Carr v. Alexander

KEY, C. J. On May 17, 1910, A. Alexander instituted this suit against Sarah Carr and her husband, T. M. Carr, for the recovery of 183% acres of land out of a 400-acre tract ■off of the north end of the Jefferson West .survey, situated in Williamson county, and for a decree removing cloud and quieting title. Among other matters the plaintiff pleaded title by limitation. The defendants’ answer contained a general demurrer, general •denial, plea of not guilty and plea of non est factum as to a certain deed, and a special plea alleging that the 400 acres of land referred to in the plaintiff’s petition was owned jointly and as cotenants by the defendant Sarah Carr and Elizabeth Arledge, and that the plaintiff was claiming title under the latter; and the defendants made Elizabeth Arledge, H. F. Ryals, and C. H. Windemeyer parties, and set up a cross-action against them and the plaintiff, whereby they sought to have Mrs. Carr’s right to recover an undivided half of the 400 acres established and to have a partition. The defendants Ryals and Windemeyer filed answers, in which the former claimed title to 150 acres and the latter to 50 acres, each specially pleading their title under the five and ten year statutes of limitation. The Carrs filed a supplemental answer in reply to the plaintiff’s plea of title by limitation, setting up the coverture of Sarah Carr, tenancy in common, and negativing any dis-seisin or ouster. Upon the several issues thus presented the case was submitted to the trial court without a jury, and judgment rendered for the plaintiff Alexander for the 183% acres of land sued for by him, and for the defendants Ryals and Windemeyer, respectively, for the lands claimed by them, and that Elizabeth Arledge go hence and recover costs, and that the Carrs take nothing and pay all costs, and the latter have prosecuted this appeal. The trial judge filed the following findings of fact and conclusions of law, which are supported by the testimony and adopted by this court: “Findings of Fact. “(1) I find that the 400 acres of land out of the Jefferson West survey in Williamson county, Tex., described in defendant Carr’s cross-action, and which includes the 183% acres sued for by the plaintiff Alexander, was conveyed by Jefferson West to John Barclay as administrator of the heirs of Mat-thais Prewitt, on December 6, 1852. “(2) I find that the said Matthias Prewitt died prior to the year 1852, leaving surviving him his wife, Mrs. Eliza Prewitt, and two daughters, Jane (who married John Barclay) and Elizabeth (who married M. D. Ar-ledge); that John Barclay, the husband of the said Jane Barclay, died in October, 1856, and the said Jane Barclay died in the year 1881, .leaving her two children, to wit, one daughter, the defendant Mrs. Sarah Carr, and one son, Mack Barclay; that the son died in 1907, without having been married and leaving no issue; that the defendant Mrs. Sarah Carr was married to Thomas Carr in the year 1867, and before the death of her mother Mrs. John Barclay; that the said M. D. Arledge died on the - day of July, 1910. “(3) I find that on the 7th day of March, 1855, the said John Barclay and wife, Jane Barclay, executed a deed to Moses D. Arledge, purporting to convey to said Ar-ledge a portion of said 400 acres of land, and that on October 30, 1868, Eliza Mays, formerly Eliza Prewitt, executed a deed to Elizabeth Arledge, purporting to convey an interest in said 400 acres of land; said two deeds being of the terms and tenor as shown by the statement of facts. The said two deeds were not acknowledged and were never recorded. “(4) I find that some time, about the year 1866, the said M. D. Arledge and his wife, Elizabeth Arledge, moved upon said 400-acre tract of land and made some improvements thereon and placed a portion of same in cultivation, and resided upon and occupied said land continuously from said date down to the present time, with the exception of the following intervals, to wit: On one occasion, shortly after moving upon said place, the said Arledge and wife removed to the Hamilton place on account of the health of the family and there resided about one year; on another occasion during their early occupancy of said 400 acres they moved to a place near Beaukiss for a portion of a year for the purpose of sending their children to school, leaving said 400 acres in the possession of one of their sons; and that about three years before the institution of this suit, said Arledge and his wife, being old and feeble, lived for one year with or near a daughter, leaving the land in controversy in the possession of tenants. “(5) I find that, from the date of the execution of the deeds by Mrs. Mays and Mrs. Barclay to them, the said Arledge and his wife believed that they held and owned the title to said entire 400 acres of land; that they openly claimed the entire 400 acres as their own, and never at any time admitted the existence of any interest or title of any character in any other person; that said land was commonly known in the community as belonging to said Arledges; that the Arledges on several occasions attempted to sell the same and offered same for sale; [220] that they had the exclusive occupancy, use, and control of same, collecting and using all of the rents and revenues thereof, and paying all taxes due on same. “(0) X find: That on November 22, 1877, said M. D. Arledge and wife, Elizabeth Ar-ledge, conveyed to W. A. Arledge 50 acres out of the northeast corner of said 400-acre tract, by metes and bounds; the deed conveying same being placed of record. That the said W. A. Arledge entered into possession of same, placed a portion of said land in cultivation, and erected improvements thereon. That he and his vendees have continuously claimed and occupied the same from the date of said deed down to this time. That some of the later conveyances of said 50 acres contain the recitation that said tract contained 54 acres. That on said November 22, 1877, the said M. D. Arledge and Elizabeth Arledge conveyed to Mary Ann Brymer, by metes and bounds, 50 acres out of the northwest corner of said 400-acre tract; said deed of conveyance being placed of record. That the said Mary Ann Brymer entered into possession of same, placed a portion of said land in cultivation, and erected improvements thereon, and that she and her vendees have continuously claimed and occupied the same from the date of said deed 'down to this time. That on November 29, 1879, the said M. D. Arledge and Elizabeth Arledge conveyed to -- McGinnis, by metes and bounds, 100 acres off of the south end of said 400-acre tract; the deed conveying same being placed of record. That the said - McGinnis entered into possession of the same, placed a portion of said land in cultivation, and erected improvements thereon, and that he and his vendees have continuously claimed and occupied the same from the date of said deed down to this time. “(7) I find that after executing the above conveyance, which conveyed at least one-half of said 400-acre tract, the said M. D. Arledge and Elizabeth Arledge continued to reside upon and occupy the remaining portion of said 400-acre tract, using, cultivating, and enjoying the rents and revenues thereof, and claim title to same. “(8) I find that a portion of said land was improved and fenced at the time the said M. D. Arledge and Elizabeth Arledge first occupied the same, and that other improvements were afterwards made, but that said tract of land was not entirely fenced until the year 1892 or 1893, at which latter date all of said land was fenced and the said tract of 183% acres sued for by plaintiff! was on said date fenced off to itself and completely inclosed, and that from said date down to the institution of this suit the said M. D. Ar-ledge and his said wife, Elizabeth Arledge, continued to occupy all of said 400 acres of land that had not theretofore been sold, holding the peaceable, adverse, and exclusive possession thereof, cultivating, using, and enjoying the same and claiming title to same. “(9) I find that since the year 1868 the said John Barclay, nor his wife Jane Barclay, nor Mrs. Eliza (afterwards Eliza Mays), nor the defendants Thomas Carr and Sarah Carr, have ever asserted any right, title, claim, or interest in or to said tract of 400-acres of land until the latter part of the year 1909, at which time the defendants Carr were requested to sign a deed conveying their apparent interest in said land to the Arledges, whereupon they asserted title to an interest in same and refused to sign said deed. “Conclusions of Law. “I conclude that the character of use, possession, and claim of title of the said M. D. Arledge and Elizabeth Arledge, and the circumstances surrounding same, as shown by the findings of fact for the long period set out therein, together with the sale of at least one-half of said tract of land by metes and bounds, and the record of the deeds whereby said one-half was sold, and the continued exclusive occupation by the Arledges of the remaining one-half of said land, constitute notice to the defendant Carr of the Arledges’ adverse claim of title, and that all the right, title, and interest of the said defendants in and to said tract of land was barred by the 10-year statute of limitation before the institution of this suit, and that therefore the plaintiff is entitled to recover as prayed for in his petition, and that the defendants Carr shall take nothing by their cross-action. “C. A. Wilcox, 'District Judge.” Opinion. [1] Appellants’ first assignment of error is addressed to the action of the trial court in overruling their general demurrer to the plaintiffs’ petition. Undoubtedly, the petition asserted a good cause of action, based upon title under the 10-year statute of limitation, and therefore no error was committed in overruling the general demurrer. Honea v. Arledge, 56 Tex. Civ. App. 296, 120 S. W. 508. [2] Under appellants’ second and third assignments, it is contended that the trial court should have sustained objections and excluded the deeds referred to in the third finding of fact, because it was shown that the grantors, Jane Barclay and Eliza Mays, were married women at the time they signed the deeds, and those instruments were not acknowledged, as required by law in order to render them effective as deeds. The record shows that the trial court did not admit them as muniments of title, but as circumstances or evidence shedding some light upon the nature of the possession held by Moses D. Arledge and his wife for a long period of time stated in the fourth finding, and we hold that that ruling was correct. [221] [3] And the same may be said in reference to the fourth assignment, which complains of the admission in evidence of a bond for title, executed in 1841 by Matthias Prewitt to one A. G. Parker. If it be true that the instrument referred to could have but little, if any, bearing upon any question in the case; still, considering .all the other testimony and the sole issue upon which the case was decided, we do not think the case should be reversed simply because of the admission of that immaterial document. It is not probable that its exclusion would have resulted in any other disposition of the case, and therefore we decline to reverse on account of its admission, even conceding that it was immaterial. [4] Under the fifth assignment, appellants contend that error was committed by the admission in evidence of deeds showing that M. D. Arledge and his wife had conveyed to W. A. Arledge 50 acres out of the north-cast corner of the 400-acre tract in 1877, and 50 acres to Mary Brymer out of the northwest corner in 1887, and 100 acres off of the south end of the 400-acre tract to O. I-I. P. and J. J. McGinnis in 1879. The deeds referred to, as well as others conveying some of the same lands to other parties, and the registration of those deeds, were circumstances imoper to be considered in determining the nature of the possession held by M. D. Ar-ledge and his wife. In other words, appellants are contending that the possession of the entire 400-acre tract by Arledge and his wife, who owned a half interest, did not constitute disseisin or ouster of Mrs. Carr, who owned the other undivided one-half of the land, and was therefore a cotenant. Conceding the fact of such cotenancy, proof that the Arledges undertook to convey to others at least half of the entire tract and continued to occupy and use the remainder were circumstances tending to show that their possession was intended to be adverse against every one, including their cotenant Mrs. Carr. [5] The other assignments present questions similar to the one just considered, and under them it is strenuously contended'that the testimony fails to meet the requirements as to ouster of a cotenant, and therefore does not support the conclusion that Mrs. Carr’s right was barred by the statute of limitation. [6] We think the testimony supports the trial court’s findings of fact in that respect; and we hold that, in order to constitute disseisin or ouster of a cotenant, it is not necessary that actual knowledge of the fact that possession is intended to be adverse to such cotenant must be brought home to him. Possession and assertion of exclusive ownership may be so notorious and long continued as to constitute notice to a cotenant of adverse possession. Alexander v. Kennedy, 19 Tex. 492, 70 Am. Dec. 358; Humph-reys v. Edwards, 89 Tex. 512, 36 S. W. 335, 434; 38 Cyc. p. 37. The adverse possession, use, and assertion of exclusive right may' be so notorious as to constitute notice, even to a nonresident cotenant. Honea v. Arledge, supra; Oil Co. v. Burnham, 124 S. W. 225. In the ease at bar there is nothing to indicate that, when M. D. Arledge and his wife took possession of the land 40 years ago, they did so as cotenants and recognizing any right in appellants. On the contrary, the proof indicates that from that time on until the remaining 183% acres of it were sold to the plaintiff in 1909, the possession of the Arledges was adverse to everybody, including the appellants. They used it as their own; they offered to sell the entire tract; they sold to others all except 183% acres now in controversy more than 10 years before the commencement of this litigation. The undisputed proof shows that the last time the Garrs were upon the land in controversy was when they visited M. D. Ar-ledge and his wife in 1887; and, if the trial court accepted the testimony of Mrs. Arledge as true, neither of them on that occasion asserted any claim to the Arledges to any interest in a portion of the land. Nor was it shown that on any other occasion they ever controverted the exclusive right asserted by the Arledges to the entire 400 acres. It was not shown that the Carrs ever paid any taxes on the land nor was it shown that they ever took such steps, as might reasonably be expected, to maintain and protect their interest as cotenants, and they admitted in open court that Windemeyer and Ryals, who held under the Arledges, had title by limitation. Therefore, after carefully considering the testimony, we have reached the conclusion that the learned trial judge was correct in holding that the plaintiff Alexander, who had acquired the Arledge title, had established his plea of title under the ten years statute of limitation, and was entitled to the judgment rendered in his favor, which judgment is affirmed. Affirmed.