F. E. Hill, et al v. Ruth Washington Jackson, et al--Appeal from 87th District Court of Freestone County

AFFIRMED

OCTOBER 18, 1990

NO. 10-89-107-CV

Trial Court

# 87-001-B

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

F. E. HILL, ET AL,

Appellants

v.

RUTH WASHINGTON JACKSON, ET AL,,

Appellees

* * * * * * * * * * * * *

From the 87th Judicial District Court

Freestone County, Texas

* * * * * * * * * * * * *

This is a trespass to try title action brought by appellees against appellants over a 27-acre tract of land located in Freestone County. Appellees claimed title and right to possession under the ten and twenty-five year statutes of limitations. See V.T.C.A., Civil Practice & Remedies Code 16.026 and 16.027. Trial to a jury resulted in a judgment for appellees.

Appellants seek reversal on grounds that (1) appellees' attempted citation by publication was defective as a matter of law, (2) indispensable parties to this action were absent, (3) there was no evidence to support the jury's findings that the appellees had established peaceable and adverse possession of the 27-acre tract of land under the 10-year and 25-year limitations statutes or, alternatively, the jury's findings were not supported by factually sufficient evidence, and (4) appellants' requested questions to the jury on notice of repudiation of title and permissive possession were erroneously refused. We overrule these complaints and we affirm the judgment.

Appellants argue that service of process by publication was defective, depriving the trial court of jurisdiction. Rule 121 of the Texas Rules of Civil Procedure provides that "[a]n answer shall constitute an appearance of the defendant so as to dispense with the necessity for the issuance of service of citation upon him." Vernon's Ann.Rules Civ.Proc., Rule 121. Rule 121 has been construed as barring any attacks upon defects in service of process because the answer to plaintiffs' pleadings effectively waives any defects in service. Perfect Union Lodge v. Interfirst Bank, 713 S.W.2d 391, 393 (Tex.App.--San Antonio 1986, affirmed 748 S.W.2d 391). The principal purpose of service of process "is to make reasonably certain that all parties to a suit are notified . . . [t]hus, service and notice in a technical sense is incidental where the main purpose of obtaining the appearance of all parties and their participation is accomplished." Hill v. W.E. Brittain, Inc., 405 S.W.2d 803, 807 (Tex.Civ.App.--Fort Worth 1966, no writ). Appellants were given actual notice because they appeared and participated in the district court proceeding. They claim only that some of the technicalities of the service of process rules were not followed. We believe the principal purpose of service of process was accomplished and that any defects in service of process were waived by the appellants' answer and participation at trial. In any event, they do not show harm.

Appellants' second point of error alleges that the trial court erred in denying appellants' motion for new trial because indispensable parties to this action were absent. There were four parties appellants claim were indispensable. Three obtained an interest in the land from one of the appellees and their interest rested upon appellees' interest. The fourth party was F.R. Hill, Trustee, who obtained his interest as trustee by and through the estate of Fredrick Hill, III, deceased. It should be noted that F.R. Hill did answer and participate at the trial individually. Appellants' objection to the non-joinder of these parties was first made in their First Amended Motion for New Trial.

Rule 39 of the Texas Rules of Civil Procedure governs the joinder of persons needed for just adjudication and provides in part as follows:

A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party . . . .

The Texas Supreme Court interpreting Rule 39 said that it would be the exception rather than the rule where a person's presence was so indispensable that it deprives the court of jurisdiction to adjudicate between the parties already joined. Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200, 204 (Tex.1974). The court reaffirmed the Cooper decision and added that parties participating at trial who do not complain have no right to do so at the appellate stage just because the trial court did not theoretically settle the entire suit. Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982). The Court of Appeals added that failure to request the joinder of absent landowners until the day of trial was a point too late in the litigation. Malloy v. Newman, 649 S.W.2d 155, 158 (Tex.App. 3 Dist. 1983, no writ). It is clear from these authorities that raising the issue of indispensable parties for the first time in a motion for new trial is not timely and does not preserve the error for appellate review.

Appellants' third point of error claims that there was no evidence to support the jury's findings that the appellees had established peaceable and adverse possession of the 27-acre tract of land under the 10-year and 25-year statutes of limitations or, alternatively, that the jury's findings were not supported by factually sufficient evidence.

The statutes of limitations in question require the claimant to demonstrate for the statutory period possession of the land; cultivation, use or enjoyment of the land; an adverse or hostile claim; an inclusive dominion over the property; and appropriation of it for his own use and benefit. Woolaver v. Texaco, Inc., 638 S.W.2d 153, 155 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.).

When considering a "no evidence" point "we consider only that evidence and inferences tending to support the jury verdict and disregard all evidence to the contrary." International Armament Corp. v. King, 686 S.W.2d 595, 597 (Tex.1985). If there is any evidence of probative value to support the jury verdict we must affirm. Id. The evidence consists of testimony by appellees, appellants, Carter family members, tax assessors, petroleum land men and a mapper/appraiser for the Freestone County Appraisal District. The 27 acres of land in question was purchased by Joe Carter in 1900 as part of a larger 150-acre tract of land. The 27 acres compose the north corner of the 150-acre tract. In 1925 the land was partitioned by Joe Carter, Ruth Washington, Phillip Washington, Carrol Webb and Mason Carter. By deed dated September 18, 1928, Joe Carter, his children and their spouses conveyed all of their right, title and interest in the 27 acres at issue in this matter to Mason Carter. The 27 acres were sold at a sheriff's sale on November 3, 1931, to J.C. Evans in order to satisfy a judgment in favor of Evans. On February 5, 1932, J.C. Evans deeded the same 27 acres back to Mason Carter. However, on June 2, 1936, a second sheriff's sale was held and the 27 acre tract of land was sold to F.E. Hill, appellants' predecessor, in order to satisfy a new judgment in favor of J.C. Evans.

At the trial evidence was presented that Mason Carter and his brother-in-law, Phillip Washington, continued to use the land for farming and cultivation purposes after the second sheriff's sale in June of 1936. Upon Mason's death in June of 1943, Phillip Washington cultivated and farmed the land with the help of his daughter, Ruby Washington Caldwell. Ruby helped during the 1940's and 1950's. Phillip also had the help of Eddie Lee Carter's sons, Otis Carter from 1948 through 1959 and Billy Carter from the 1940's until Phillip's death in May of 1964. Additional evidence shows that Billy Carter, in accord with the other family members, grazed cattle on the 27 acres after Phillip Washington's death up to and including the initiation of this case.

There is ample evidence of probative value to support the jury's findings. Accordingly, appellants' "no evidence" complaint is overruled.

Appellants urge in their alternative argument in point of error number three that the jury's findings were not supported by factually sufficient evidence. This complaint requires consideration of all of the evidence. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980). The Supreme Court has said that in order to reverse a judgment on this assignment of error, the Court of Appeals should state why the jury's answer is so against the great weight and preponderance of the evidence "as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias"; and should further state "in what regard the contrary evidence greatly outweighs the evidence in support of the verdict." Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex.1986).

Appellees presented testimony that they or their predecessors have been in continuous possession of the 27 acres since before June of 1936 and that they cultivated the land until the early 1960's. Additional evidence shows that after farming ceased on the land they grazed cattle on the 27 acres. Testimony revealed that they believed they were the true owners of the land, that they exercised exclusive dominion over the land, that only family members were permitted to use the land, and that others would not have been permitted free use of the land. Evidence was also presented that appellees adversely claimed the land for the 10-year and 25-year time-period required by each statute respectively. Finally, evidence was presented that the Carter Family had always paid taxes on the 27-acre tract following its partition.

Appellants presented evidence that Mason Carter continued to use the 27 acres after 1936 with the permission of F.E. Hill. This would establish Carter as a permissive tenant and not an adverse claimant. There was further evidence presented by appellants that they had paid taxes on the production of oil and gas for the production unit the tract is in, but that they had only entered the land on two occasions since 1936. The first time was in 1978 to survey the land and the next entry was in preparation for trial of this case.

In light of all of the evidence, we cannot determine that the verdict was not supported by factually sufficient evidence. It should be noted that appellants' reliance on section 16.031 of the Texas Civil Practice and Remedies Code in arguing their position on the limitations issue is misplaced. Section 16.031 applies to land entirely surrounded by land owned by the adverse possessor. This is not the present situation. See Nagel v. Hopingardner, 464 S.W.2d 472, 474 (Tex.Civ.App.-- Houston [14th Dist.], no writ).

The final point of error asserts that the trial court erred by refusing to submit appellants' special questions on notice of repudiation of title and permissive possession.

The questions appellants believe should have been submitted to the jury read as follows:

(1) Do you find from a preponderance of the evidence that these activities were ever brought to the attention of [appellants] prior to phone conversations between F.R. Hill, Jr., and Henry Carter in May of 1986.

(2) Do you find from a preponderance of the evidence that

[appellees] remained in possession of the tract with permission of the [appellants].

Under Rule 277 of the Texas Rules of Civil Procedure the trial court is vested with discretion to submit issues to the jury by elements or to submit issues broadly. The special questions that were submitted to the jury in this matter were broad-form questions which required the jury to find that the appellees adversely possessed the land in question for the statutory periods of 10 and 25 years. The court did not define "notice" but the court did define "adverse possession" as "an actual and visible appropriation of the land, commenced and continued under a claim of right inconsistent with and hostile to the claim of another." This definition encompassed the issues of notice and permissive entry. Therefore, the jury's finding of adverse possession answered these issues.

Appellants' points and contentions are overruled. The judgment is affirmed.

VIC HALL

DO NOT PUBLISHJustice