156 Tex. 28 | Tex. | 1956
Lead Opinion
delivered the opinion of the Court.
This suit in trespass to try title was brought by the respondent, Paul L. Headers, against petitioner, Severo Vasquez, to recover the title to and possession of a tract of 100 acres in Hidalgo County, a part of the Llano Grande Grant, and more specifically a part of what is referred to in the record as the San Pedro Ranch. In a trial to the court without the intervention of a jury, the court rendered its judgment that respondent take nothing by his suit and that petitioner go hence without day and recover his costs. The judgment has been reversed and rendered in favor of respondent by the Court of Civil Appeals, 278 S.W. 2d 956.
“A. Six houses.
“Q. These then, are the same six houses that were on the place when you moved on there to look after Mr. Perkins cattle?
“A. Yes sir. But I have built some on there.
“Q. How many house would you say that you have built?
“A. I have built or partially built four houses.
“Q. You have built four houses?
“A. Yes, sir.” (Emphasis added.)
The record shows that these houses were built by the petitioner prior to 1939, and not later than 1932 or 1933. The record further shows that petitioner cleared land, cultivated fields and occupied the premises each and every year from 1922 until 1949, the date suit was filed.
The testimony shows that at one time a levee was built on the land, and permission was obtained from Mr. Vasquez to build it. One of the owners, Mr. I. N. Rounseville, held an unrecorded deed to the 100 acre tract from 1921 to 1943, and the trial court found as a fact that if he, Rounseville, “had come upon said land at any time during the period from 1922 to 1943, he would have found that Vasquez was in possession of same, claiming to have purchased it from Dolese, and claiming it as his own, and would have found Vasquez farming the land, running livestock thereon, and making his home thereon; that during such period from 1922 to 1943, I find no one claiming any rent from Vasquez, nor do I find that anyone challenged his possession or claim of ownership.”
The record shows that respondent purchased the 100 acres involved in this suit in 1943 from the same I. N. Rounseville who held his deed off the record from 1922 until 1943, and that respondent knew that petitioner was on the land, but did not file this suit until 1949; that he went on the land about the time of purchase and later saw people there but did not inquire of Vasquez why he was there; that he attempted to cut brush in 1948 and was stopped and ordered off the premises by Vasquez.
“We think the finding of the jury was fully justified by the proof. It is hardly necessary to reiterate what has often been stated by the courts. It is not necessary that actual notice of an adverse holding and disseizin be brought home to a coten
For other cases announcing the same rule see Mauritz v. Thatcher, Tex. Civ. App., 140 S.W. 2d 303, wr. ref.; Rae v. Baker, Tex. Civ. App., 38 S.W. 2d 366, wr. ref. We think the following rule announced in the case of Mauritz v. Thatcher, supra, is particularly applicable to the facts in the present case:
“It is the settled law in this state that a tenant cannot dispute the title of his landlord by setting up a title either in himself or in a third person during the existence of his tenancy until such notice of a termination thereof is given to the landlord as amounts to an actual disseizin. Limitation upon an adverse possession in a case of this kind begins to run from the time of such notice of a termination of tenancy. It is not necessary, however, that actual notice of an adverse holding and disseizin be given to a cotenant or owner. Such notice may be constructive and will be presumed to have been brought home to the co-tenant or owner when the adverse occupancy and claim of title to the property is so long-continued, open, notorious, exclusive and inconsistent with the existence of title in others, except the occupant, that the law will raise the inference of notice to the co-tenant or owner out of possession, or from which a jury might rightfully presume such notice. * * *”
The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.
Justice Wilson not participating.
Opinion delivered May 23, 1956.
Dissenting Opinion
joined by Justice Culver, dissenting.
One might go along with the result in this case if the opinion should hold, as Mauritz v. Thatcher possibly meant to do, that after ■& certain extended period of ordinary adverse possession by a tenant has transpired without assertion of title meanwhile by the landlord-owner, subsequent ordinary adverse possession of the tenant shall be deemed to be with notice to the landlord of repudiation of the tenancy, so that such subse
Such a rule would entail some apparent conflict with the rule as stated in many of our decisions, and indeed in Mauritz v. Thatcher itself, since the rather vague language in which the rule is generally couched indicates that there must be not only the element of unusually long time, but also the element of unusual obviousness or “notoriety” of acts or circumstances other than the mere extended lapse of time. However, the suggested rule would have the virtue of clarity and simplicity and would, I think, have a substantial basis in practical justice. In the present and no doubt some other cases, I think we actually apply the suggested rule but leave the law somewhat confused by adhering to the old language and by pointing out this and that ordinary act of adverse possession as if it had important bearing.
One trouble about this latter method of approach is that we are likely to lump everything together — long continuance of adverse possession and particular acts or circumstances — without reference to when these latter occurred. We thus have no clear basis upon which to say that, although a tenant or cotenant began his adverse possession without repudiation of his special status, and was therefore ineffectively claiming the land as against his landlord or cotenant, nevertheless at some particular date thereafter his special status was repudiated and his subsequent adverse possession was accordingly effective for this or that particular limitation period. For example, where a tenant or cotenant has merely ordinary adverse possession for fourteen years, without assertion of title by his landlord or cotenant, I think it quite incorrect to reason that the former hereby acquires title against the latter. In such a case it conceivably might be reasonable to say that at the end of the tenth year the landlord or cotenant out of possession is deemed to be on notice of the claim, so that the remaining four years would be years of effective adverse possession. But it seems incorrect to reason that, there being ordinary adverse possession for fourteen years, the landlord or cotenant out of possession has been on notice of the adverse claim from the very beginning.
In the instant case I find no reasonably clear evidence of repudiation of the tenancy unless it be mere extended lapse of time, to wit, twenty-seven years. We doubtless could say with much reason that at least by the end of the seventeenth year
In Moore v. Knight, the result evidently rested on the nature of the acts of adverse possession and the absence of assertion of title by the cotenants out of possession, as distinguished from the matter of mere lapse of time. The facts in that case are so different from those of the instant case that comparison is quite difficult, and I think the decision does not particularly support the instant decision as we have written it.
Since the law as we write it evidently rejects mere length of ordinary adverse possession plus nonassertion of title by the owner as a ground for acquiring limitation title against a landlord or cotenant out of possession and purports to rely on inadequate acts and circumstances as constituting notoriety, I cannot agree with the decision, and accordingly enter this reluctant dissent.
Opinion delivered May 23, 1956.
Rehearing
on Rehearing delivered the opinion of the Court.
The respondent has filed his motion for rehearing calling our attention to the fact that the Court of Civil Appeals did not pass upon his Point Three which was an assignment in that court involving the sufficiency of the evidence, and he urges that if the case is to be reversed by this court it must be remanded to the Court of Civil Appeals for consideration of the point over which it has final jurisdiction.
The Court of Civil Appeals’ holding of no evidence in this case resulted from an erroneous concept of the quantum of evidence necessary to prove unequivocal notoriety. Accordingly, the case is remanded to the Court of Civil Appeals for consideration of respondent’s Point Three.
In all other particulars, the respondent’s motion for rehearing is overruled. Respondent’s motion for rehearing is granted in part and overruled in part.
Opinion delivered July 11, 1956.