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Tex.)

WICHITA VALLEY RY. CO. v. SOMERVILLE

675

which appellant probably sought an instruct- district. Bonds had been issued for the dised verdict.

trict, and taxes levied to pay the interest [3] The second assignment asserts error in and sinking fund. Under these assignments refusing special charge No. 2, to find for the question is raised as to the correctness of plaintiff an undivided half interest in the the instruction that the payment of city taxes land sued for, It asserted that, if Mrs. and special taxes was not necessary under the Somerville did not accept under the will, her five-year statute. Under article 5674, Verclaim was for an undivided half interest, non's Sayles' Civil Statutes, suit must be and, as the son was in possession as plain- brought in five years next after the cause of tiff's tenant, appellee could get title to no action accrues against a party claiming under more than she claimed. If Mrs. Somerville a deed duly recorded, having peaceable and was in possession of the land, claiming it as adverse possession, cultivating, using, or enher own for the period of time required to joying the same, and paying taxes thereon. vest her with title, then she would recover It has been repeatedly held by the courts of the whole of the land, and not merely an this state that all incidents of the statute undivided interest. At the time of the hus- must concur and be continued for a period of band's death no title by limitation had vest-five years. A failure to pay the taxes for five ed, but was an inchoate right in the wife. consecutive years had been held not sufficient If she remained in peaceable, adverse pos- to prescribe under the statute. Converse v. session, cultivating, using, and enjoying the same under a claim of title, the required pe- Ringer, 6 Tex. Civ. App. 51, 24 S. W. 705; Club riod, it would vest in her title to the land in Land Co. v. Wall, 99 Tex. 591, 91 S. W.778, 122 question. Gafford v. Foster, 36 Tex. Civ. Am. St. Rep. 666. The statute does not say App. 56, 81 S. W. 63.

that all the taxes shall be paid ; neither does [4] By the third assignment appellant com

it say that the payment of part of the taxes plains of the following charge of the court to will be sufficient; but the language is, “paying the jury:

taxes thereon." It will be noted the statute “You are instructed that, in order to claim does not say that the taxes shall be paid for land by limitation under the five-year statute, five consecutive years, or that taxes shall conit is not necessary that the city or any special cur with the time of the recording of the deed school taxes be paid by the party claiming the same."

or with the adverse possession; but it is clearThe fourth assignment of error urges that ly implied from the wording of the statute. the court was in error in authorizing the jury "Paying the taxes thereon” is not met by to find under the five-year statute of limita- paying part of the taxes thereon. Taxes tion in favor of Mrs. Somerville. The trial thereon include all the taxes. City taxes and court also submitted to the jury the ten-year school taxes are taxes thereon, recognized by statute of limitation. The jury returned both the Constitution and laws of this state. a general verdict in favor of Mrs. Somer- It is suggested the purpose of paying taxes is ville. The jury were also instructed by the to give notice to the owner. We doubt if this trial court that in considering the five and is correct. Possession of the land and the ten year statutes they would exclude one recordation of the deed answers that puryear following the death of A. J. Somerville, pose. If, however, that is its purpose, the the husband of appellee. The land was con- laws and the Constitution recognize two sepveyed to A. J. Somerville March 14, 1901, arate assessors and collectors in county and and the deed therefor was filed for record on city. If an owner should go to the city rolls that date. He went into possession of the and find that taxes on his property are not property April 2, 1901, and died in November. paid by any other, would he have the right 1903. His will was probated February, 1904, to rest on the fact that it was not adversely and the suit was instituted against his son held in possession under a deed duly regisNovember 4, 1911. The executor named in tered? The statute says such holder shall his will never qualified as such, and no inven- pay taxes. The city rolls notify the owner tory of the property was filed. C. F. Som- such claimant is not doing so. These taxes erville testified that he paid the taxes from are a lien on the land in the city. We believe 1902 to 1908, inclusive, at the courthouse, and good faith upon the part of the adverse claimthat the taxes were paid by him to the city ant requires that he pay off this debt against for the same years. On cross-examination, the land and relieve it of the lien. In jurishowever, he testified he would not swear posi- dictions where there is no statute of limitatively he paid them every year; he had no tions prescribing the payment of taxes as a receipts and was not positive and would not prerequisite thereto the payment of taxes by swear he paid the city taxes for 1904 or 1905. the adverse claimant is admissible to show The city tax collector testified the city taxes adverse holding. Wren v. Parker, 57 Conn. for the years 1904 and 1905 were delinquent 529, 18 Atl. 790, 6 L. R. A. 80, 14 Am. St. Rep. and unpaid, and for the years 1904, 1905, 127. However, in Draper v. Shoot, 25 Mo. 197, 1906, and 1907 the taxes were assessed for 69 Am. Dec. 462, it is stated payment of taxes the independent school district and were not by a stranger tends to show knowledge of paid. Wichita Falls is shown to be an incor- that fact by the true owner. We think unporated city and to be an independent school der the statute that the claimant should show school tax; otherwise he is holding property , termine from the record upon which statute which he permits to become incumbered, and the jury found. Adkins v. Galbraith, 10 Tex. it is a circumstance tending to show he does Civ. App. 175, 30 S. W. 291; Thompson v. not claim it adversely. Such a failure does Chaffee, 39 Tex. Civ. App. 567, 89 S. W. not meet the full requirements of the stat- 285–287. It must appear that an erroneous ute, which all the courts hold is a necessary charge calculated to mislead the jury did not prerequisite to prescribe under the statute. have that effect, or the judgment would be Dunn v. Taylor, 102 Tex. 80, 113 S. W. 265. reversed. “In such case the duty does not In Dutton v. Thompson, 85 Tex. 115, 19 S. devolve upon the party complaining to show W. 1026, Judge Stayton said it was not very that he was thereby injured, but upon him clear why the Legislature made the payment in whose favor the verdict was returned to of taxes necessary to sustain the defense of show that the complaining party was not five years. It may have been to require evi- prejudiced by the error." Railway Co. v. dence of good faith by the occupant to secure Johnson, 91 Tex, 569, 44 S. W. 1067. If rule the state and its municipal subdivisions in 62a (149 S. W. x) has modified the above, it the payment of taxes due thereon, or to give is, as we conceive it, in placing the duty on further notice of the adverse claim. It will the appellate court to determine whether be noted by the expression of Justice Stayton such error amounted to such a denial of the that, in his mind, at that time the statute re-right of appellant as was reasonably calcuquired the payment of taxes due municipal lated to, and probably did, cause the rendisubdivisions. If it is required for the pur- tion of an improper judgment. Clearly, appose of additional notice, each tax roll, pellant's rights required that the law applicawhether state, county, city, or independent ble to the five-year statute should be correctschool district, must each show the payment i ly given, and to tell the jury that the taxes in order to give such notice; for each are for five consecutive years was not required required to be kept and the payment on each in order to prescribe under the five-year statis notice of an adverse claim. We have been ute was a denial of appellant's right to have unable to find any case in this state involving the jury told these taxes must be paid before the question here under construction. Coun- a title would vest under the five-year statsel for both parties state that they are un- ute. Under this charge it is probable the able to find any case in this state. They jury did not investigate the question of adcite us to the cases of Allen v. Allen, 159 verse possession longer than the period of Cal. 197, 113 Pac. 160 ; Railway Co. v. Pyle, five years. It was reasonably calculated to 19 Idaho, 3, 112 Pac. 678; Green v. Christie, induce the jury to rest content with five 4 Idaho, 438, 40 Pac. 56; Coonradt v. Itill, years, and not to consider the subsequent 79 Cal. 587, 21 Pac. 1099. These cases, in so years of possession or the acts of the parties far as they discuss the question, hold that all with relation thereto, and thereby probably the taxes, state and special, must be paid, caused the rendition of an improper verdict. but we gather from the opinion of the courts If we are correct in holding the court erthis holding is based on the statute which so roneously stated the law in his charge, then, prescribes. However, as we interpret our as we believe, the only justification we would statute, it clearly implies the payment of all have in holding the error immaterial would taxes. The taxes to be paid are not speci- be to find that appellee, under the facts, was fied, and the requirement for payment is not entitled to a peremptory instruction for a limited to any particular tax. State, county, verdict under the ten-year statute. The facts municipal, and school taxes are each a charge in this case are peculiar to it, and more so on the property-made so by the Constitu- than is usual. The evidence, aside from the tion and the laws. This must necessarily appellee's testimony, tends to support an elechave been known to the Legislature, and, hav- tion by appellee under the will, and would ing failed to limit the tax to be paid, they support a finding that she was living with must have intended all taxes which are a her son on the property as his. This, howcharge upon the land. We believe the court ever, appellee contends, is rebutted by the was in error in giving the charge that it was verdict of the jury. This question was not unnecessary to show the payment of city submitted to the jury by the court by a diand school taxes.

rect charge on the question, but was doubt[5-9] The appellee suggests that, if the trial less included in the general charge on adcourt was in error in giving the charge, it verse possession. The bearing the election was not material, and should not reverse the would have on the question of limitation, case. It is suggested the facts under the however, may not have been clearly perceivcharge of the court would have authorized ed by the jury; hence not given that conthe verdict of the jury under the ten-year sideration it deserved. There is no testistatute. The jury could have properly, under mony that the son was the tenant of appelthe charge of the court, based their verdict lee. His possession, management, and conon the five-year statute. If it was apparent trol of the property is consistent with his to us that the verdict was rendered on the claim of title asserted in his answer and his ten-year statute, and not the five-year stat- declaration while in possession. If he was ute, we might be authorized to hold the not so in possession, then he could have been

Tex.)

WICHITA VALLEY RY. CO. v. SOMERVILLE

677

are

The issue is raised by the evidence whether session for ten years would not, under such he was in possession of the property under circumstances, be established in appellee. a claim of title. If he was so in possession, The facts also raised the issue of joint posclaiming title, it would be adverse to appel- session under a claim of title in the fee by lee. After the five-year period, and before both the mother and son. The son, by leasthe expiration of the ten-year, he entered ing the land from appellee, held the possesinto a written lease contract for the land sion adverse to his mother for appellant, and from appellant. He paid either two or three she could not be said to be in peaceable adyears' rental to appellant for the land, and verse possession of the land in question. after he refused to pay the rent he was Neither the mother nor the son had the title notified by the agent of appellant to remove to the land in question. There is evidence his fence from around'the land. This he did, in the record tending to show that neither and moved, if not all, at least a part, back held and used exclusively the possession of on his land. The evidence suggests that he the land and neither was the tenant of the sought advice, and thereafter replaced the other. Would not the acknowledgment by fence to its original position; whereupon ap- one of the joint possessors of title to the land pellant instituted this suit for the land. Ap-in appellant and taking possession as the tenpellee testifies she knew nothing of the lease ant of appellant destroy the peaceable adand did not consent to it. Aside from her verse possession of the other? If the possestestimony, there circumstances from sion of the land was in the son, under a lease which a jury might infer she did know of from appellant, this possession, it occurs to it, and, if she did not consent to it, she nev- us, would be adverse to appellee. Wiley v. ertheless acquiesced. Again, the facts in this Bargman, 90 S. W. 1116. Unless there was case suggest that C. F. Somerville was in such fiduciary relation existing between appossession of the land, holding or claiming it pellee and son, such as would preclude an adas his own, and that his mother, appellee, verse holding by the son, we think appellant was living with him thereon, and not he would not be barred by the ten-year statute. with her. If this shall be found to be true, Mere possession will be presumed to be in we see no reason why the principle announc-subordination to the title of the true owner. ed in the case of Hurley v. Lockett, 72 Tex. The law presumes the true owner is in pos262, 12 S. W. 212, should not apply. In that session until adverse possession is proved to case the controversy was over a strip of land begin, and when two persons are in mixed growing out of the location of the true possession of the same land, one by title, and boundary between two surveys. Hurley own- the other by wrong, the law considers the ed one of the surveys, and M. S. Lockett own- one who has title as in possession to the exed the other. Lockett sought to establish tent of his rights, so as to preclude the other her right to recover under the ten-year stat- from taking advantage of the statute of limiute. Testimony was offered and rejected to tation. 2 Corpus Juris, Adverse Possession, the effect that, while Reuben and Charles 587, p. 264; Satterwhite v. Rosser, 61 Tex, Lockett were living on the land of M. S. 166; Holland v. Nance, 102 Tex, 177, 114 S. Lockett, they claimed that they were the w. 346. As heretofore suggested, the eviowners of the place, and they claimed at that dence tends to show that C. F. Somerville time the boundary was where Hurley con- was claiming title to the lots and was in postended, and did not during the year hold the session, asserting such ownership in himstrip of land in controversy adversely to self, and was not in possession under his Hurley. The court held in that case this mother. If the mother was claiming ownertestimony should have been admitted; that ship, and was in possession, she and her son it was not conclusively shown that Reuben were holding a mixed or joint possession, unand Charles were tenants of M. S. Lockett. der different claims of title. Up to five years There is no contention in this case that c. it may be the possession was held adverse to F. Somerville, when he gave the lease on this appellant by both mother and son, but by a land, was in possession of the land as the joint possession, under adverse claims of titenant of appellee. He was there claiming title as to each other. After that period, and tle or simply living with his mother as a before the expiration of ten years, the son servant, or acting for her as agent. He man acknowledged the title of the true owner and aged the hotel, rented it, and mortgaged it leased the land and paid rent for two or as his own, collected the rents, and in a three years. Appellant, then by tenant, enmeasure appropriated the proceeds. He had tered into possession of the land for that pehis father's will probated, and paid the lega- riod and was thus holding the possession. cies provided for in the will to the heirs. Appellee, under such circumstances, it occurs The furniture was retained in the hotel, to us, would not during that time be in which was given to appellee by the will, in “peaceable, adverse possession.” If the jury lieu of her interest in the land. These facts, should find the mother was in possession; we think, clearly raise the issue of posses- claiming under her community and homesion by the son under his claim of title, and, stead rights, and the son at the time was in if he was so, then he relinquished it by leas- possession with her, claiming title under the

session. Now, suppose the son had purchas-, title, and which was sufficient to afford aped the land from the true owner before limi-pellant notice of that fact, then we might tation was complete, could the mother recov- sustain appellee's contention. We think aper upon a title resting alone upon adverse pellant, under the evidence in this case, may possession for ten years? Did she have ex- well have understood she was not in possesclusive, peaceable, adverse possession for sion, asserting a claim of exclusive ownerthat period? Wherein is the difference be- ship. Of course, if the facts show that aptween a purchase and a lease? The acts of pellee was so in possession, and appellant the son could not have affected the rights or knew that fact, or if the facts show that she title which appellee may have had; yet she was in possession and so occupied the land, had none, but must rely 'upon peaceable, ad- and it was of such a character as to unmisverse possession to acquire one by limitation. takably show she was asserting under such When the son changed his attitude towards possession an exclusive ownership, then apthe true owner, that possession which they pellee would be entitled to recover. The bur had theretofore held adverse to the owner den is on the appellee in this case to prove ceased to be adverse. “This becomes obvi- such possession under claim of title. ous when it is reflected that, had he complet- The trial court therefore could not have ed his purchase and obtained plaintiff's ti- instructed a verdict for appellee under the tle, his possession would have been a rightful ten-year statute, and, if the charge of the one held in his own right, and there could court was error, as held by us, on the fivehave been no holding adverse to his by other year the error was material. members of the family.” Burrell v. Adams,

[10] The fifth and sixth assignments will 104 Tex, 183, 135 S. W. 1156. In other be overruled. The question of election unwords, he would be the true owner in pos- der the will was one of fact. If appellee session, and the wrongful possessor could not accepted under the will, she had no right prevail under limitation. The rightful title to the land, and, in so far as she was conwould draw to it the seisin. “Adverse pos- cerned, the act of C. F. Somerville in leassession is an actual and visible appropria ing the land did not matter, if she was claimtion of the land, commenced and continued ing the land. If appellant desired the subunder a claim of right, inconsistent with and mission of the question of her election under hostile to the claim of another."

Article the will, it should have requested a charge 5681, R. C. S. In this state, as we under- to that effect. On the hypothesis of appelstand the rule, it is not necessary to show lee's theory urged by her, the charges of the actual notice of such possession to the true court objected to were correct. If appellant owner, but it must be actual, continuous, visi- desired its theory presented, a proper charge ble, notorious, distinct, and hostile. It is

should have been requested presenting its stated by the courts that such holding is theory. On the question of election we refer necessary so “that the adverse claimant may to what has been said in disposing of the be thus notified that his title is disputed.” first assignment and the authorities cited Gillespie v. Jones, 26 Tex. 346; Richards v. thereunder, and we also cite the additional Smith, 67 Tex. 610, 4 S. W. 571; Cyc. vol. 1, cases of Carroll v. Carroll, 20 Tex. 731; Moss p. 1032 (b).

v. Helsley, 60 Tex. 426. In Richards v. Smith, supra, it is said:

For the reasons above suggested, we over“When the acts done upon a tract of land are such as to give unequivocal notice to all per-rule the seventh assignment. sons of a claim to it adverse to the claim of [11] The appellant requested the followall others, and this is accompanied by an actu- ing charge: al possession, exclusive in its character, then limitation will run in favor of the person so

"You are charged that, if you believe from the asserting adverse claim, and enjoying an ex- evidence that from 1904 to 1911 C. F. Somerclusive possession from the time such exclusive ville had actual control and management of the occupancy began, whether the land be inclosed property in controversy and was authorized by or not.”

his mother to control and manage her property,

and that in leasing the property in controversy Again, it is said in Mhoon v. Cain, 77 Tex. from plaintiff he was acting within the scope 316, 14 S. W. 24, in order for possession to of the authority granted by his mother, you be adverse to the true owner, it "must be will find for the plaintiff as against the de‘of such a character as to indicate unmistak fendant and intervener.” ably an assertion of a claim of exclusive This court is unanimous in the opinion ownership in the occupant.'” Also see Ben- that the trial court was not in error in der v. Brooks, 103 Tex. 329, 127 S. W. 168, refusing the above charge, and we have deAnn. Cas. 1913A, 559.

cided not to express the views of the maCan the evidence in this case be said to jority with reference to the principles sought conclusively show "unmistakably an asser- to be presented by the charge, and withdraw tion of claim of exclusive ownership’ in ap- our opinion with reference to the same, herepellee? She was an occupant thereon, and tofore filed in this case. so was the son. If the evidence conclusively [12] The ninth assignment will be overshowed that the possession was her posses- ruled, for the reason particularly that under sion, and not the son's, and that she was ex. the facts submitted the jury were instructed Tex.)

LEVY v. DUNKEN REALTY CO.

679

in refusing to render a verdict for him, and finding for the intervener, practically found LEVY et al. v. DUNKEN REALTY CO. * against C. F. Somerville, and the refusal of

(No. 5488.) the charge became immaterial, if otherwise (Court of Civil Appeals of Texas. Austin. correct, which we do not now decide.

Oct. 20, 1915.) The tenth assignment is overruled. We

1. BROKERS Om 82-ACTIONS FOR COMMISSIONS think the charge was correctly refused. -COMPLAINT-ALLEGATIONS AS TO ABILITY

The eleventh assignment is overruled. AND WILLINGNESS. There was some evidence as to the payment

In a broker's action for commissions for of the taxes for the year 1903, and it would between defendants and C., which provided that

procuring a contract for the exchange of lands have been improper to charge the jury that if either party failed to perform, such party there was none. If the charge had requested should forfeit and pay to the other party a specithe issue to be submitted as one of fact to be that C. was at all times ready, able, and willing

fied sum as liquidated damages, an allegation found by the jury, it should have been given to carry out the contract and take defendants under the testimony in the record.

property upon the terms agreed upon, as eviFor the reasons given, the judgment will denced by such contract, was more than an alle be reversed and the cause remanded for an- take the property or pay the stipulated penalty,

gation that he was ready, able, and willing to other trial.

and was a specific and distinct allegation of his The motion for rehearing will therefore be ability and willingness to exchange the property overruled, but, as we have given a different upon the terms agreed upon,

[Ed. Note.-For other cases, see Brokers, Cent. reason for reversing the case to that given Dig. $$ 101-103; Dec. Dig. Omw82.] in the former opinion, appellee will be per- 2. TRIAL em 343 — VERDICT CONSTRUCTION mitted to file a motion for rehearing on this

AND OPERATION. opinion.

a broker's action for commissions,

where the testimony on an issue as to plaintiff's On Motion for Rehearing.

breach of a contract to procure a loan for de

fendants with which to clear up an incumIn some measure appellee's criticism of brance was conflicting, and such issue was subour use of joint possession in the original mitted to the jury, a verdict for plaintiff nec

essarily decided it against defendant. opinion, is correct, as there, of course, can

[Ed. Note.-For other cases, see Trial, Cent. be but one possession. We might more prop- Dig. 88 809–812; Dec. Dig. Om343.] erly have expressed our meaning by saying 3. BROKERS C 61-RIGHT TO COMMISSIONS"occupancy." We are well aware of the FAILURE OF NEGOTIATIONS. class of cases in which the question of mixed

Though brokers with whom defendants listpossession has found expression. This is an knowledge of the existence of incumbrances on anomalous case. The true owner of this the property, could not themselves have made a land found two occupants on it. One had or contract binding defendants to sell or exchange claimed title to it, as would appear from their property otherwise than subject to the

incumbrances, where defendants made a conthe probate records by will, and before ten tract to exchange lands with a party procured years had elapsed he acknowledged the ti- by the brokers which bound them to remove such tle of appellant and leased the land as its incumbrances, the brokers were entitled to their tenant. Thereafter the true owner is in pos- of the incumbrances, and though defendants' session by tenant. The appellee was in pos- failure to comply with the contract resulted from session, or rather living in the house on an- their failure to remove such incumbrances. other portion of the lot. Why should not the [Ed. Note.-For other cases, see Brokers, rule of mixed possession apply in this kind Cent. Dig. 88 77, 78, 92, 93; Dec. Dig. Om 61.] of a case? We believe it should. Again, the 4. BROKERS 82-ACTIONS FOR COMMISSIONS appellee, under the law, as we conceive it,

-COMPLAINT-ALLEGATIONS AS TO ABILITY

AND WILLINGNESS. must have had actual, open, visible, exclusive, In a broker's action for commissions for distinct, and hostile possession. It must have procuring a contract for the exchange of lands been such as would give notice to the owner between defendants and C., plaintiff's allegation that its title is disputed. This joint OC

that C. was ready, able, and willing to carry

out the contract was equivalent to an allegation cupancy by the mother and son, especially that he had title to the property he contracted after the lease by the son, does not by the to exchange, especially where it otherwise aprecord, we believe, conclusively show that ap- peared that the failure to carry out the conpellee had such exclusive hostile possession. incumbrances from their property.

tract was due to defendants' failure to remove The fact that the jury may have found such

[Ed. Note.-For other cases, see Brokers, hostile possession was had for five years Cent. Dig. 88 101-103; Dec. Dig. Om 82.] might be warranted under the facts; for 5. PLEADING 129_FAILURE TO DENY-ADneither mother nor son was occupying the MISSIONS-ACTIONS FOR COMMISSIONS-Eviland as the tenant of appellant up to that

DENCE.

Where, in a broker's action for commissions time. Thereafter the jury may have well for procuring a contract for the exchange of concluded appellee did not have actual, ex-lands between defendants and C., defendants' clusive, and hostile possession such as to answer alleged that the trade was not consumgive notice to appellant of an adverse claim mated because of incumbrances on their proper

ty, and that by reason of their failure to remove of title to it.

such incumbrances, they became liable to C. The motion will be overruled.

for liquidated damages, their brief on appeal

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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