203 S.W. 63 | Tex. App. | 1918
This suit involves the title to 160 acres of land in Young county. The appellants own the superior record title, and the appellee claims by limitation. The land was patented to Jacob Werts, and the appellants are his heirs. On September 1, 1880, by a written lease, duly recorded, Jacob Werts, in consideration of $250 paid, leased the land in controversy for the period of 50 years to J. H. Carter, through whom appellee claims. In 1881 the said J. H. Carter bought the land at sale for taxes, and the sheriff and tax collector executed and delivered tax deed therefor, which was duly recorded. In 1883 Carter executed quit-claim deed to the land to J. S. Timmons, who in 1911 conveyed it by general warranty deed to other parties. The land thereafter passed through several successive grantees by warranty deeds, being ultimately conveyed by such deed to appellee, D. G. Vick, in the year of 1915. The conveyances referred to were duly recorded at the time of their execution. The case was tried upon an agreed statement, and it was agreed, in addition to the facts already stated:
"That D. G. Vick has title to said land by limitation, unless such limitation title is defeated by the lease above mentioned from Werts to Carter. * * * That neither said Vick nor those under whom he claims have ever given to Jacob Werts, or his said heirs, any actual notice that the relation of landlord and tenant was repudiated; the recording of adverse deeds and open possession thereunder being the only repudiation of such relationshp."
Appellee, Vick, brought this suit against the unknown heirs of Jacob Werts in the form of trespass to try title, and also set up title by limitation under the 5 and 10 year statute. The appellees appeared, pleaded not guilty, and by a cross-action, in form of trespass to try title, prayed for judgment for the land.
It was not shown or claimed that the tax deed taken by Carter conveyed the title; no evidence being offered to show that the prerequisites to a valid sale had been complied with. Such deed was therefore a nullity, and conveyed no more right than would have been acquired by a deed from a stranger to the title. Appellee, however, relies upon the taking and record of the deed as a repudiation, and notice thereof to the landlord, Werts, of the tenancy, and thus starting limitation to run. It is the law familiar to all that the possession of the tenant is the possession of the landlord, and possession acquired under tenancy cannot be said to be adverse in support of limitations until such time as it is shown that the landlord had notice of the repudiation of the tenancy and adverse claim of his tenant. It was held in the case of Udell v. Peak,
The registration of a deed does not have the broad effect of notice contended for by appellee, and as might be inferred from the literal construction of the provisions of article 6842, R.S. It has been frequently announced that the purpose of the registration law was to protect those subsequently dealing with the land and the record of a deed is notice only to those claiming under the grantor. White v. McGregor,
It is also, we think, rightly settled that all entering possession under the tenant or lessee occupy the same position as the original tenant and lessee, and are equally estopped to deny that the possession thus acquired is that of the landlord. Cobb v. Robertson,
The possession of the appellee and that of his vendors is to be regarded as possession of the landlord until the repudiation by the institution of this suit. This repudiation forfeits the right of appellee to claim further under the lease. Reese v. Swartz, 187 S.W. 245; Wildey Lodge v. City of Paris,
Under the agreed facts in this case, we think that appellants are entitled to judgment, and we therefore reverse the judgment of the court below, and here render judgment in their favor.
HALL, J., not sitting.