217 S.W. 219 | Tex. App. | 1919
This is an action of trespass to try title to about 500 acres of land, being described as being out of four surveys, the only one involved in this appeal being "about 50 acres of land off the southwest end of a *220 tract known as survey No. 30 1/3, certificate No. 54, in the name of the Day Land Cattle Company, being abstract No. 1238, and being all of said survey south and west of the Eagle Pass-Laredo Road," instituted by J. R. Sanford and W. C. Douglas against appellant and numerous other defendants. The cause was submitted to the court and judgment rendered in favor of appellees for all the land sued for by them. This appeal is prosecuted by the appellant alone.
Appellant entered its disclaimer to all the land except the 50 acres, hereinbefore described, off the southwest end of survey 30 1/3. It is agreed that the title to the 50 acres is in appellant unless five years' limitation has been perfected by appellees. Limitation is claimed by appellees under a warranty deed executed to them by O. H. Hector and wife on October 22, 1910, which was duly recorded on November 4, 1910, in the records of Maverick county. Appellees swore that immediately upon the execution of the deed to them they took possession of the land which was inclosed with 450 other acres of land conveyed by the Hectors, and have held continuous adverse possession of the same and paid all taxes accruing up to the time of the filing of the answer of appellant on April 14, 1919.
It is contended by appellant that the uncontroverted facts show that appellees took possession of the land under one O. H. Hector and his tenant, Robert Thompson, who were the tenants of appellant, and that the appellees took possession of the land in Subordination to the title of appellant as its tenants and that they have never repudiated such tenancy. C.J. Buckley, a witness for appellant, swore that a number of years ago his father leased the land in question from appellant, and that he and his father used that land and other leased tracts for ranch and dairy purposes, and as it was inconvenlent for them to use the 50 acres which was segregated from the rest of the tract by Laredo and Eagle Pass road, and as it lay adjacent to land owned by O. H. Hector, he was given permission, by the father of witness, to fence and use it, which he did. The witness testified:
"Mr. Robert Thompson rented the Hector pasture from Hector a few years, and he used that strip of land referred to, just the same as Hector did, and under the same arrangement; there was never any change from the time their lease, the Buckley, expired and they gave up the lauds."
Sanford testified that Thompson was Hector's tenant when appellees bought the land.
The uncontroverted evidence showed that the record title to the land was in appellant and Hector obtained and held possession of the land as the subtenant of Buckley, a tenant of appellant, and there was never a repudiation of the tenancy unless the execution of the warranty deed to appellees was a repudiation of the tenancy.
The following rule is formulated on the subject of preclusion of the tenant to deny the title of the landlord:
"Not only is the original lessee ordinarily precluded from denying the validity of the lessor's title at the time of making the lease, but all persons claiming or holding by, through, or under the lessee are also precluded. Were this not so, it is plain, the rule of preclusion would be of little benefit to the landlord. In accordance with principle, the assignee of the lessee is precluded to the same extent as the lessee himself from denying the lessor's title. And the fact that the assignment purports to transfer a fee-simple interest is immaterial in this connection. * * * A subtenant, like an assignee, is ordinarily precluded from questioning the title of the head landlord." Tiffany Land. Ten. pp. 486 and 487.
The doctrine of the text has been sustained by many decisions in different states of the Union, among the number, those of Texas, some of which will be reviewed by this court.
In the case of Reichstetter v. Reese, 39 S.W. 597, In which a writ of error was denied by the Supreme Court, a tenant conveyed the land to Reichstetter and possession was delivered to him, and it was held that Reichstetter could not perfect a title by limitation under the possession given by the tenant.
In the case of Werts' Heirs v. Vick,
When appellees bought from Hector, they were charged with knowledge that he had no record title to the land, and proper inquiry would have revealed to them that he was a tenant selling the land of his landlord. The fact that they paid $12 for all the other land and paid only $2 an acre for the land in controversy indicates a knowledge on their part of the facts.
It is contended by appellees that appellant cannot invoke the defense of estoppel as to his tenants because estoppel was not pleaded, but that contention is met and overthrown by article 7740, Revised Statutes, which provides that
"Under such plea of `not guilty,' the defendant may give in evidence any lawful defense to the action, except the defense of limitation, which shall be specially pleaded."
The statute is so construed by the Supreme Court. Mayer v. Ramsey,
The judgment is reversed, and judgment here rendered that appellees take nothing by their suit and appellant recover the possession of the 50 acres of land described by metes and bounds in the petition and all costs in this and the lower court expended.