Grayson v. Dunn

581 S.W.2d 785, 1979 Tex. App. LEXIS 3611
Court of Appeals of Texas·Decided May 10, 1979·No. No. 5955·Published·Cited by 2 cases

Opinion

HALL, Justice.

This is a trespass to try title action over 27.62 acres of land located in the F. C. Booker Survey, in Leon County, Texas, and presently possessed by defendants. Plaintiffs claimed record title and also title by adverse possession. The suit was filed on October 3, 1972. Trial was to a jury in December, 1977. Judgment was rendered that plaintiffs take nothing. Plaintiffs appeal. We affirm the judgment.

Plaintiffs are the surviving heirs at law of Bill Grayson, deceased. They are James Grayson; O. G. Grayson; Beulah Mae Hall (whose husband is also joined as plaintiff); Frances Stell Thomas; and Bessie Grayson, the widow of Bill Grayson. Defendants originally were James I. Dunn, J. H. Buchanan, and R. L. Oden. Mr. Oden died before the case was tried, and Naelyn Oden Hinton and Jack Hinton, in their capacities as independent executors of Oden’s estate, were substituted in his place as defendants.

Plaintiffs and defendants claim record title to the tract in question. They stipulated that Haymon Haynes was their common source.1

Defendants’ chain of record title is: (1) Haymon Haynes to The Jewett State Bank, by general warranty deed dated August 6, 1929; (2) The Jewett State Bank, by and through its liquidating trustees, to defendant J. H. Buchanan, by special warranty deed dated September 15, 1952; (3) convey-, anee of an undivided one-half interest by J. H. Buchanan to defendant R. L. Oden, by special warranty deed dated December 1, 1952; and (4) conveyance of only the surface estate by Buchanan and Oden to de[787]*787fendant Dunn, by general warranty deed dated March 27, 1968.

Plaintiffs’ chain of record title is: (1) Haymon Haynes to R. B. Adams, by general warranty deed dated December 16, 1929; (2) R. B. Adams to Bill Grayson, by general warranty deed dated August 27, 1948; (3) the death of Bill Grayson on March 12, 1964. The record does not show whether Bill Grayson died testate or intestate, but it is not questioned in the record that, as between our parties, plaintiffs are entitled to the property if Mr. Grayson owned it at his death.

Plaintiffs pleaded that the purported deed dated August 6, 1929, from Haymon Haynes to The Jewett State Bank, upon which defendants’ title is based, was in fact intended as a mortgage, and that they therefore held superior record title. They also alleged that they and their predecessors had matured title to the land by adverse possession and use under the ten-year statute of limitation, prior to the time this suit was filed on October 3, 1972.

Defendants denied plaintiffs’ claims and alleged they were innocent purchasers for value without notice of any infirmity or defect in their title asserted by plaintiffs.

The jury made the following answers to the special issues:

1. Failed to find that the deed from Haymon Haynes to The Jewett State Bank, dated August 6, 1929, was intended as a mortgage.
2. Failed to find that “the plaintiffs and those under whom they hold and claim had and held peaceable, adverse and continuous possession of the 27.62 acres of land, . . . cultivating, using or enjoying the same, openly notoriously and adversely for any period of ten (10) consecutive years or more prior to the 3rd day of October, 1972.”
3. (This issue, conditioned upon an affirmative answer to issue 2, was not reached by the jury).
4. (A) and (B). Found that (A) when R. B. Adams purchased the tract from Haymon Haynes, and (B) when Bill Grayson purchased the land from R. B. Adams, neither Adams nor Gray-son at the time of his purchase had “actual or constructive notice of any equity, claim or title of Defendants or those under whom they claim.”
5.(A), (B) and (C). Found that (A) when defendant J. L. Buchanan purchased the tract from The Jewett State Bank, and (B) defendant R. L. Oden purchased from Buchanan, and (C) when defendant Dunn purchased from Buchanan and Oden, none of the defendants at the time of his purchase had “actual or constructive notice of any equity, claim or title of Plaintiffs or those under whom they claim.”

Defendants moved the court to disregard the jury’s answer to special issue 4 on the ground that it was immaterial in the light of the answers to issues 1 and 2, and to render judgment for them on the remainder of the verdict. The motion was granted, the answer to issue 4 was disregarded, and judgment was rendered on the remainder of the verdict that plaintiffs take nothing and that defendants recover title and possession to their respective interests in the land.

Plaintiffs assert that the evidence established their claim of ten years’ adverse possession as a matter of law, or, in any event, that the jury’s failure to find for them on that issue was against the great weight and preponderance of the evidence. We overrule those contentions.

Plaintiffs’ claim of adverse possession was based upon the testimony of plaintiff James Grayson. The essence of his testimony was this: Bill Grayson was my father. In May, 1949, when I was twenty, my father and I began fencing the land in question. Working evenings and weekends, we completed the fence in about three months. After we completed the fence to my father’s satisfaction, we “run a little few cows, what few we had,” on the land. “To the best of my knowledge” we had cows on this land each and every year after that “for a portion of the time.” Normally, it [788]*788would be about six or seven months of the year “at the most. I farmed a little bit on the Hinson place up until 1960. After I gathered the crop we would move these cows back there for the winter, so I would consider about seven months.” We kept the fences patched up “in fair condition.” When we removed the cows each year we didn’t give up possession to anyone else or intend to abandon the land. It was done with the intention to keep the land and use it in the future, as we did. When the cows were off the land we would attend to the fences which we kept up “in fair shape.” We also cut firewood off the place. After the 1960 season we didn’t carry the cows back. After my father died in 1964 none of us went back onto the land. I knew that the defendant James I. Dunn took possession of the land early in 1968 and constructed a fence around it and began to graze cattle on it. Although I saw him many times after that, I did not tell him “this is my land” or “don’t you fence my land” or “I want my land.”

It is the general rule that the testimony of a party or of any witness interested in the result of the case, even where uncontradicted, does not establish a fact as a matter of law because the credibility of the witness is still at issue for the faet-finder’s determination. Collora v. Navarro, (Tex.1978) 574 S.W.2d 65, 69. In Collora

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Grayson v. Dunn, 581 S.W.2d 785, 1979 Tex. App. LEXIS 3611 (Tex. Ct. App. 1979).

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