Woodley v. Becknell

HODGES, J. This suit originated in a dispute over the location of a boundary line. The John Findley survey, of which the land involved is a part, was patented to John Findley in 1845. The appellant owns land on the north, and the appellee owns land on. the south, of the disputed line; both tracts being in the Findley survey. The land in controversy covers about 20 acres. In 1917 the appellee filed this suit in the form of an action of trespass to try title. The appellant answered by a plea of not guilty, and further pleaded a title by adverse possession extending over a period of 10 years. The case was tried without a jury, and the court found that the true boundary line was at the place claimed by the appellee. He further found that the appellant bought his tract of land and went into possession in 1890, and soon thereafter received a deed from his grantor; that he cleared and inclosed with a fence about 1½ acres of the land in controversy, and had continuously used and occupied the land so inclosed for more than 10 years before the institution of this suit, believing that the entire 20 acres was within the calls of his deed, and that the line claimed by him was the true boundary between his land and that owned by the appellee; that he also during that time had cut timber from the land lying outside of his inclosure. From these facts he deduced the following conclusions of law: That the appellant had established title to the 1½ acres by limitation; that his title by limitation extended no further, for the following reasons: “(a) That there could be only one constructive possession of the land in controversy at one and the same time, and that Becknell claiming by deed to the true boundary line, which includes the land in controversy, would destroy Woodley’s claim to an erroneous boundary line, and would prevail over Woodley’s claim. “(b) That Woodley’s claim to the land in controversy, being made upon the mistaken belief that the south boundary line, as claimed by him, was the true boundary line, did not give him any constructive possession to the land in controversy.” Upon those findings and conclusions the court rendered a judgment in favor of the appellee for all of the land’ in controversy, except the 1½ acres. The appellant contends that judgment should have been rendered in his favor for the entire amount, for two reasons: (1) Because the plaintiff failed to connect himself with Findley, the original patentee; and (2) because under the facts proven upon the trial the appellant was entitled to judgment for all of the land in dispute under his plea of adverse possession. The appellee proved a paper title to the land in dispute back to Robert O. Lusk, who conveyed to Wm. Aker on April 20, 1846. For the purpose of connecting Liisk with Findley, the patentee, ap-pellee offered in evidence the pleadings and judgment in a suit filed by E. L. Stratton, appellee’s grantor, in 1913, against the unknown heirs of John Findley and Joseph Rowe. That was a suit to remove cloud from [933] title. In the original petition filed therein it was alleged that Findley had conveyed to Howe, and that Rowe had conveyed to Lusk. The judgment rendered in that suit was for the plaintiff, granting the relief prayed for. That judgment was sufficient to establish, prima facie, a title connecting appellee with Findley, the patentee. The appellant offered in evidence an original petition filed, and a judgment rendered, in a suit by the children of John Findley in 1876 against H. A. Woodley, under whom appellant claims. The petition in that case shows that the plaintiffs therein were claiming title to the Findley survey by inheritance from their father. The judgment rendered was merely that they take nothing by their suit. The appellant contends that the legal effect of that judgment was to divest the heirs of John Findley of all title they had in the Findley tract of land in 1876, and that Stratton’s suit against them as unknown heirs in 1913 was of no value in establishing the missing link in ap-pellee’s paper title. The purpose of the suit filed by Stratton against the unknown heirs of Findley and Rowe was, not to secure a judicial transfer of title from those heirs, but to judicially determine and declare that their apparent title was in fact no title. Howard v. Davis, 6 Tex. 174; Sharon v. Tucker, 144 U. S. 533, 12 Sup. Ct. 720, 36 L. Ed. 532; 1 Pomeroy, Eg. Jur. § 171. If the facts alleged by Strat-ton in his original petition were true, Find-ley during his lifetime had conveyed the land to Rowe, and Rowe had conveyed it to Lusk. The judgment rendered in that suit is founded upon the assumption that those facts were established upon the trial, and no effort was made in the trial of this case to show to the contrary. It may be conceded that the appellant was not bound by that judgment, not being a party to the suit, and was therefore at liberty to reopen and contest those issues of fact; but that was not done. The legal effect of the judgment against the heirs of Findley in 1876 was merely to determine that they then had no title. That judgment might be sustained upon proof of the very facts alleged by Stratton in his suit — that is, that the ancestor of those heirs had during his lifetime conveyed the property to other parties. [1] The second proposition presents a different question. The court finds that appellant had been in the actual possession of the 1½ acres of the disputed land for more than 10 years prior to this suit, and that he had been claiming the entire tract as being within the calls of his deed. The evidence shows that during that time he had cut timber from that part of the land lying outside of his ip-closure. The fact that his claim was founded upon the belief that the land was within the description contained in his deed, or that he was mistaken as to the boundary of his own land, was not sufficient to defeat the legal consequences of an adverse possession for the statutory period. Porter v. Miller, 76 Tex. 593, 13 S. W. 555, 14 S. W. 334; Id., 84 Tex. 204, 19 S. W. 467. The statute provides that adverse possession of a part of a tract of land may embrace as much as 160 acres. Article 5676, Rev. Oiv. Statutes. As supporting the ruling of the court, the appellee refers to the following cases: Bracken v. Jones, 63 Tex. 184; Holland v. Nance, 102 Tex. 177, 114 S. W. 346; Smith v. Jones, 103 Tex. 632, 132 S. W. 469, 31 L. R. A. (N. S.) 153; and others of similar import. Those- cases hold that a mere encroachment upon the land of another under a mistake as to the location of the true boundary line is not alone .sufficient to give notice to the owner of an adverse claim extending beyond the limits of the actual inclosure. In this case the proof shows that the adverse claim was to the entire tract in dispute, that it originated at the time the appellant took possession, and that a tenant house had been erected on the 1½ acres. The case of Porter v. Miller, supra, is, we think, more in point upon this proposition. See, also, Fielder v. Houston Oil Co. (Com. App.) 208 S. W. 158. The rule which gives priority to the constructive possession of the true owner applies only when the true owner is in actual possession of some part of the tract to which the land in dispute belongs. The record here shows that the owner was not in possession of any part of this land till after the period of limitation had been completed. We are of opinion that the court erred in his conclusions of law, in holding that the appellee’s constructive possession was superi- or to that arising from an actual possession of the appellant of a pa.rt of the disputed land. Whether the adverse claim of the appellant was of sufficient notoriety to support his plea of limitation is another question, and is one which was not passed upon by the trial court. The' judgment, we infer from the conclusions of law filed, was based upon a different proposition. We feel, therefore, that the case should be reversed, and the cause remanded, for the purpose of having that issue of fact determined in another trial; and it is so ordered. Footnotes [1] <§=>For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes