Emily B. Gillespie and others v. Henry Jones and another, 26 Tex. 343

Moore, J. This is an action of trespass to try title by the plaintiffs in error against the defendants in error. The latter rely for a defence upon the statute of limitations. And the court, below did not err in holding, that the law and evidence fully sustained this defence.

The testimony shows that the land in controversy was in the actual possession and occupation of the defendant Bowman, and those holding under him, under a lease executed to.him by the defendant Jones, for more than five years before the commencement of this suit; and that Jones had regularly paid the taxes upon the land, and claimed it under a deed which had been duly recorded, for the requisite period to complete the bar of the statute. The lease, however, from Jones to Bowman, was not recorded until after the commencement of the suit, and for this reason the plaintiffs objected to its being read in evidence.

But this objection is manifestly not tenable. The, lease need not have been placed upon record at all. The only object for its introduction in evidence was, to show that the actual possession of Bowman was in contemplation of law, the possession of his co-defendant Jones, and that the land was held by the latter through his tenant under his deed, which was shown to have been duly recorded for more than five years before the commencement of the suit. That the possession of the tenant is that of his landlord, is a matter of familiár learning.

And there is nothing in our statute that requires the fact of tenancy to be created, or proved by a recorded lease, to enable the landlord to maintain the defence of limitation. If there was any objection to the admissibility in evidence of the lease, for want of due proof of its execution, it was not taken in the court below, and could not now be urged here. The counsel for the plaintiffs in error ingeniously argues that the ■defendants failed to sustain their defence, under the statute of limitations, for want of proof of an open and notorious claim of adverse possession, or title.

It cannot be questioned, that a party cannot avail himself of the statute, unless his possession has been in point of fact adverse to the title which he seeks to resist. And to constitute this, there must be an open, visible and exclusive possession of the land in controversy, that the adverse claimant :máy be thus notified, that his title is disputed. But the occupant .is not required to give notoriety or publicity to the title, or right ■.under which he claims to hold, to enable him to set the statute in ■motion against the true owner.

If the defendant has entered upon the land under the plaintiff's title, he is, of course, cognizant of rthe fact; but if he has not, the title under which he claims, is a matter of secondary importance to the plaintiff, for he can only call it in question on the strength of his own title. When the plaintiff has acquiesced, in an open and visible exclusive possession by a party who did not enter under, and has not recognized his title, he cannot be heard to complain, that the occupant entered under a better or different character of title than he had supposed.

The legal effect and extent of an adverse possession depends of course upon the character of title by which it is sought to be sustained. But in presumption of law, an actual possession must be regarded as adverse to all other titles or claims than that of the possessor, or such as have been recognized by him. And whenever a party permits such possession to be maintained, he does so at his peril.

Whether the possession of Bowman was adverse to the plaintiff's title, was a question of fact; and as there was direct testimony that was received without objection, tending to prove the execution of the lease to Bowman on the day it bore date, and a continuous subsequent possession under it, we could not disturb the judgment even if the testimony relied upon by the plaintiff was, of itself, sufficient to have induced a different conclusion. This, however, is evidently not the case.

The only evidence relied upon by the plaintiff, to negative the adverse character of the defendant’s possession subsequent to the date of the lease of May 20th, 1851, was the subsequent declaration—if as is probable the witness was not mistaken in the date—of the tenant Bowman that he did not know who owned the land, but wished that the witness would enquire into the matter, and inform him to whom it belonged. But certainly such declarations as these will not destroy the effect of his adverse possession of the land under the lease from Jones.

He could not have done this, it seems, even by attorning to the plaintiff after the execution of the lease. (Pleak v. Chambers, 5 Dana, 60.) We have taken no notice of the lease dated in 1846, though executed in fact it appears also May 20th, 1851; for while it manifestly could confer no rights upon either of the defendants, but justly subjected them to animadversion, and their defences to stricter scrutiny, it did not affect the judgment which was properly rendered by the court, or the other facts that" were before it. The judgment is affirmed. Judgment affirmed.