Summary
The Texas appellate court affirmed a judgment notwithstanding the verdict against heirs claiming title to approximately 33 acres through adverse possession under the ten-year statute of limitations. The court held that testimony by the heirs concerning their deceased father's activities was barred by Texas's Dead Man's Statute. It further concluded that the heirs' shared possession with a brother and lack of ten years' notice of adverse possession could not establish limitation title.
Topics
Practice areas
Questions Presented
- Whether the heirs' testimony about their deceased father's activities on the disputed land was barred by the Texas Dead Man's Statute.
- Whether, after exclusion of that testimony, any evidence supported the jury's finding that plaintiffs acquired title by ten years of peaceable and adverse possession.
- Whether possession shared with Elembric Bragg, the record owner and predecessor in title, could satisfy the exclusivity and adversity requirements for ten-year limitation title.
- Whether the evidence established the required notice that plaintiffs' possession had changed from permissive or shared possession to adverse possession against the defendant or those under whom he claimed.
Holdings
- The trial court should have excluded the heirs' testimony concerning their deceased father's conduct and use of the disputed tract because the testimony concerned transactions or unilateral events involving the decedent and was offered by heirs claiming under him.
- No evidence remained, based on Eugene Bragg, Sr.'s actions, to support the jury's finding that plaintiffs had acquired limitation title under the ten-year statute.
- Possession shared with the record owner, or with a tenant or predecessor in title of the record owner, is not sufficiently exclusive or adverse to support acquisition of title by adverse possession.
- The evidence did not establish ten years' notice to the defendant or those under whom he claimed that plaintiffs' possession had become adverse.
Key quotations
“We hold that the trial court should have excluded the testimony in question.” (691)
“Without that testimony, there is no evidence—based on the actions of Eugene Bragg, Sr.—to support the first jury finding: that the plaintiffs sustained their claim to limitations title under the ten year statute.” (691)
“Any sort of joint or common possession by claimant and the owner or a tenant of the owner prevents the possession of claimant from having the requisite quality of exclusiveness.” (691)
“We also hold, with regard to the trial court’s instructions as to “possession” (set out above), that there is no evidence that ten years’ notice was given to the defendant, or to those under whom he claims, that any of the plaintiffs’ possession was adverse in character.” (692)
Factual background
The plaintiffs, heirs of Eugene Bragg, Sr., claimed title to a disputed thirty-three-acre portion of a larger tract based on adverse possession. Their claim relied substantially on testimony from six heirs about their deceased father's fencing, grazing, cultivation, and other use of the property. After Eugene Bragg, Sr.'s death in 1961, the heirs shared possession with their brother Elembric Bragg, who obtained a correction deed on October 2, 1964, covering a forty-seven-acre tract that included the disputed property; the evidence showed the heirs did not treat Elembric's possession or claim as hostile.
Procedural history
The heirs sued to recover approximately thirty-three acres of land and claimed title by adverse possession under the ten-year statute of limitations. The jury found that plaintiffs and their predecessors had peaceable and adverse possession for ten consecutive years, but the trial court granted the defendant's motion for judgment non obstante veredicto and refused to enter judgment on the verdict. The Court of Appeals held that testimony from the heirs concerning their deceased father's activities should have been excluded and that the remaining evidence did not support the jury's limitation-title finding; it affirmed.