54 S.W. 308 | Tex. App. | 1899
Lead Opinion
This is an action of trespass to try title by appellant Johnson against the appellees. The trial court found in favor of the appellees by virtue of actual adverse possession of the land in controversy under the ten years statute of limitation. The history of the case, together with a statement of appellant's title, is fully set out in the opinion of this court on the former appeal of the case, reported in 44 Southwestern Reporter, 1076.
The title of the plaintiff there stated we find to be established by the evidence in the record before us; and in this connection we take occasion to say, in reply to appellee's cross-assignment of error, that we think the action of the court on the identity of Leband with Leland was correct.
We find, as facts shown by the record, that one C.M. Hubby sold the land in controversy, which is 320 acres, in 1858, to J.C. Johnson, who immediately took possession, and lived upon the land and built a house upon it, and cultivated a small portion of the tract; and that he continued in possession until he sold to J.S. Sears, in 1860, who took possession of it; and that he continued in actual occupancy of the house by tenants, and that he also put in cultivation and inclosed about five *292 acres of the land, and used the same until 1866, when he sold to William Fellows, who then took possession and remained in actual occupancy about a year, when the same was left in possession of his tenants, who continued in possession until the land was sold at bankrupt sale of the estate of William Fellows to William Bonner, in the early 70's. Bonner then took and held actual possession by tenants, which has been continued and held in actual possession by the tenants of the real plaintiff herein, Lelia Dyer, who holds as an heir of Bonner, up to the filing of this action.
The facts on the question of possession, as stated, are similar to the facts found by this court when the case was formerly before us, which are fully stated in the opinion of the Supreme Court in
There is parol evidence establishing the privity of possession from Johnson down to the appellee Mrs. Dyer, the real owner of the land, who holds as heir of William Bonner. Therefore, if the court, for the reasons stated by appellant, committed error, which question it is not necessary to decide, in admitting deeds from Johnson down to Bonner conveying the land in question, the judgment nevertheless can be maintained upon the parol evidence establishing the facts found by us, connecting possession by Bonner and those under whom he claims with the possession of Johnson.
It has been held by our Supreme Court in the case of Bledsoe v. Cains,
These views, together with the facts found, are decisive of the case; therefore it is not necessary that we should rule upon the questions raised by the assignments of errors.
Affirmed.
The judgment is affirmed.
Addendum
The trial court found that Sears was in possession of the premises for a part of the time by tenants. In our opinion, we followed this finding of the court. If the trial court and we were in error in this conclusion, it could not affect the judgment of the trial court and this court, because there is evidence in the record which shows that Sears remained in possession until he sold the land in controversy to Fellows. With this conclusion, we adhere to the former disposition made of the case.
We have given careful consideration to the other questions presented in the motion for rehearing, and find no reversible error.
Motion overruled.
Writ of error refused.