J. T. Thomson v. Lena Weisman et al., 98 Tex. 170

BROWN, Associate Justice. On August 33, 1901, plaintiffs instituted. this suit in the form of trespass to try title in the District Court of Tom Green County against J. T. Thomson. The plaintiffs in this suit are the same as the plaintiffs in a former suit hereafter described, or are the devisees and heirs of some of those plaintiffs, now deceased. The suit last referred to was instituted by the heirs of Abraham Young in the District Court of Tom Green County against J. T.

Thomson and Joseph Spence to recover the same land now sought to be recovered in this suit, and on the 33d of November, 1888, judgment was rendered in that cause in favor of the plaintiffs against the defendants, which judgment has not been set aside nor reversed. ' The defendant, Thomson, pleaded in this case not guilty, and in proper form set up as a defense to this action the statute of limitation of five years and of ten years. Plaintiffs deraigned title to Alexander Pope and it was agreed that Pope’s title was in Abraham Young, the ancestor of plaintiffs.

The defendant, Thomson, introduced (1) a quitclaim deed from James E. Brown to Joseph Spence and J. T. Thomson, dated in 1885, conveying the land sued for in this case.

(2) Quitclaim deed from Chas. T. Potter to George B. Jackson, dated October 20, 1894, describing the land in controversy and duly recorded in the proper county on February 9, 1895.

(3) Special warranty deed from George B. Jackson to J. F. Williams for the same land, dated October 29, 1897, recorded in the proper county_ on November 1, 1897.

(4) A deed from J. F. Williams to J. T. Thomson, dated February 20, 1900, conveying the land and duly recorded in the proper county February 23, 1900. The payment of taxes upon the land was proved to have been made to the State for the years 1895 to and including 1897 in the name of George B. Jackson, and for the years 1898 and 1899 in the name of J. F. Williams, and for the years 1900 and 1901 in the name of J. T. Thomson. Defendant proved the payment of taxes for each year by producing a receipt from the tax collector of the county in which the land was situated.

Plaintiffs also proved payment of the taxes from 1895 to 1901 inclusive, and they paid each year before defendant paid. The undisputed evidence shows that the land in controversy was embraced within the inclosure of a pasture claimed by Thomson and Spence in 1885 and at the time the suit was brought in 1888. No question is made in this case as to the sufficiency of the inclosure to sustain the statute of limitations, and we will therefore not enter into any details as to that matter. Thomson and Spence had possession of the pasture from 1885 up to the time of the entry of judgment in 1888.

No writ of possession was issued upon the judgment, and no possession was ever given to the plaintiffs of the land under that judgment, but Thomson and Spence continued in the possession of the land until Thomson bought Spence’s interest, after which Thomson occupied the land until the 20th of October, 1894, when Thomson took a lease from Jackson, acknowledging his title to the land, and continued in possession and control of the land, claiming it under Jackson’s title, until October 29, 1897, when the land was conveyed by Jackson to Williams; from which time Thomson held possession in his own right, claiming under the deed to Williams.

Thomson’s testimony shows that at his instance the conveyance was made by Jackson to Williams, and that he, Thomson, furnished the money with which Williams purchased the land, and had the deed made in Williams’ name to be held for him, Thomson. There is much evidence concerning this matter of possession and the change of title from one person to another, but we believe that this statement of the facts will be sufficient to understand the questions which are presented in this •case.

At -the trial in the District 'Court judgment was rendered for Thomson, which was reversed by the Court of Civil Appeals and judgment rendered for defendants in error. The honorable Court of Civil Appeals held that when Jackson conveyed the land to Williams Thomson’s possession was broken, although he continued in the possession and received Jackson’s title by virtue of the deed made to Williams. This ruling is based-upon the proposition that one in possession of land, claiming it as his own under a deed made for his benefit to a third person, can not acquire title by limitation under the statute of five years.

In so holding, that honorable court erred, for which its judgment must be reversed. The statute is in the following language: “Every suit to be instituted to recover real estate as against any person having peaceable adverse possession thereof, cultivating, using or enjoying the same, and paying taxes thereon, if any, and claiming under a deed or deeds duly registered, shall be instituted within five years,” etc. It will be observed that the statute does not prescribe that the person in possession shall claim under a deed in his own name.

A tenant claims land under the deed to his landlord and the heir claims under the deed to his ancestor, yet the possession of either tenant or heir under such a deed will support a plea of five years limitation. Thomson claimed the land for himself under deeds duly registered and was within the terms of our statute. Possession gives notice of a right in the occupant, the nature of which may be ascertained by inquiry of him.

If inquiry had been made of Thomson as to the right by which he held possession he would no doubt have referred his right to the deed from Jackson to Williams, because it was under that deed he claimed title to the land. If the plaintiffs had observed the possession of Thomson while he held as tenant under Jackson they would not, without inquiry, have known more as to the title he held under than they knew when they saw him holding for himself under the deed to Williams.

We can see no reason why the person in whom the title is may not as well hold the possession under the deed which conveys the title to his trustee as that a tenant, or an heir, should hold under a deed to his landlord or to his ancestor. If Williams, the trustee, had gone into actual possession, that possession would have inured to the benefit of Thomson, the beneficiary; for a stronger reason the possession of the latter would sustain his own claim.

The defendants in error insist that after the judgment in their favor was rendered against Thomson and Spence in 1888, the latter became the tenants at sufferance of plaintiffs in that judgment, and that, until notice of a repudiation of that relation, Thomson could not acquire adverse possession so as to constitute title against them by limitation. We find these cases which sustain that position: Root v. Woolworth, 150 U. S., 401; Hintrager v. Smith, 89 Iowa, 270. But in the case of Pendleton v. McMains, 8 Texas Ct. Rep., 52, the Court of Civil Appeals of the Fourth District held the contrary doctrine.

Judge Fly for the court said: “More than thirteen years had elapsed after the rendition of the judgment before this suit was instituted, and during all those years defendants in error had been in,possession of the land and claiming title to it against the world.

There is no peculiar sacredness in a title to land obtained through a judgment that lifts it out of the scope and purview of statutes of limitation, and if the possession be adverse for ten years, whether it be by the defendant in the judgment or anyone else, it will perfect a title.” Application for writ of error was made in that •case to this court and was denied. The point at issue was presented by the application.

This court has held that a vendor, by executed conveyance, who remains in possession of the land, claiming it as his own, without notice other than possession, may acquire against his vendee a title by limitation. Smith v. Montes, 11 Texas, 24; Harn v. Smith, 79 Texas, 310; Texas & P. Ry. Co. v. Maynard, 51 S. W. Rep., 255; Knight v. Knight, 178 Ill., 553; Stearns v. Henderson, 9 Cush., 497; Murray v. Hagle, 9 So. Rep., 368.

Plaintiffs in error also contend that they having paid taxes on the land for the several years from 1895 to 1901 inclusive, prior to the time when Thomson paid taxes for the same years, the latter could not by paying taxes thereon acquire title by virtue of his possession for five years.

We are of opinion that while in possession of the land Thomson had the right to render it for taxation in the name of the person for whom he was holding, or in his own right when holding for himself, and thus to comply with the statutory requirement that he should pay taxes during the continuance of his possession, notwithstanding other persons claiming the same land might, at the same time, pay taxes thereon. Cavanaugh v. Jackson, 99 Cal., 672.

Neither was it necessary for Thomson to produce the rendition of the land for taxation by him, for the receipts of the tax collector of the county for the taxes of each year proved, prima facie, that the land had been rendered for taxes for that year, because such collector had no power to make the collection except upon the rendition of the land. It is also claimed by the defendants in error that the court erred in holding all of the plaintiffs barred by the statute of limitation, because some of them were married women from a time prior to the year 1895 and before Thomson’s possession of the land began.

As to those who survived until the suit was begun, the contention is not sound, but one of the married women, Mrs. Dopplemeyer, having died before limitation had run against her, the statute was suspended for one year, which had not expired when this suit was filed; therefore the District Court erred in entering judgment against the heirs of Mrs. Dopplemeyer upon the plea of limitation. It is ordered that the judgment of the Court of Civil Appeals be reversed and that the cause be remanded to the District Court. Reversed and remanded.