65 S.W.2d 446 | Tex. App. | 1933
The appellants, Mrs. Dora Knight and her sister, Mrs. Mamie Hart, brought this suit in the district court of Rusk county against the appellees W. P. Moore and a number of others to recover an undivided interest in five tracts of land located in Rusk county, Tex., and here designated as follows:
1st tract, 280 acres of the Wiggins Survey
2nd tract, 57.5 acres of the T. J. Martin Survey
3rd tract, 207.5 acres of the T. J. Martin Survey
4th tract, 82 acres of the T. J. Martin Survey
5th tract, 17.5 acres of the T. J. Martin Survey
The appellees in their ánswer set up title to the interest claimed by appellants under the five, ten, and twenty-five year statutes of limitation. At the close of the evidence of both parties, the court submitted the case to a jury upon special issues, and, upon the jury’s finding to such issues, the court entered judgment for appellees. for title to the land by limitation, and the appellants have duly prosecuted this appeal.
The appellants offered no evidence in support of their claim to the title to the 17.5-acre tract, and the judgment as to such tract will not be disturbed.
Appellants claimed title to an interest in the remaining tracts by inheritance from Emma Day, daughter of Mrs. Georgia Day, the first wife of Lawrence Day. The right to recover any part of the 207.5-acre tract is predicated upon such tract being the community property of Georgia and Lawrence Day. The deed to such tract was made to Lawrence Day on November 7, 1873, without any mention in the deed as to whether the tract was his separate property or the community property of himself and Georgia Day. The property was in the possession of Georgia and Lawrence Day at the time of Georgia Day’s death. Under these facts, there is a presumption that this tract of land was community property of Georgia and Lawrence Day. Speer’s Marital Rights (3d Ed.) § 350. This being true, the burden of proof was upon appellees to show this tract of land was the separate property of Lawrence Day. Id. § 435, p. 520. We regard the evidence offered on the issue as to whether Georgia and Lawrence Day were married before or after the purchase of the above tract of land as conflicting, and, as the ap-pellees failed to request this issue of the date of the marriage to be submitted to the jury, they would on appeal be regarded as having waived such issue and claim of title to' this tract of land on the ground that it was acquired before marriage and was the separate property of Lawrence Day.
There remains but one question, and that is the sufficiency of the evidence to support appellees’ title to the four tracts of land by limitation. Appellants own a ½4 interest in the 207.5-acre and the 82-acre tracts and they own a ¾68 interest in the 280-acre and the 57.5-acre tracts, unless such interest has been lost by appellees’ claim of ti-
We have concluded that the evidence is insufficient to support the limitation title to the land awarded appellees by the judgment of the trial court. The relation between appellees and appellants is that of cotenants; appellees entering into possession of the land as cotenants. Before appel-lees could change this relationship so as to acquire appellants’ title by limitation, it was incumbent upon them to give appellants notice of their adverse claim. The evidence relied upon to give such notice consists of their long possession coupled with the collecting of rents; paying of taxes, making improvements, and the sale of-timber from the land. We regard the law as well settled that evidence of such acts merely will not constitute notice to appellants of appel-lees’ adverse claim. 11 Tex. Jur. §§ 28, 29,' and eases therein cited.
Appellees insist that the case of Rae et al. v. Baker et al. (Tex. Civ. App.) 38 S.W.(2d) 366, is authority to the contrary as to the above holding. We do not so regard it. Any apparent conflict may be accounted for by the fact that Rae’s entry and possession of the property was not begun as a cotenant but as a claimant of title by a deed duly registered to all the land, and, when the Bakers later became his cotenants, that relationship in the nature of a trust which the law recognizes among cotenants when the entry and possession is -made as a eotenant never did exist.
The judgment of the trial court will be reversed and here rendered in favor of appellants for title to a ⅛ interest in the 207.5-acre and the 82-acre tracts, and ¾68 interest in the 280-acre and the 57.5-acre tracts; and the judgment will -be affirmed as to the 17.5-acre tract.