness was because of "that supposed inclination to falsify which arose from the prospect of gaining or losing by the issue of the proceedings." Parties to the suit are now let in as witnesses in their own cases by statute. Article 3714 (Rev.St.). Although parties are made competent to testify and their testimony is admissible, yet the question of the credibility of their testimony, although uncontradicted, nevertheless becomes a matter for the consideration and determination of the court or jury because of the circumstance appearing of self-interest in the proceedings; and in making this inquiry the factual element of self-interest in the suit, or in the issue being tried, can be taken into consideration. The jury or the court under the well-settled rule in this state has the right to respond to the question of how far the factual element or circumstance of self-interest would impair or warp the credibility of a party to the suit who is a witness in his own case. Burleson v. Tinnin (Tex.Civ.App.) 100 S.W. 350; Rayner v. Posey (Tex.Civ.App.) 173 S.W. 246; Peerless Fire Ins. Co. v. Barcus (Tex.Civ.App.) 227 S.W. 368; Mills v. Mills (Tex.Com.App.) 228 S.W. 919; Texas N. O. R. Co. v. Gericke (Tex.Com.App.) 231 S.W. 745; Queen v. Turman (Tex.Civ.App.) 241 S.W. 786; Guaranty State Bank v. Roark (Tex.Civ.App.) 243 S.W. 591; First Nat. Bank v. Howard (Tex.Civ.App.) 174 S.W. 719; Keton v. Silbert (Tex.Civ.App.) 250 S.W. 316; Brannan v. Bank (Tex.Civ.App.) 211 S.W. 945; Dendinger v. Martin (Tex.Civ.App.) 221 S.W. 1095; Pope v. Beauchamp, 110 Tex. 271, 219 S.W. 447; Moore v. Moore (Tex.Civ.App.) 259 S.W. 322; Hartman v. Chumley (Tex.Civ.App.) 266 S.W. 444; Chicago, R. I. G. R. Co. v. Hammond (Tex.Civ.App.) 286 S.W. 483; 28 R.C.L. p. 471; 4 Jones on Evid. § 725; 40 Cyc. pp. 2652-2655.
There are some exceptions, as may be seen in the particular facts of cases, as to the parties in the suit to whom this general rule is made applicable. The mere fact alone of being a party is not always sufficient. But in this case the party was well within the general rule because of the fact that he was a party to the suit having an actual legal existing pecuniary interest in the issue and the litigation. 1 Greenleaf on Evid. p. 882, § 386; 4 Jones on Evid. § 726.
The judgment is affirmed.