HomeMy WebLinkAbout1974.11.13 - Crisp vs. Parker Civil Court of AppealsIN THE COURT OF CIVIL APPEALS, THIRD SUPREME JUDICIAL DISTRICT
OF TEXAS, AT AUSTIN
NO 12,176
CLARA CRISP, ET AL.,
vs.
WILLIE PARKER, ET AL., r
APPELLANTS
APPELLEES
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
NOS. 14,287-A AND 14,287, HONORABLE KIRBY VANCE, JUDGE
This appeal concerns an effort by co -tenants, appellants
Clara Crisp and Willie Jefferson, to establish title by limitation
to land as against other co -tenants The district court of Wil-
liamson County entered a judgment contrary to appellants' claim
of limitation title. We will affirm that judgment.
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The Urban Renewal Agency of the City of Georgetown
filed a petition in the district court to condemn the land in
controversy, a lot located in west Georgetown, for the purpose
of clearing that lot for "redevelopment and re -use" by that Agency.
In that suit, two of the defendants, appellants here, filed a
cross -action against the balance of the defendants, appellees here,
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all being relatives of either Vira Maxwell or Lucinda Smith.
1/ Willie Parker, Sam Parker, Albert Parker, Rubenia Parker
Smith, Honley Jefferson, Susie Jefferson Hunt, Bessie
Jefferson Williams, Lillian Satterfield, Mellownie Johnson,
Henry Jefferson, Jennie Daniels, Wofford Jefferson, Jr.,
John L. Jefferson and Willie Jefferson.
By their cross -action appellants claimed that they were entitled
to all proceeds to be awarded in the condemnation proceeding.
This was so, appellanta avowed, because they owned an undivided
one-fourth interest in the lot and had acquired title to the
balance of those interests as against appellees, their co -tenants,
by authority of the three, ten, and twenty-five year statutes
of limitation. Tex. Rev. Civ. Stat. Ann. arts. 5507, 5510, and
5519:
The cross -action, including the claims of the respective
parties to the damages to be awarded in the condemnation proceed-
ing, was severed from the original condemnation suit. Judgment
was entered in the original suit condemning the lot and requiring
the Urban Renewal Agency to pay the sum of $6,000.00 into the
registry of the court. Upon trial to the court, judgment was
entered in the severed'suit, contrary to appellants' claim of
title by limitation.
By two points of error appellants contend that the court
erred in finding that the law and facts were contrary to their
claim of title by virtue of the ten and twenty-five year statutes
of limitation. These points will be overruled.
The lot in controversy was deeded in 1930 by Archie
Parker and wife to Lucinda Shanks for life with remainder to
Vira Maxwell and Lucinda Smith. After that time Lucinda Shanks
lived in the old house situated on that lot. During the lifetime
of Lucinda Shanks, appellant, Clara Crisp, and her husband, Willie
(Sanko) Crisp, moved into this house with Lucinda. Sanko was the
son of the remainderman, Lucinda Smith. Lucinda Shanks died in
1932, and after her death Clara and Sanko remained in the house
where they reared ten children.
Vira Maxwell lived in Georgetown only a short distance
from Clara and Sanko. Sanko's mother, Lucinda Smith, did.,not live
in Williamson County. Some of the witnesses testified that Vira
permitted Clara and Sanko to continue living in the house because
she was fond of her relative, Sanko, and that, after all, he and
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his large family needed a place "to stay " Witness Willie Parker
testified that Sanko was allowed to remain in the house not only
because he had no house but also because Sanko ". . . wouldn't
get out to try to get no house to put his family in." Though
Sanko had died, Clara was still living in the house at the time
the Urban Renewal Agency began the proceedings to condemn the
lot.
Vira died in 1965. Lucinda Smith died some time
before 1968. Through the years and before those deaths,
Clara and Sanko placed some improvements on the lot. The house
previously had "a half a front fence," and Clara and Sanko "added
the other half to it." They also added two rooms to the "big"
house. In the 1930's they built an additional two -room house on
a corner of the lot, where their daughter, appellant Willie
Jefferson, lived. Some improvements were made to that house in
1948. In 1959 or 1960, a small garage was built on the lot.
The testimony was conflicting as to whether Sanko or his half-
brother, George Parker, built the garage.
The property was rendered in the name of the Lucinda
Shanks Estate until late in the 1960's when the property was
rendered in the name of Willie Crisp. Clara testified that
Sanko paid the county, city, and school taxes before his death
and that afterward she "taken to paying them." She said that she
would fall behind in the payment of the taxes but then she ". .
would pay more, you see, catching them up." An inspection of the
tax records made exhibits in the statement of facts shows that
the school taxes were not paid from 1956 to 1972, and that the
city taxes were not paid from 1948 to 1972 with the exception of
the years 1955, 1967, 1968, 1969, and 1970.
Clara testified that neither she nor Sanko, to her
knowledge, had told Vira Maxwell or Lucinda Smith that they were
claiming the property. In fact, on cross-examination Clara
stated that she was not claiming the property against Vira
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Mattie Gaines who had lived in Georgetown for eighty-nine years
and who was well acquainted in west Georgetown, testified that
she had never heard from anyone that Sanko or Clara were claim-
ing the property.
The disposition of appellants' first two points of error
is controlled by the application of the principles stated in
Todd v. Bruner, 365 S.W.2d 155 (Tex. 1963), to the facts in tb4-
appeal. Justice Norvell wrote in that opinion:
"For respondent's case to stand, notice of repudi-
ation must have been brought home to petitioners or
their predecessors in title prior to December 1,
1943 ,
"Insofar as the true owner of property is con-
cerned, there is a vast difference between the
notice of adverse claim conveyed by the presence
of a stranger in possession and that of a cotenant
in possession. It is not unusual for one cotenant
to have exclusive possession and make beneficial
use of lands for rather long periods of time and
.ordinarily such use is with the acquiescence of the
other cotenants. Cotenancy is a common form of
land tenure when owners belong to the same family.
This results largely by the operation of the stat-
ute of descent and distribution and commonly fol-
lowed customs and practices relating to the making
of devises of lands, The legal presumption follows
a generally recognized habit or practice based upon
years of observed experience. The statutes of limi-
tation are statutes of repose. They are intended
to settle and support land titles and are not de-
signed to afford a method whereby one member of a
family may appropriate property belonging to his
kinsman. Hence the legal requirement that notice
of repudiation of the common title should be clear,
unequivocal and unmistakable. . . . Cotenancy -
limitation situations often present the somewhat
anomalous argument in which one cotenant in effect
says, 'Although I lived within a few miles of my
cotenant, I never told him of my repudiation of
our common title, but my actions with reference
to the land itself were so unequivocal and noto-
rious that he must have known of the repudiation
that I never disclosed to him.' The real prop-
erty statutes of limitations as to cotenants are
not designed to run in secrecy and silence . . .
"Any cotenant has a right to be in the posses-
sion of property in which he owns an interest,
hence if.the acts of the respondents and their
predecessors in title are susceptible of expla-
nation consistent with the existence of the
common title then such acts cannot be such as
to give constructive notice to the cotenants
out of possession. . .
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donc9 x%9464 _I'!SR11,195$
"Possession, coupled with payment of taxes,
is not notice to a cotenant of a repudiation of
the common title.' .
Moreover, whether or not the possession by appellants
amounted to adverse possession as to appellees or their prede-
cessors in title.is a question of fact. The court found contrary
to appellants on their claim of adverse possession and title.by
limitation,' and,such finding is supported by the evidence.
By their points of error three and four appellants com-
plain that the finding of the trial court that they were entitled
to $250.00 for the improvement placed upon the property is sup-
ported by no evidence, or alternatively, is so clearly against
the overwhelming weight of the evidence so as to be'clearly
and manifestly wrong.
In a nonjury case the trial court is the judge of the
credibility of,the witnesses and the weight to be accorded their
testimony. Where there is evidence of probative force to support
the findings and judgment of the trial court, such findings will
not be disturbed, even though the evidence is conflicting and
the reviewing court might have concluded otherwise. Corn v.
First Texas Joint Stock Land Bank,.131 S.W.2d 752 (Tex. Civ. App.
1939,'writ ref"d). We are of the opinion that there was evidence
of probative force to support the trial court's judgment.
The main improvement which the appellants caused to be
placed on the property, was the,structure termed in the evidence
as the "small" house built.in the 1930's and improved in 1948.
That house contained about six hundred and thirteen square feet,
and was built of lumber. Unlike the "big" house,'the "small"
house had indoor plumbing. Mrs. Jo Wiltzius, the Supervisor of
Real Estate Activities, Acquisition and Disposition of the Urban
Renewal Agency -of the City of Georgetown testified that in her
opinion the."small" house had a.value of $2,300.00. Mrs.-Wiltzius,
on cross-examination, admitted that she was not an appraiser, and
that her allocation of the sum of $2,300.00 to.the "small" house
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was for "relocation purposes" of the Urban Renewal Agency. In
this connection it seems that the amount allocated to the exist-
ing structure on the condemned property relates to the reloca-
tion grant given by the Agency under federal law to the "owner -
occupant." Mrs. Wiltzius admitted that the "small" house was
sub -standard in the view of the Urban Renewal Agency and that it
was dilapidated and virtually depreciated out. She also stated
that since the land was "to be developed" the improvements were
more of a detriment than an asset{ and would have to be demolished.
Mrs. Wiltzius testified further that from the standpoint of the
Urban Renewal Agency the "small" house had a value of perhaps
$100.00 because it had "sinks and plumbing." Mrs. Wiltzius con -
eluded further in response to cross-examination that the only
reason that she had testified that the improvements had some
value was because people were living in those improvements.
Appellants also called Charles "Bud" Stockton, one of
the special commissioners appointed by the court to appraise
the property, to establish the value of the "small" house.
Although Mr. Stockton did not go inside either house, and only
drove by the property; he was of a mind that the "small" house
was worth a "trickle" more than the "big" house. On cross-
examination he admitted he did not think that there was any
"salvage wood" in either house and that perhaps someone would
have to be hired to demolish the houses. In Mr. Stockton's
opinion the "big" house and the "small" house were among the
worst houses in the Ridge section of west Georgetown.
The plaint of appellants' fifth point of error con-
cerns the admission of evidence about benefits to which appel-
lants might have been entitled under the "relocation plan" of
the Urban Renewal Agency. Over appellants' objection, the court
permitted Mrs. -Frances Carlson, the Relocation Supervisor of the
Urban Renewal Agency, to testify -concerning the relocation bene-
fits provided by federal law for "owner -occupants" of land who
are dispossessed as a result of the operation -of -the Urban
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c;vy or, Geo r"rL c• -a *
Mnn C^131akwc 1944 -148
Renewal program. Much of Mrs. Carlson's testimony was irrelevant
and immaterial to any issue to be determined by the court, and
to those portions of her testimony appellants' objections should
have been sustained. Appellate review of each of those errors
is made difficult because appellants were permitted a "running"
objection to all of Mrs.'Carlson's testimony. We are of the
opinion, however, particularly in view of the fact that the
trial was before the court, that the admission of those portions
of Mrs. Carlson's testimony -did not amount to such a denial of
the rights of appellants as was reasonably calculated to cause
and probably did cause the rendition of an improper judgment
in the case. Tex. R. Civ. P. 434.
We are of the opinion that other portions of Mrs.
Carlson's testimony were of probative value. That testimony
tendered to explain that values allocated to improvements for
"relocation purposes" in an Urban Renewal program, as testified
to by Mrs. Wiltzius, were not necessarily tantamount to "market
values."
Appellants',final point of error is that the court
erred in excluding the testimony of Henrietta Ison. Mrs. Ison
would have testified that she was a friend of Vira Maxwell, and
that Vira had told her that Sanko needed help, and that she
wanted him to have the house inasmuch as she, Vira, already had
a home. The court had previously admitted similar evidence
through the testimony of Lillie Thomas. Appellants have not
demonstrated that they were harmed by the refusal of the trial
court to receive the same testimony from -a second witness. Ap-
pellants' point of error is overruled.
The judgment is'affirmed.
Affirmed
Filed: November 13, 1974
Bob Shannon, Associate Justice
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