J. O. Johnson et al. v. Marie Schumacher et al., 72 Tex. 334

Collard, Judge. The first, second, and fifth assignments of error are too general to require consideration.

The third assignment of error is as follows: “The jury in finding value of improvements made by defendants * * * disregarded the facts proven in this, in giving to each defendant the same amount, $150, when the evidence showed the value of Johnson’s improvements to be $738, of Johnson and Parrisher $375, of McGill $325, and of Williams $250.” Defendants claimed under a tax deed and ten years possession under one Barber, who bought the land at tax sale in 1879, and who had had continued possession of both surveys from 1856 to 1883, when he sold to defendants their respective surveys.

Witness Barber testified that the improvements of the defendants were worth respectively the several amounts as set forth in the assignment of errors, and the judge who made up and filed the statement of facts (the parties disagreeing) simply says upon the subject of improvements: “Defendants each proved their occupancy continuous from their purchase from Barber, and their improvements the value as stated by the witness Barber; that they purchased and improved the land in good faith; that the improvements were permanent and valuable; and that the land was worth from one to one and one-half dollars per acre.” The charge of the court submitted the question and the value of improvements made in good faith by each of the defendants.

The verdict after finding in favor of Mrs. Schumacher proceeded to find as follows: “And we further agree to allow defendants $600 for their improvements, each $150.” It is a question of fact for the jury to determine whether improvements are made in good faith. The court should instruct the jury as to the meaning of good faith. The possessor must not only believe he has the superior title, but there must be reasonable grounds for the belief to amount to good faith in the sense in which the term is used in the statute.

The defendant may claim under a defective title, and there may be a superior title in another, but if he have reasonable grounds to believe his is the best title, is ignorant of the superior title, and has used proper care to ascertain the existence of the same, the jury may properly find he is a possessor in good faith and allow compensation for improvements made in such belief. Dorn v. Dunham, 24 Texas, 366; French v. Grenet, 57 Texas, 273; House v. Stone, 64 Texas, 678.

The verdict of the jury did not expressly find that defendants’ improvements were made in good faith, but the finding included the fact, as under the charge they could not allow compensation for improvements without first finding they were made in good faith. Four of the defendants only proved improvements and their value, viz., Johnson, McGill, Johnson and Parrisher, and Williams. It is evident the jury intended the finding to include these defendants only, as it was for a total of §600, distributed into four parts, §150 to each. The judgment of the court so construed the verdict.

The jury evidently disregarded the evidence in so distributing the amount into four equal portions. The evidence showed no such equality of rights. We can not apply the evidence to the verdict, it is simply impossible. , Appellants by the fourth assignment of error claim that if John Heher conveyed his undivided half of the land to Jackson before he conveyed to his sister by deed of gift, then the plaintiff could at most only recover her undivided half or 320 acres. This is not a correct principle.

One tenant in common can maintain the action of trespass to try title and recover against a trespasser or a mere wrong doer. This right is not affected by the Revised Statutes. Ney v. Mumme, 66 Texas, 268. If, however, the plaintiff show disabilities that will prevent the running of the statute of limitations against her, and the facts and character of possession are such as to create a bar by limitation against one having no disabilities, then she as tenant in common can not recover the interest of her cotenant not suing.

In such case the defendants in whose favor the bar is made to appear should recover to the extent of the rights so barred in their favor. Again, if the statute commenced running against John Neher in favor of defendants or him or them under whom they claim and the possession was continued, limitation would not be interrupted by the subsequent acquisition of Heher’s title by plaintiff, notwithstanding she was a feme covert. When the statute begins to run it is not stopped "by subsequent disabilities or by the disabilities of a person into whose hands the title may fall. Mrs.

Schumacher being a married woman during the whole of the time in which defendants and those under whom they claim had possession, she would be protected to the extent of her one-half undivided interest, but not to the other half, which may have become barred if the facts and •character of the possession amount to a bar. Allen v. Read, 66 Texas, 13; Stovall v. Carmichael, 52 Texas, 383.

Upon the filing of the disclaimer by Katy Williams the court should have given judgment in favor of plaintiff against her for the land, and unless she was shown to have been in possession at the time the suit was brought she should have had judgment for her costs. Wootters v. Hall, •67 Texas, 513. It does not appear that Katy Williams was in possession of the land •sued for, and judgment should be here rendered in favor of plaintiff for the land and in favor of Katy Williams for her costs and cost of appeal. As to other defendants the judgment of the court below should be reversed and remanded for a new trial.

Reversed and remanded. Adopted December 18, 1888.