Hugh M. Johnson v. W. M. Simpson et al., 22 Tex. Civ. App. 290

FISHER, Chief Justice. —This is an action of trespass to try title by appellant Johnson against the appellees. The trial court found in favor of the appellees by virtue of actual adverse possession of the land in controversy under the ten years statute of limitation. The history of the case, together with a statement of appellant’s title, is fully set out in the opinion of this court on the former appeal of the case, reported in 44 Southwestern Reporter, 1076.

The title of the plaintiff there stated we find to be established by the evidence in the record before us; and in this connection we take occasion to say, in rejdv to appellee’s cross-assignment of error, that we think the action of the court on the identity of Leband with Leland was correct. We find, as facts shown by the record, that one C. M. Hubby sold the land in controversy, which is 320 acres, in 1858, to J. C. Johnson, who immediately took possession, and lived upon the land and built a house upon it, and cultivated a small portion of the tract; and that he continued in possession until he sold to J. S.

Sears, in 1860, who took .possession of it; and that he continued in actual occupancy of the house by tenants, and that he also put in cultivation and inclosed about five acres of the land, and used the same until 1866, when he sold to William Fellows, who then took possession and remained in actual occupancy about a year, when the same was left in possession of his tenants, who continued in possession until the land was sold at bankrupt sale of the estate of William Fellows to William Bonner, in the early 70’s.

Bonner then took and held actual possession by tenants, which has been continued and held in actual possession by the tenants of the real plaintiff herein, Lelia Dyer, who holds as an heir of Bonner, up to the filing of this action. The facts on the question of possession, as stated, are similar to the facts found by this court when the case was formerly before us, which are fully stated in the opinion of the Supreme Court in 92 Texas, 159.

That court held that the facts were sufficient to entitle appellees to the benefit of the ten years statute of limitation, and as the survey in question was only 320 acres, it could all be recovered by virtue of the actual adverse possession of a part of it. This for the reason that the ten years possession had accrued prior to the adoption of the Revised Statutes of 1879, when the law previous to that time conferred upon one in actual possession 640 acres.

The facts in the record clearly show that commencing from the time that Johnson took possession in 1858, the land in controversy has been in actual adverse possession of Johnson and those that claim under him up to the filing of suit by appellant, and, not computing the time when the statutes were suspended, there were more than ten years of such possession prior to the change in the law in 1879. When that law went into effect, the title was complete by limitation, independent of the deed offered in evidence connecting and tracing possession back to and under Johnson down to the appellees.

There is paroi evidence establishing the privity of possession from Johnson down to the appellee Mrs. Dyer, the real owner of the land, who holds as heir of William Bonner. Therefore, if the court, for the reasons stated by appellant, committed error, which question it is not necessary to decide, in admitting deeds from Johnson down to Bonner conveying the land in question, the judgment nevertheless can be maintained upon the paroi evidence establishing the facts found by us, connecting possession by Bonner and those under whom he claims with the possession of Johnson.

It has been held- by our Supreme Court in the case of Bledsoe v. Cains, 10 Texas, 455, and Hickman v. Withers, 83 Texas, 578, that a pre-emption or homestead claim in its inchoate state, that is, before the expiration of the three years occupancy required by law which was necessary to perfect title, could be transferred h)' a paroi sale.

If in such case a paroi transfer is recognized as valid as sufficient to establish a privitjr of title between the original occupant and his vendee, we see no reason why a like rule should not apply when the purpose is simply to establish a privity of possession between occupants under the ten years statute, when such paroi sale occurs before the ten years possessi on had matured into a title to the land. The sale to Bonner, under whom the appellee Mrs. Dyer claims by inheritance, accrued, according to the evidence of the witnesses, in the early VO’s. Therefore the title had not matured.

It is true that for all the time which we hold that the statute was running prior to 1879, Johnson and those claiming possession under him did not have in actual use and cultivation the entire 320 acres, but only a small part thereof; but this would not affect the right of the appellees to recover the entire 320 acres, because it being a quantity less than they were entitled to recover under the ten years statute by virtue of their naked adverse possession, and actual possession of a part of the survey would entitle them to claim to the extent of the number of acres conferred upon the possessor under the ten years statute.

Pearson v. Boyd, 62 Texas, 544; Craig v. Cartwright, 65 Texas, 422. These views, together with the facts found, are decisive of the case; therefore it is not necessary that we should rule upon the questions raised by the assignments of errors. Affirmed. The judgment is affirmed. ON MOTION EOR REHEARING. FISHER, Chief Justice. —The trial court found that Sears was in possession of the premises for a part of the time by tenants. In our opinion, we followed this finding of the court.

If the trial court and we were in error in this conclusion, it could not affect the judgment of the trial court and this court, because there is evidence in the record which shows that Sears remained in possession until he sold the land in controversy to Fellows. With this conclusion, we adhere to the former disposition made of the case. We have given careful consideration to the other questions presented in the motion for rehearing, and find no reversible error. « Motion overruled. . Writ of error refused.