Aрpellant, J. D. Gibbs, began this suit against appellee, L. C. East-ham, in the district court of Haskell county on April 6, 1908, for partition or division of 80 acres of land, described in his pleading, alleging that appellant and appellee each own an undivided one-half interest therein. On May 23, 1908, appellee answered, denying that appellant had any interest in the land, pleaded a cross-action of trespass to try title for the entire 80 acres, and also pleaded the statutes of limitations of three, five, and ten years as a bar to aрpellant’s recovery of any part of the land. The case was tried before the court without the intervention of a jury, who on November 30, 1910, rendered judgment for appellee for the entire 80 acres of land, from which judgment the cause is before this court on appeal. The trial court filed findings of fact and conclusions of law, and, as our judgment will be based thereon, they will be copied herein, and are as follows:
“(1) It was admitted that plaintiff and defendant claimed title under W. R. Moore as common source of title.
“(2) That land in сontroversy is a part of the Peter Allen survey patented to heirs of Peter Allen, deceased, by patent No. 365, vol. 17, dated December 31, 1866.
“(3) On March 18, 1890, W. R. Moore, the common source of title, conveyed to W. R. Gibbs and L. O. Eastham the 80 acres of land in controversy, described in said deed as follows: ‘All that certain tract or parcel of land situated in Haskell county, Texas, being eighty acres known as block 128, subdivision of the Peter Allen % league survey, No. 140, abstract No. 2, certificate No. 136, patent No. 165, vol. 17, as shown by map of said subdivision recorded in Book M — 7, pages 222, 3 and 4, deed records of Haskell county, Texas, said deed duly acknowledged and recorded in Haskell county, Texas, April 8, 1890’ — and said 80 acres is the land in controversy.
“(4) On January 17, 1895, by deed in trust and preferential deed of assignment, W. R. Gibbs conveyed his undivided one-half interest in the land in controversy, and other lands in Haskell and Baylor counties, owned by him jointly with defendant L. G. Eastham, and all of his stock of merchandise in Huntsville, Tex., to J. W. Cary, trustee, for the benefit of certain creditors therein named.
“(5) On February 19, 1895, J. W. Cary, trustee, by deed duly executed and acknowledged, and filed for record in Haskell county, Tex., on the 13th day of April, 1895, conveyed to Leon & H. Blum, together with other property conveyed by W. R. Gibbs, to him, an undivided one-half interest in the 80 acres in controversy.
“(6) Leon & H. Blum conveyed an undivided one-half interest in said 80 acres, together with other property above mentioned, to Hy-man Blum, trustee, on the 21st day of March, 1895, by deed duly acknowledged and recorded on the 19th day of April, 1895, in the deed records of Haskell county, Tex.
“(7) On February 29, 1S96, Hyman Blum, trustee, conveyed said property, including an undivided one-half interest in the land in controversy, to the Leon & H. Blum Land Company by deed duly acknowledged and filed for record in Haskell county, Tex., on April 13, 1896.
“(8) Plaintiff, J. D. Gibbs, purchased all the assets of W. R. Gibbs from Leon & H. Blum as early as 1896, but the undivided *325 one-half interest in the 80 acres in controversy, together with the lots in Baylor county, Tex., formerly owned; by W. B. Gibbs and the defendant, L. 0. Eastham, were not conveyed by the Leon & H. Blum Land Company until October 14, 1898, when by quitclaim deed the same was conveyed to plaintiff, Jell E». Gibbs, which deed was duly acknowledged and filed for record in Haskell county, Tex., on the 22d day of May, 1898.
“(9) On January 31, 1896, W. B. Gibbs executed his last will and testament, which was admitted to probate on October 28, 1897, in Johnson county, Tex., wherein,Mrs. Lillian C. Gibbs, wife of W. E. Gibbs, was made independent executrix of the last will and testament of W. B. Gibbs, without bond. W. B. Gibbs died in 1896.
“(10) Lillian O. Gibbs, as independent executrix of the estate of W. E. Gibbs, deceased, executed a deed conveying to defendant, L. 0. Eastham, for the consideration of $200, the land in controversy correctly described, this deed bearing date May 19, 1898, duly acknowledged and filed for record in Haskell county, Tex., May 25, 1898.
“(11) For two or three years prior to obtaining this deed from Lillian C. Gibbs, independent executrix, defendant, L. C. East-ham, had knowledge thаt plaintiff, J. D. Gibbs, had acquired and was claiming the half interest in the property in controversy, as well as other lands formerly owned by W. B. Gibbs, together with defendant, L. C. Eastham.
“(12) That about 189J L. C. Eastham employed Oscar Martin, an attorney at law at Haskell, Tex., to look after the lands in controversy in this suit, together with some other lands owned in the town of Haskell, Has-kell county, Tex., one W. H. Gibbs at that time owning a half interest in all of said lands, and L. 0. Eastham employed said Martin to take possession'of the 80 acres of land, block 128 and to fence it and lease it, and that said Martin did fence it in July, 1898, and leased it for the use and benefit of L. 0. Eastham, and also rendered and payed the taxes for L. O. Eastham, the defendant, from 1898 until 1904, and continued in possession of it until November 19, 1904. That L. O. Eastham wrote Mr. Martin, and asked him to find out whether or not W. B. Gibbs had ever transferred his half interest in the 80 acres of land in controversy or not, and that he, Martin, did make an examination of the records of Haskell county and ■ reported to defendant, Eastham, that he found no transfer of any kind, and that was prior to 1898.
“(13) L. 0. Eastham, defendant, was approached by one Col. Clayton, said Clayton desiring to sell Mrs. W. B. Gibbs’ interest in the land in controversy to defendant, East-ham, and said L. C. Eastham, as a matter of precaution, wrote to Oscar Martin in Has-kell, requesting him to examine the records and find out if the title was still in Gibbs, and Mr. Martin wrote to defendant, Eastham, that the title was still in Mrs. Gibbs, and subsequently defendant, Eastham, had her appointed independent executrix under the will of W. B. Gibbs, and bought from her a half interest in this 80 acres for $200, this being the same land that L. C. Eastham and W. B. Gibbs had purchased for $3,200. That L. C. Eastham has claimed the land as his own since the date оf the deed from Lillian C. Gibbs, independent executrix, to him, and paid the taxes on it since May 19, 1898, through his agents, Oscar Martin and Sanders & Wilson, claiming not to know of the interest of J. D. Gibbs, plaintiff, until the year 1907; but that J. D. Gibbs, plaintiff, and L. C. Eastham, defendant, carried on business in Huntsville, Tex., in adjoining buildings, and Eastham paid taxes on the land for the years 1896 and 1897 in the name of Eastham and Gibbs, and receipted plaintiff, J. D. Gibbs, fc¡r one half of said taxes. In the year 1902 plaintiff, J. X». Gibbs, through his agent, J. E. Allen, requested a statement from the defendant, Eastham, concerning the payment of taxes by him, East-ham, on said proрerty held jointly by said Gibbs and Eastham, including the land in controversy, and Eastham, defendant, promised Allen, agent of Gibbs, that he would have his bookkeeper get up a statement of same; but said statement was never furnished.
“(14) Defendant, Eastham, has not receipted plaintiff, Gibbs, for any taxes since he bought the land from Mrs. Gibbs and obtained deed from her.
“(15) The clerk of the county court of Has-kell -county, Tex., in recording the deed from Lillian C. Gibbs, independent executrix, to defendant, L. O. Eastham, made a mistake in recording the block number, which was correctly ‘128’ as shown in thе face of said original deed, but that the record clearly shows it to be block ‘28,’ and that some one with a lead pencil subsequent to the date of recording of the deed marked on the face of the record and above the block No. 28 the figures ‘128,’ and that the time of this attempt-éd change of the record, or more probably memorandum of reference by some abstractor, is not known, and that this pencil memorandum was discovered during the month of November, 1908, by the clerk of the county court.
“(16) Plaintiff, J. D. Gibbs, without the knowledge of thе defendant, L. O. Eastham, bought the assets of the estate of W. B. Gibbs, under the deed in trust, and conducted the business formerly owned by W. B.' Gibbs in a house right next door to the business house of defendant L. 0. Eastham.
“(17) Plaintiff, J. D. Gibbs, moved to California, where he has resided since October, 1898, and first learned that L. O. Eastham was rendering all of block 128 in his own name for taxes in December, 1904, and would have brought suit sooner than April 6, 1908, *326 the date of filing plaintiff’s original petition herein, for the recovery of the land in controversy, had it not been for a pending compromise settlement between рlaintiff and defendant.
“(18) Plaintiff, J. D. Gibbs, has paid other taxes in Haskell county since the year 1904, but has paid no taxes on this block 128, and has not rendered block 128 for taxes, and did not know until December, 1904, that defendant, Eastham, had procured the deed from Mrs. Lillian 0. Gibbs, independent executrix.
“(19) Plaintiff’s title papers were in the possession of his attorneys, and therefore his deed was not recorded until 1908.
“(20) Ten years had not elapsed since the inclosing of the land in controversy, block No. 128, by L. 0. Eastham and his agents and tenants prior to the filing of. the suit in this case.
“(21) Under thе agreement between W. R. Gibbs and L. 0. Eastham, the said L. 0. East-ham assumed control of the property in controversy, and rendered it for taxes, and paid taxes on it during the lifetime of W. R. Gibbs, and continued to do so subsequent to that time in the name of Gibbs and Eastham, until defendant, Eastham, bought for a small consideration the claim of Lillian O. Gibbs, after which time the said L. 0. Eastham rendered the property in his own name and neither the Leon & IT. Blum Land Company nor plaintiff J. D. Gibbs had any actual notice prior to December 14, 1904, of the execution or recording of the deed from Lillian C. Gibbs, independent executrix, to L. C. East-ham, nor of the fact that defendant, East-ham, had inclosed said land, nor that he was rendered and paying taxes thereon in his own name, nor that he was claiming all of said land to the exclusion of his coten-ants Leon & H. Blum Land Company, and the plaintiff, J. D. Gibbs, prior to December 14, 1904, had any constructive notice of any of said facts or of the attempted appropriation of said land by defendant, Eastham, to their exclusion as cotenants, except such constructive notice as wаs given by the recording of the deed from Lillian C. Gibbs, independent executrix, to the defendant L. C. Eastham, dated May 19, 1898, filed for record in Haskell county, Tex., May 23, 1898, duly acknowledged and recorded on pages 170 and 171, vol. 14, Deed Records of Has-kell county., Tex., which gave the description of the property incorrectly on the records as being block ‘28,’ instead of block No. ‘128,’ being the correct description, and except such constructive notice as was given by paying taxes in the name of defendant L. C. East-ham only, and receipt of revenue by East-ham, and Gibbs not receiving any of said revenue, nor paying any of the taxes, nor making any inquiry as to the land.
“Erom the above and foregoing findings of fact, I conclude as a matter of law:
“(1) The filing and recording of the deed from Lillian C. Gibbs, independent executrix, to L. 0. Eastham, and fencing and taking possession of the land in controversy by L. C. Eastham and the rendition and payment of taxes on the land by defendant L. G. East-ham in his own name, were acts constituting constructive notice to his eontenants Leon & H. Blum Land Company and J. D. Gibbs, the plaintiff, of his repudiation of his cotenancy, and set in motion the statute of limitations in his behalf, and said deed having been filed and recorded since May 23, 1898, and the possession and use of the land and payment of taxes thereon by defendant L. C. Eastham having continued since July, 1898, J. D. Gibbs having received none of said revenues, nor paid any taxes, nor made any inquiry as to said land, during said time, plaintiff’s cause of action was barred by the five-year statute of limitation before the filing of this suit, and defendant Eastham is entitled to recover on his cross-action by reason of said five-year limitations, and it is so adjudged by the court following Eastham v. Gibbs,
No attack was made in the trial court, nor is there made in this court by appellant on any of the findings of fact filed by the court below; and, while appellant urges in this court eight assignments of error, they are all directed to what is claimed by him as being erroneous conclusions of law, reached by the trial court from the facts found; claim being made by appellant that the judgment rendered below is not supported by the facts found, and that, on said facts so found, the judgment should hаve been for him in accordance with his prayer.
This ease was once before our Court o'f Civil Appeals, the opinion in which is found in
The trial court in his conclusions of lаw, as we construe them, found against appellee on his pleas of the statute of limitations of three and ten years, and we hold that, under the record, appellee failed to show a right to recover under either of the three or ten year statute of limitations pleaded by him. The conclusions of law reached by the trial court show, further, that the judgment for appellee was based on the fact that the trial court believed appellee had by his proof sustained, his plea of limitation of five years, and, if the trial court’s judgment is sustained, it must be on this ground. The trial court in his seventh and twenty-first findings of fact finds that neither appellant nor the Leon & H. Blum Land Company had any actual notice of the execution or recording of the deed from Lillian C. Gibbs to L. C. Eastham, or of any of the other acts and things on which appellee relies for notice to appellant of the fact that appellee was asserting a claim to appellant’s interest in the land, hostile to appellant’s rights therein, until December, 1904; and the trial court also having found in his twenty-first finding of fact that neither the Leon & H. Blum Land Company nor appellant prior to December, 1904, had any constructive notice of any adverse claim set up by appellee to appellant’s interest in the land, except such as flowed from recording the deed from Lillian C. Gibbs as executrix in Haskell county, on May 23, 1898, and as flowed from appellee having fenced and taken possession of the entire 80 acres, and rendering and paying taxes thereon in his own name, and receiving the entire revenue therefrom.
The trial court in his eleventh finding of fact, when considered in connection with his tenth finding of fact, shows that appellee had known for two or three years priоr to May 19, 1898, the date he purchased from Mrs. Gibbs, that appellant had acquired and was claiming a half interest in the land (and, as appellee was bound to know that he owned a half interest in it), it follows that he knew that appellant- had acquired and was claiming the interest formerly owned by his former joint tenant, W. R. Gibbs.
It is also shown in the court’s thirteenth finding of fact that in 1902 appellant, through his agent, Allen, requested of appellee a statement concerning the payment of taxes, which appellee had made on said property, and that appellee promised said statement, but had never furnished same.
As the findings of fact of the trial court show that at the time appellee began asserting an adverse claim to the interest in the *329 land covered by tbe deed to Mm from Mrs. Gibbs tbe legal title thereto was in tbe Leon & H. Blum Land Company, and that they were tenants in common with appellee at that time, and that appellant acquired his title from said land company, and the trial court furthеr finds as a fact that neither the Leon & H. Blum Land Company nor appellant ever had any actual notice of the fact that appellee was asserting a claim adverse to them until December, 1904, less than five years before this suit was filed, we hold that appellee did not and could not acquire title to appellant’s interest in the land under the five-year statute of limitation, for the further reason that, under the record in this cause, it is conclusively shown that appellant and appellee each own an undivided one-half interest in the 80 acres of land in controversy. The trial court erred in rendering judgment for the appellee for the entire 80 acres of land, and said judgment will be here reversed and judgment will be here rendered, decreeing and vesting in appellant and appellee each an undivided half interest in the SO acres of land described in the pleadings of both appellee and appellant.
It is further ordered that this cause be reversed and remanded to the trial court, with instructions to take such further proceedings only in this case аs will result in a proper partition of said 80 acres of land between appellant and appellee, as prayed for in appellant’s pleading, and as will result in properly vesting title in said parties, respectively, to the lands that may be set apart to them in said partition proceedings. •
It is further ordered that all costs incident to this appeal be taxed against the appellee, and that all costs incurred in the trial court except that incident to the partitioning the lands between appellant and appellee be adjudged against appellee, and it is so ordered.