Michael A. Jenkins and Helen Marie Jones Van Dyke v. Nebraska Alexander Lucille Rogers Jeraline Thornton Hallie B. Ward Willie L. Roach Sam Clark Evelina Lipscomb Horace Nichols James Nichols Marie Jones And Bessie Lee Hill

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-95-00377-CV Michael A. Jenkins and Helen Marie Jones Van Dyke, Appellants v. Nebraska Alexander; Lucille Rogers; Jeraline Thornton; Hallie B. Ward; Willie L. Roach; Sam Clark; Evelina Lipscomb; Horace Nichols; James Nichols; Marie Jones; and Bessie Lee Hill, Appellees FROM THE DISTRICT COURT OF BASTROP COUNTY, 335TH JUDICIAL DISTRICT NO. 21,431, HONORABLE FRED A. MOORE, JUDGE PRESIDING PER CURIAM Appellants Michael A. Jenkins and Helen Marie Jones Van Dyke challenge the trial court's judgment declaring void a deed Van Dyke had executed to Jenkins, and quieting title to the property purportedly conveyed by the deed in favor of appellees Nebraska Alexander, Lucille Rogers, Jeraline Thornton, Hallie B. Ward, Willie L. Roach, Sam Clark, Evelina Lipscomb, Horace Nichols, James Nichols, Marie Jones, and Bessie Lee Hill. We will affirm in part and reverse in part the trial-court judgment. Facts Evalena Jones inherited 6.53 acres that were originally part of a fifty-two acre tract. Later in life, she lived with her husband, her step-daughter Van Dyke, and her grandson Jenkins. After her husband's death in 1983, she executed a power of attorney appointing Van Dyke her attorney-in-fact. Van Dyke, purporting to act under the power of attorney, executed a deed on August 6, 1987, that conveyed title to the 6.53-acre tract to Jenkins. Evalena Jones died on February 23, 1989. Appellees, claiming to be heirs of Evalena Jones, filed suit on October 4, 1994, seeking to declare the deed void and to quiet title in their favor. (1) Standard of Review Jenkins did not timely request findings of fact. In the absence of findings of fact, the judgment implies all necessary findings of fact to support it provided that the implied findings are raised by the pleadings and supported by the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). In considering whether the judgment and implied findings are supported by evidence, it is proper to consider only the evidence favorable to the judgment and to disregard all contrary evidence. Id.; Austin Area Teachers Fed. Credit Union v. First City Bank - Northwest Hills, N.A., 825 S.W.2d 795, 801 (Tex. App.--Austin 1992, writ denied). We will affirm the trial court's judgment if it can be upheld on any legal theory supported by evidence. Worford, 801 S.W.2d at 109; In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984). Analysis By point of error one, appellants complain that the trial court "erred by not construing the power of attorney as a matter of law." Appellants argue that the power granted to Van Dyke was a general power of attorney that gave her power to convey the property. The power of attorney read: I, Evalena Jones, County of Travis, State of Texas, do hereby designate and appoint my daughter, Helen Marie Jones VanDyke, (2) as soon and as reasonably convenient as possible authorize General Power of Attorney. I am the widow of Aaron Jones, Sr., who expired May 7, 1983, therefore directing all expenses incurred for her to dispense with and overseeing the property listed. Volume 257, Pgs. 207-2, 6.53 acres described in the deed recorded in Volume 75, Pages 130-132, also Volume 33, Pages 447-449 Deed Records, Bastrop County, Texas. . . . A special agent is one empowered to perform only a particular task or a particular class of work. Great Am. Casualty Co. v. Eichelberger, 37 S.W.2d 1050, 1052 (Tex. Civ. App.--Waco 1931, writ ref'd). A general agent is one "empowered to transact all the business of his principal of a particular kind or in a particular place." First Nat'l Bank in Dallas v. Kinabarew, 589 S.W.2d 137, 145 (Tex. Civ. App.--Tyler 1979, writ ref'd n.r.e.). A general agent is not necessarily one with unlimited powers but rather one with broad powers within a defined area. Id. Regardless whether Van Dyke was a general or a special agent, the trial court could have concluded that the power of attorney did not confer on her the power to convey the property. By statute, a conveyance must be in writing and subscribed and delivered by the conveyor or by the conveyor's agent authorized in writing. See Tex. Prop. Code Ann.§ 5.021 (West 1984). In this case, the scope of the power of attorney is far from clear. The construction of an ambiguous writing is a question of fact. Harris v. Rowe, 593 S.W.2d 303, 306 (Tex. 1979). The trial court could have concluded that Jones authorized Van Dyke to oversee the property listed. Jones's husband had just died; she was eighty-two years old and confused at times. It is reasonable to conclude that Jones executed the power of attorney to allow Van Dyke to help her pay bills and manage property. To "oversee" is to "superintend" or to "supervise." Webster's Third International Dictionary 1610 (Philip B. Gove, ed., 1986). A grant of authority to superintend is not equivalent to a grant of authority to convey. See Green v. Hugo, 17 S.W. 79 (Tex. 1891) (resolution authorizing agent to contract for sale of land did not authorize agent to convey land). (3) Further, the trial court could have decided that, even if the power of attorney could be read to authorize the sale of property to settle debts, Evalena Jones owed no debt to Jenkins. Jenkins testified that he had, over the years, made various improvements and repairs to the house in which Evalena Jones and her husband lived. However, the house was Jones's husband's separate property, and, on his death, passed to Van Dyke and her two brothers. Further, Jenkins and Van Dyke lived in the house, even after Evalena Jones went to a nursing home in 1984. Finally, there was no evidence that Jenkins performed the work with the expectation of pay. A deed executed for no consideration, when the power of attorney grants only a conveyance for consideration, is void. Montgomery v. Nevins, 270 S.W.2d 427, 431 (Tex. Civ. App.--Austin 1954, writ ref'd n.r.e.) (power of attorney authorizing agent power to sell property did not authorize agent to give away property); Rogers v. Tompkins, 87 S.W. 379, 384 (Tex. Civ. App.--San Antonio 1905, no writ) (power of attorney authorizing sale does not authorize conveyance for no consideration) ; see also Hunter v. Eastham, 67 S.W. 1080, 1081 (Tex. Civ. App.--Houston 1902), rev'd on other grounds, 69 S.W. 66 (Tex. 1902) (agent with authority to sell property must do so for consideration that accrues to principal). We overrule point of error one. By point of error two, appellants complain that the trial court erred in declaring the deed void because appellees did not present sufficient evidence "to establish their present right to possession." Appellees reply that they did not have to prove title since they sought only a cancellation of the deed purporting to convey the property to Jenkins and a declaratory judgment in their favor. Appellees are mistaken. Appellees brought their action as a suit for declaratory judgment under the Uniform Declaratory Judgment Act, seeking a declaration that the deed was void and that they were the owners of the property. See Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (West 1986). Such an action is not available to them because (1) they have no rights under the deed to adjudicate pursuant to section 37.004, and (2) a statutory trespass to try title action is the proper action by which to establish their right to the property. Section 37.004 provides that: A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder. Id. (emphasis added). Appellees may not request a declaration of their rights under the deed since they are not named in the deed. Further, Texas Property Code section 22.001 provides that a "trespass to try title action is the method of determining title to lands, tenements, or other real property." Tex. Prop. Code Ann. § 22.001 (West 1984). It is the exclusive remedy by which to resolve competing claims to property. See Barfield v. Holland, 844 S.W.2d 759, 771 (Tex. App.--Tyler 1992, writ denied) (trial court erred by awarding attorney's fees under declaratory judgment act when action was trespass to try title); Kennesaw Life & Accident Ins. Co. v. Goss, 694 S.W.2d 115, 117-118 (Tex. App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.) (declaratory judgment act inappropriate vehicle to establish rights in property because trespass to try title is only remedy); see also Yoast v. Yoast, 649 S.W.2d 289, 292 (Tex. 1983) (court of appeals should have characterized suit disputing ownership of property as trespass to try title rather than suit for partition). In a trespass to try title action, plaintiffs must prove their own title to the property involved. Baumgarten v. Frost, 186 S.W.2d 982, 987 (Tex. 1945); United Savings Ass'n of Tex. v. Villanueva, 878 S.W.2d 619 (Tex. App.--Corpus Christi 1994, no writ); Socony Mobil Oil Corp. v. Belveal, 430 S.W.2d 529 (Tex. Civ. App.--El Paso 1968, writ ref'd n.r.e.), cert. denied 396 U.S. 825 (1969). It is not enough to rely on the weakness of defendants' title. Villanueva, 878 S.W.2d at 622. Plaintiffs in this cause were Nebraska Alexander, Lucille Rogers, Jeraline Thornton, Hallie B. Ward, Willie L. Roach, Sam Clark, Evelina Lipscomb, Horace Nichols, James Nichols, Marie Jones, and Bessie Lee Hill. Nebraska Alexander's testimony established that Evalena Jones died leaving no spouse or children, and that she, Jeraline Thornton, Hallie B. Ward,Willie L. Roach, Sam Clark, and Evelina Lipscomb were Evalena Jones's heirs. However, no testimony was adduced regarding Evalena Jones's relationship with Lucille Rogers, Horace Nichols, James Nichols, Marie Jones, or Bessie Lee Hill. Therefore, it was improper for the trial court to render judgment quieting title to the property in favor of Lucille Rogers, Horace Nichols, James Nichols, Marie Jones, and Bessie Lee Hill. Point of error two is sustained. By point of error three, appellants challenge whether the suit was brought in the proper venue. Appellants waived their right to challenge venue by failing to file a motion to transfer. Appellants may not raise improper venue for the first time on appeal. See Gentry v. Tucker, 891 S.W.2d 766, 768 (Tex. App.--Texarkana 1995, no writ). We overrule point of error three. By point of error four, appellants complain that the trial court erred in failing to conclude that appellees' suit was barred by limitations. In their answer, appellants pled that Texas Civil Practice and Remedies Code sections 16.024 and 16.025 precluded the suit. Tex. Civ. Prac. & Rem. Code §§ 16.024-.025 (West 1986). Both sections 16.024 and 16.025 limit the time in which one can bring suit to recover real property held by one who is adversely possessing the property. Section 16.024 provides that a "person must bring suit to recover real property held by another in peaceable and adverse possession under title or color of title not later than three years after the day the cause of action accrues." "Color of title" means a consecutive chain of transfers to the person in possession that "is not regular because of a muniment that is not properly recorded or is only in writing or because of a similar defect that does not want of intrinsic fairness or honesty." Id., § 16.021(2) (West 1986). A purported conveyance by one without authority to convey is void. Slaughter v. Qualls, 162 S.W.2d 671, 675 (Tex. 1942) (deed obtained from trustee who sold property without authority to do so is void); Stark v. Stefka, 491 S.W.2d 757, 759 (Tex. Civ. App.--Austin 1973, no writ) (sheriff's deed void unless executed with authority). A void deed does not confer color of title sufficient to invoke the protection of the three-year statute of limitations. Green, 17 S.W. at 80; Field Measurement Service, Inc. v. Ives, 609 S.W.2d 615, 620 (Tex. App.--Corpus Christi 1980, writ ref'd n.r.e.) (void deed is not "color of title" for purposes of three-year statute of limitations); Watson v. Watson, 55 S.W. 183, 183 (Tex. Civ. App. 1900, no writ) (deed of homestead executed solely by husband does not constitute color of title). We hold that the deed Van Dyke executed to Jenkins does not constitute "color of title" such that Jenkins may invoke the three-year statute of limitations. Section 16.025 provides that: (a) A person must bring suit not later than five years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who: (1) cultivates, uses, or enjoys the property; (2) pays applicable taxes on the property; and (3) claims the property under a duly registered deed. (b) This section does not apply to a claim based on a forged deed or a deed executed under a forged power of attorney. A plaintiff claiming the benefit of the five-year statute of limitations must pay taxes due on the property before they are delinquent. Baker v. Fogle, 217 S.W. 141, 143 (Tex. 1919), modified by 219 S.W.2d 450 (Tex. 1920) (timely payment required to show good faith and give notice to true owner); Radford v. Garza, 586 S.W.2d 656, 660 (Tex. Civ. App.--Corpus Christi 1979, no writ) (must pay taxes before delinquent); Keels v. Keels, 427 S.W.2d 913, 917 (Tex. Civ. App.--Tyler 1968, no writ) (failure to pay fifth year's taxes before they were delinquent prevented appellees from establishing title by five-year limitations period). Jenkins paid 1990 and 1991 taxes to Bastrop Independent School District in 1993. He paid 1992 and 1993 taxes the week before the March 10, 1995 trial date, and 1994 taxes on the day of trial. Under Baker v. Fogle, he is not entitled to claim ownership under the five-year statute of limitations. (4) Moreover, Jenkins' use of the property was not sufficient to invoke the protection of the five-year statute of limitations. To adversely possess land, a trespasser must take exclusive possession sufficiently adverse to put the owner on notice of the trespass claim. Sun Operating Ltd. Partnership v. Oatman, 911 S.W.2d 749, 757 (Tex. App.--San Antonio 1995, writ denied). Jenkins did not enclose the property; it was never separated by fence from the rest of the fifty-two acre tract belonging to Evalena Jones's siblings. He never lived on it, ran cattle on it, or farmed or cultivated it. We overrule point of error four. We affirm the trial court's determination that the deed purporting to convey the property to Jenkins is void and that Jenkins may not claim title on the basis of the statute of limitations. However, we reverse the portion of the trial court's judgment quieting title in appellees. And, in the interest of justice, we remand that portion of the cause to the trial court to hear evidence and determine the persons taking the property through Evalena Jones. United States Fire Ins. Co. v. Carter, 473 S.W.2d 2, 3 (Tex. 1971); ICM Mortgage Corp. v. Jacob, 902 S.W.2d 527 (Tex. App.--El Paso 1994, writ denied) (remand especially appropriate when party proceeded under wrong legal theory); Stark, 491 S.W.2d at 759 (remand to allow plaintiff in trespass to try title action to prove title in himself). Before Justices Powers, Aboussie and Jones Affirmed in Part; Reversed and Remanded in Part Filed: May 1, 1997 Do Not Publish 1. Appellants filed documents in a supplemental transcript indicating there was an earlier judicial proceeding regarding ownership of the disputed acreage. However, we may not consider the documents because they were not introduced into evidence in the trial court. Victory v. State, 158 S.W.2d 760, 763 (Tex. 1942). 2. Evalena Jones referred to Helen Marie Jones Van Dyke, who was her step-daughter, as her daughter. 3. Kinabarew, upon which appellants rely, is not on point. The issue in Kinabarew was whether a power of attorney that clearly gave the power to convey included the power to convey to settle a debt. 4. For purposes of the five-year limitations period, we need not consider that he moved a house onto the property in September 1991, because appellees filed suit on October 4, 1994, only three years later. Section 16.025 provides that: (a) A person must bring suit not later than five years after the day the cause of action accrues to recover real property held in peaceable and adverse possession by another who: (1) cultivates, uses, or enjoys the property; (2) pays applicable taxes on the property; and (3) claims the property under a duly registered deed. (b) This section does not apply to a claim based on a forged deed or a deed executed under a forged power of attorney. A plaintiff claiming the benefit of the five-year statute of limitations must pay taxes due on the property before they are delinquent. Baker v. Fogle, 217 S.W. 141, 143 (Tex. 1919), modified by 219 S.W.2d 450 (Tex. 1920) (timely payment required to show good faith and give notice to true owner); Radford v. Garza, 586 S.W.2d 656, 660 (Tex. Civ. App.--Corpus Christi 1979, no writ) (must pay taxes before delinquent); Keels v. Keels, 427 S.W.2d 913, 917 (Tex. Civ. App.--Tyler 1968, no writ) (failure to pay fifth year's taxes before they were delinquent prevented appellees from establishing title by five-year limitations period). Jenkins paid 1990 and 1991 taxes to Bastrop Independent School District in 1993. He paid 1992 and 1993 taxes the week before the March 10, 1995 trial date, and 1994 taxes on the day of trial. Under Baker v. Fogle, he is not entitled to claim ownership under the five-year statute of limitations. (4) Moreover, Jenkins' use of the property was not sufficient to invoke the protection of the five-year statute of limitations. To adversely possess land, a trespasser must take exclusive possession sufficiently adverse to put the owner on notice of the trespass claim. Sun Operating Ltd. Partnership v. Oatman, 911 S.W.2d 749, 757 (Tex. App.--San Antonio 1995, writ denied). Jenkins did not enclose the property; it was never separated by fence from the rest of the fifty-two acre tract belonging to Evalena Jones's siblings. He never lived on it, ran cattle on it, or farmed or cultivated it. We overrule point of error four. We affirm the trial court's determination that the deed purporting to convey the property to Jenkins is void and that Jenkins may not claim title on the basis of the statute of limitations. However, we reverse the portion of the trial court's judgment quieting title in appellees. And, in the interest of justice, we remand that portion of the cause to the trial court to hear evidence and determine the persons taking the property through Evalena Jones. United States Fire Ins. Co. v. Carter, 473 S.W.2d 2, 3 (Tex. 1971); ICM Mortgage Corp. v. Jacob, 902 S.W.2d 527 (Tex. App.--El Paso 1994, writ denied) (remand especially appropriate when party proceeded under wrong l