COMBES et al. v. STRINGER et al., 167 S.W. 217

HAWKINS, J. This action was originally filed on September 8, 1906, by S. M. Combes and F. A. Combes, in the United States Court' at Houston, but, upon pleas to its jurisdiction being filed, an agreement was made under which they refiled their suit on November 25, 1906, in the district court of Montgomery county, under a stipulation that the rights of the parties should be determined as though this suit had been originally filed therein on September 8, 1906. The action is one of trespass to try title to two tracts of land; the first embracing 2,289% acres and the second 587% acres, out of the T. J.

Williams survey in Montgomery county. Defendants Stringer and Prewitt answered, separately, each disclaiming all of the land sued for except the tract of 160 acres described by metes and bounds which he claimed- under the statute of limi-, tation of ten years; each describing and claiming a certain piece of land different from that described and claimed by the other. The other defendants, all of whom asserted contingent interests as attorneys’ fees, claimed subject to the rights of Stringer and Prewitt, respectively. The case was tried without a jury.

The trial court rendered judgment for plaintiffs for all of the lands sued for except the tract of 160 acres so claimed by Stringer which it awarded to him. From so much of said judgment as was in Stringer’s favor, plaintiffs appealed to the Court of Civil Appeals, which affirmed the judgment of the trial court, whereupon appellants applied to this court for a writ of error, which was granted.

The questions which are presented here arise under Stringer’s plea of limitation and two agreements of the parties and certain other evidence, as follows, viz.: Upon the trial the following agreement of the parties was introduced: “It is agreed that the plaintiffs in the case have the record title to the land in controversy, subject to be defeated only by the claim of limitation as pleaded by the defendants, and that, unless they have title by limitation, plaintiffs are entitled to recover the land sued for.” Plaintiffs thereupon rested their case, after which defendants undertook to show title by limitation.

There was evidence which showed that MeShan, from whom Stringer bought, had said 160 acres surveyed out first in 1894, and that the only portion of it which had ever been held in actual possession was. a small inclosed tract, the precise quantity and description of which are not definitely shown by the pleadings or evidence. After the introduction by defendant Stringer of his testimony in support of his plea of limitation, plaintiffs introduced in evidence five written instruments covering said large tract of 2,289% acres, which included the. 160 acres claimed by Stringer, as follows:

(1) Deed dated April 1, 1899, filed for record December 7, 1899, from Margaret Brown and husband, Edmund Brown, to H. W. Downey. Defendants proved that, just after purchasing said large tract, Downey, through a tenant, took possession of a part of it and put camps and buildings thereon and men therein to hold said large tract for him, claiming it under said recorded deed to him.

(2) A release of the vendor’s lien retained in said deed to Downey.

(3) A deed from said Downey and his brother to the Ives Lumber Company, dated November 4, 1899, recorded December 7, 1899.

(4) A deed from the Ives Lumber Company to Rogers, dated March 26, 1904, recorded January 24, 1905.

(5) A deed from Rogers to plaintiffs, dated January 18, 1905, recorded January 24, 1905. ■ Thereupon the following agreement was made by the parties: “It is admitted that the chain of title derived through the deeds introduced in evidence by plaintiffs, consisting in part of the last foregoing five instruments, is the only chain of title under which P. A. and S. M. Combes claim this land” — the reference therein being to the aforesaid five instruments.

Plaintiffs in error contend that Stringer’s title by limitation should be restricted to the land of which he and those under whom he claims held actual possession for the statutory period, and should not be extended to include enough more to make up 160 acres.

In support of that contention they say the legal effect of said two agreements of the parties is to conclusively show that said deed to Downey carried the record title to said entire 2,289%-acre tract, embracing all the.land claimed by Stringer; and thereupon they argue that inasmuch as Downey went into actual possession of a portion of said large tract under that recorded deed before the completion of said period of limitation of ten years relied upon by Stringer, and thereunder asserted title to all of said large tract, Downey’s possession should be treated as extended, by operation of law, to the boundaries of said large tract, excepting only said small inclosed tract which was so held in actual and adverse possession, and that such constructive possession by Down-ey and those claiming under him was superior to the constructive possession of Stringer and those under whom he claims of so much of said small inclosed tract, the statutory complement of 160 acres, and stopped the running of the statute of limitations in favor of -Stringer and those under whom he claims as to all of said 160 acres excepting said small inclosed tract so held in actual adverse possession.

The action of the Court of Civil Appeals thereon, and the reasoning upon which it was based, are shown in the following excerpt from its opinion in this case, which may be found in 142 S.

W. 668: “By the second assignment it is insisted that the court erred in rendering judgment for ap-pellee, because it is asserted that plaintiffs in 1899 acquired title to the 2,289% acres of land, and went into possession of a portion thereof, at which time it appears that appellee was only in actual possession of some 12 or 15 acres of the 160 acres claimed by him, and that therefore appellants’ constructive possession extended to their entire tract of 2,289% acres, of which the 160 acres formed a part, for which reason they assert appellee was not entitled to recover except that part thereof which he had actually inclosed, to wit, some 12 or 15 acres.

Citing, in support of this contention, Evitts v. Roth, 61 Tex. 81; Whitehead v. Foley, 28 Tex. 289; Hunnicutt v. Peyton, 102 U. S. 333 [26 L. Ed. 113].

This contention would be true if it were conceded that appellants had title to the 2,289% acres at the time they took possession of such portion thereof in 1899, but the record fails to disclose that appellants had title to said land at said time, unless it can be said that the agreement above mentioned gave them such title; but by it ap-pellees insist that they only admitted that the plaintiffs in the case had record title to the land in controversy at the time that suit was filed.

This agreement does not state when they acquired such record title; and, in the absence of such statement, we are inclined to believe that it should be construed to mean that it was only intended to be admitted thereby that plaintiff, at the time that the case was tried, had the record title to the land in controversy. And, as the suit was not brought until 1906, appellee’s title to the 160 acres was complete by limitation at the time the agreement was made, for which reason this assignment is overruled.” The issue turns upon the effect to be given to said agreements.

We find no conflict between them; effect should be given to both. Together they admit that, at the time of the trial, plaintiffs had the record title to the land in controversy; that- said title was derived through said deed to Downey; and, as a necessary consequence, that said deed carried the record title to said land. Under that construction of said agreements, and under the other facts shown by the evidence, it follows, and the Court of Civil Appeals, in that view of the matter, concedes, in effect, that said contention and argument of plaintiffs in error are sound.

Stringer was not entitled to a judgment in his favor for any land other than that which he and those under whom he claims, had held in actual possession for ten years prior to the filing of this action. Whitehead v. Foley, 28 Tex. 268; Evitts v. Roth, 61 Tex. 81, and authorities therein cited; Parker v. Baines, 65 Tex. 605.

Plaintiffs in error further contend that, because the pleading and evidence failed to furnish field notes or other sufficient description of such portion of said land as was so held in actual possession for said statutory period, no judgment therefor in favor of Stringer can be framed, and that, as a consequence, we should here render judgment against him, as to it, citing the" following decisions of Courts of Civil Appeals: Wilcoxon v. Howard, 26 Tex. Civ. App. 281, 62 S. W. 802, 63 S. W. 938; Sparks v. Hall, 29 Tex. Civ. App. 177, 67 S. W. 916; Thompson v. Dutton, 69 S. W. 996. We do not think so.

We believe that, while the more commendable practice would have been for Stringer to have seasonably presented to the trial court, in his pleading and through evidence, definite.field notes or description of such land as had been so held in actual possession for said period, the more equitable and better practice here, under the circumstances, is to yet permit him to do so. The judgments of the Court of Civil Appeals and of the district court will be reversed, and the cause remanded tó said trial court. Reversed and remanded.