Dryden v. Makey

FLY, C. J. This is an action of trespass to try title to several lots of land in the city of Houston, instituted by Thomas Dryden, who died pending the suit, and the same was then prosecuted by his widow, R. Fannie Dryden, and his two daughters, Luella Lemon and Mary E. Corbly, each joined by her husband, against J. H. Makey and his wife, Jeannette Makey, Stanley Thompson, and Mrs. S. R. Bruce and her husband, J. S. Bruce. It was alleged that after the suit was filed appellants had acquired the title of S. R. and J. S. Bruce and Thomas Ronald-son. Appellees alleged that after the suit was instituted they had acquired the interest of Stanley Thompson in the land, and also pleaded ten years’ limitation. Thompson filed a disclaimer. The cause was submitted to a jury on special issues, and upon the answers returned a judgment was rendered in favor of appellees J. H. Makey and Jeannette Makey. The jury found that Makey and wife did not, as pleaded by appellants, agree to repair or put a fence around the property, thereby recognizing the right of the Bruces to the land, and that Makey had been in peaceable adverse possession of the land in controversy for a period of ten consecutive years, using, cultivating, and enjoying the [303] same during the whole of that period. We are of the opinion that there was testimony which sustains the findings of the jury. J. H. Makey swore that Dr. Brúce came to his house and stated that he owed some land in the vicinity, but did not know exactly where it was, and asked him to keep the fences up, and that he (Bruce) would pay him (Makey) $5. Makey stated’ that he thought Bruce referred to a place adjoining his, known as the Newman place, and he repaired the fence between his and the Newman place and in front also. He denied that he recognized Bruce as his landlord, and swore that he had held the land as his own since 1882. Makey was sharply contradicted by two witnesses; but the jury accepted his account of the matter. He was sustained as to his adverse possession of the land by a number of witnesses. Jeannette Makey, his wife, corroborated his account of what Bruce said about the land. This view of the testimony disposes of the first, second, third, and fourth assignments of error, which question the sufficiency of the evidence to sustain the findings of the jury as to hostile possession of the premises. There was ample testimony which, if believed by the jury to be true, sustained the answers of the jury to the questions submitted by the court. A part of the testimony tended to show that the land was fenced, and other parts of it tended to show that only three sides were fenced in 1890 or 1891, and it was not calculated to mislead the jury for the court to instruct the jury that a failure to keep up the fences so as to exclude others from the land did not necessarily interrupt the running of the statute. The overwhelming evidence showed that the land was fenced in 1882, and was fenced for years, and, if one side was down in 1890 or 1891, the court might well have assumed that the fence had once been up on all sides of the land. . The only testimony that tends to contradict the statement that the land was fenced in 1882 was that of Chimene, who showed that he knew nothing about it. He said: “I didn’t pay any particular notice as to whether the property X had owned was fenced or not; but I don’t think it was.” He was there, he said, in 1883 or 1885. He was not able to identify the property of which he was speaking with that in controversy. It is not probable that the charge, if erroneous, in any way harmed appellants. The uncontradict-ed testimony showed that the land was cultivated, used, and enjoyed by appellees, to the exclusion of all others, for more than ten years, and this would meet the demands of the statute of ten years’ limitation, even though the land was not fenced. Dunn v. Taylor, 42 Tex. Civ. App. 241, 94 S. W. 347. The seventh assignment of error is without merit, and is overruled. The judgment is affirmed.