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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 pesame under a claim of title, the required period, it would vest in her title to the land in question. Gafford v. Foster, 36 Tex. Civ. App. 56, 81 S. W. 63.

[4] By the third assignment appellant complains of the following charge of the court to the jury:

"You are instructed that, in order to claim land by limitation under the five-year statute, it is not necessary that the city or any special school taxes be paid by the party claiming the

same."

The fourth assignment of error urges that the court was in error in authorizing the jury to find under the five-year statute of limitation in favor of Mrs. Somerville. The trial

court also submitted to the jury the ten-year statute of limitation. The jury returned a general verdict in favor of Mrs. Somerville. The jury were also instructed by the trial court that in considering the five and ten year statutes they would exclude one year following the death of A. J. Somerville, the husband of appellee. The land was conveyed to A. J. Somerville March 14, 1901, and the deed therefor was filed for record on that date. He went into possession of the property April 2, 1901, and died in November. 1903. His will was probated February, 1904, and the suit was instituted against his son November 4, 1911. The executor named in his will never qualified as such, and no inventory of the property was filed. C. F. Somerville testified that he paid the taxes from 1902 to 1908, inclusive, at the courthouse, and that the taxes were paid by him to the city for the same years. On cross-examination, however, he testified he would not swear positively he paid them every year; he had no receipts and was not positive and would not swear he paid the city taxes for 1904 or 1905. The city tax collector testified the city taxes for the years 1904 and 1905 were delinquent and unpaid, and for the years 1904, 1905, 1906, and 1907 the taxes were assessed for the independent school district and were not paid. Wichita Falls is shown to be an incorporated city and to be an independent school

Ringer, 6 Tex. Civ. App. 51, 24 S. W. 705; Club
Land Co. v. Wall, 99 Tex. 591, 91 S. W. 778, 122
Am. St. Rep. 666. The statute does not say
that all the taxes shall be paid; neither does
it say that the payment of part of the taxes
will be sufficient; but the language is, "paying

taxes thereon." It will be noted the statute
does not say that the taxes shall be paid for
five consecutive years, or that taxes shall con-
cur with the time of the recording of the deed
or with the adverse possession; but it is clear-
ly implied from the wording of the statute.
"Paying the taxes thereon" is not met by
Taxes
paying part of the taxes thereon.
thereon include all the taxes. City taxes and
school taxes are taxes thereon, recognized by

both the Constitution and laws of this state.

It is suggested the purpose of paying taxes is to give notice to the owner. We doubt if this is correct. Possession of the land and the recordation of the deed answers that purpose. If, however, that is its purpose, the laws and the Constitution recognize two separate assessors and collectors in county and city. If an owner should go to the city rolls and find that taxes on his property are not paid by any other, would he have the right to rest on the fact that it was not adversely held in possession under a deed duly registered? The statute says such holder shall pay taxes. The city rolls notify the owner such claimant is not doing so. These taxes are a lien on the land in the city. We believe good faith upon the part of the adverse claimant requires that he pay off this debt against the land and relieve it of the lien. In jurisdictions where there is no statute of limitations prescribing the payment of taxes as a prerequisite thereto the payment of taxes by the adverse claimant is admissible to show adverse holding. Wren v. Parker, 57 Conn. 529, 18 Atl. 790, 6 L. R. A. 80, 14 Am. St. Rep. 127. However, in Draper v. Shoot, 25 Mo. 197, 69 Am. Dec. 462, it is stated payment of taxes by a stranger tends to show knowledge of that fact by the true owner. We think under the statute that the claimant should show

the jury found. Adkins v. Galbraith, 10 Tex. Civ. App. 175, 30 S. W. 291; Thompson v. Chaffee, 39 Tex. Civ. App. 567, 89 S. W. 285-287. It must appear that an erroneous charge calculated to mislead the jury did not have that effect, or the judgment would be reversed. "In such case the duty does not devolve upon the party complaining to show that he was thereby injured, but upon him in whose favor the verdict was returned to show that the complaining party was not prejudiced by the error." Railway Co. v. Johnson, 91 Tex. 569, 44 S. W. 1067. If rule 62a (149 S. W. x) has modified the above, it is, as we conceive it, in placing the duty on the appellate court to determine whether such error amounted to such a denial of the right of appellant as was reasonably calcu

school tax; otherwise he is holding property, termine from the record upon which statute which he permits to become incumbered, and it is a circumstance tending to show he does not claim it adversely. Such a failure does not meet the full requirements of the statute, which all the courts hold is a necessary prerequisite to prescribe under the statute. Dunn v. Taylor, 102 Tex. 80, 113 S. W. 265. In Dutton v. Thompson, 85 Tex. 115, 19 S. W. 1026, Judge Stayton said it was not very clear why the Legislature made the payment of taxes necessary to sustain the defense of five years. It may have been to require evidence of good faith by the occupant to secure the state and its municipal subdivisions in the payment of taxes due thereon, or to give further notice of the adverse claim. It will be noted by the expression of Justice Stayton that, in his mind, at that time the statute required the payment of taxes due municipal | lated to, and probably did, cause the rendisubdivisions. If it is required for the purpose of additional notice, each tax roll, whether state, county, city, or independent school district, must each show the payment in order to give such notice; for each are required to be kept and the payment on each is notice of an adverse claim. We have been unable to find any case in this state involving the question here under construction. Counsel for both parties state that they are unable to find any case in this state. They cite us to the cases of Allen v. Allen, 159 Cal. 197, 113 Pac. 160; Railway Co. v. Pyle, 19 Idaho, 3, 112 Pac. 678; Green v. Christie, 4 Idaho, 438, 40 Pac. 56; Coonradt v. Hill, 79 Cal. 587, 21 Pac. 1099. These cases, in so far as they discuss the question, hold that all the taxes, state and special, must be paid, but we gather from the opinion of the courts this holding is based on the statute which so prescribes. However, as we interpret our statute, it clearly implies the payment of all taxes. The taxes to be paid are not specified, and the requirement for payment is not limited to any particular tax. State, county, municipal, and school taxes are each a charge on the property-made so by the Constitution and the laws. This must necessarily have been known to the Legislature, and, having failed to limit the tax to be paid, they must have intended all taxes which are a charge upon the land. We believe the court was in error in giving the charge that it was unnecessary to show the payment of city and school taxes.

[5-9] The appellee suggests that, if the trial court was in error in giving the charge, it was not material, and should not reverse the

It is suggested the facts under the charge of the court would have authorized the verdict of the jury under the ten-year statute. The jury could have properly, under the charge of the court, based their verdict on the five-year statute. If it was apparent to us that the verdict was rendered on the ten-year statute, and not the five-year statute, we might be authorized to hold the

tion of an improper judgment. Clearly, appellant's rights required that the law applicable to the five-year statute should be correctly given, and to tell the jury that the taxes for five consecutive years was not required in order to prescribe under the five-year statute was a denial of appellant's right to have the jury told these taxes must be paid before a title would vest under the five-year statute. Under this charge it is probable the jury did not investigate the question of adverse possession longer than the period of five years. It was reasonably calculated to induce the jury to rest content with five years, and not to consider the subsequent years of possession or the acts of the parties with relation thereto, and thereby probably caused the rendition of an improper verdict. If we are correct in holding the court erroneously stated the law in his charge, then, as we believe, the only justification we would have in holding the error immaterial would be to find that appellee, under the facts, was entitled to a peremptory instruction for a verdict under the ten-year statute. The facts in this case are peculiar to it, and more so than is usual. The evidence, aside from the appellee's testimony, tends to support an election by appellee under the will, and would support a finding that she was living with her son on the property as his. This, however, appellee contends, is rebutted by the verdict of the jury. This question was not submitted to the jury by the court by a direct charge on the question, but was doubtless included in the general charge on adverse possession. The bearing the election would have on the question of limitation, however, may not have been clearly perceived by the jury; hence not given that consideration it deserved. There is no testimony that the son was the tenant of appellee. His possession, management, and control of the property is consistent with his claim of title asserted in his answer and his declaration while in possession. If he was not so in possession, then he could have been

Ap-in

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 are 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 ti- tle 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

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The trial court therefore could not have instructed a verdict for appellee under the ten-year statute, and, if the charge of the court was error, as held by us, on the fiveyear the error was material.

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 completed his purchase and obtained plaintiff's title, his possession would have been a rightful one held in his own right, and there could have been no holding adverse to his by other members of the family." Burrell v. Adams, 104 Tex. 183, 135 S. W. 1156. In other words, he would be the true owner in possession, and the wrongful possessor could not prevail under limitation. The rightful title would draw to it the seisin. "Adverse possession is an actual and visible appropriation of the land, commenced and continued under a claim of right, inconsistent with and hostile to the claim of another." Article 5681, R. C. S. In this state, as we understand the rule, it is not necessary to show actual notice of such possession to the true owner, but it must be actual, continuous, visible, notorious, distinct, and hostile. It is stated by the courts that such holding is necessary so "that the adverse claimant may be thus notified that his title is disputed." Gillespie v. Jones, 26 Tex. 346; Richards V. Smith, 67 Tex. 610, 4 S. W. 571; Cyc. vol. 1, p. 1032 (b).

.

In Richards v. Smith, supra, it is said: "When the acts done upon a tract of land are such as to give unequivocal notice to all persons of a claim to it adverse to the claim of all others, and this is accompanied by an actual possession, exclusive in its character, then limitation will run in favor of the person so asserting adverse claim, and enjoying an exclusive possession from the time such exclusive occupancy began, whether the land be inclosed or not."

Again, it is said in Mhoon v. Cain, 77 Tex. 316, 14 S. W. 24, in order for possession to be adverse to the true owner, it "must be 'of such a character as to indicate unmistakably an assertion of a claim of exclusive ownership in the occupant.' Also see Bender v. Brooks, 103 Tex. 329, 127 S. W. 168, Ann. Cas. 1913A, 559.

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Can the evidence in this case be said to conclusively show "unmistakably an assertion of claim of exclusive ownership" in appellee? She was an occupant thereon, and so was the son. If the evidence conclusively showed that the possession was her possession, and not the son's, and that she was ex

[10] The fifth and sixth assignments will be overruled. The question of election under the will was one of fact. If appellee accepted under the will, she had no right to the land, and, in so far as she was concerned, the act of C. F. Somerville in leasing the land did not matter, if she was claiming the land. If appellant desired the submission of the question of her election under the will, it should have requested a charge to that effect. On the hypothesis of appellee's theory urged by her, the charges of the court objected to were correct. If appellant desired its theory presented, a proper charge should have been requested presenting its theory. On the question of election we refer to what has been said in disposing of the first assignment and the authorities cited thereunder, and we also cite the additional cases of Carroll v. Carroll, 20 Tex. 731; Moss v. Helsley, 60 Tex. 426.

For the reasons above suggested, we overrule the seventh assignment.

[11] The appellant requested the following charge:

"You are charged that, if you believe from the evidence that from 1904 to 1911 C. F. Somerville had actual control and management of the property in controversy and was authorized by his mother to control and manage her property, and that in leasing the property in controversy from plaintiff he was acting within the scope of the authority granted by his mother, you will find for the plaintiff as against the defendant and intervener."

This court is unanimous in the opinion that the trial court was not in error in refusing the above charge, and we have decided not to express the views of the majority with reference to the principles sought to be presented by the charge, and withdraw our opinion with reference to the same, heretofore filed in this case.

[12] The ninth assignment will be overruled, for the reason particularly that under the facts submitted the jury were instructed

in refusing to render a verdict for him, and
finding for the intervener, practically found
against C. F. Somerville, and the refusal of
the charge became immaterial, if otherwise (Court of Civil Appeals of Texas.
correct, which we do not now decide.
The tenth assignment is overruled.
think the charge was correctly refused.
The eleventh assignment is overruled.

LEVY et al. v. DUNKEN REALTY CO.*
(No. 5488.)

We

There was some evidence as to the payment of the taxes for the year 1903, and it would have been improper to charge the jury that there was none. If the charge had requested the issue to be submitted as one of fact to be found by the jury, it should have been given under the testimony in the record.

For the reasons given, the judgment will be reversed and the cause remanded for an

other trial.

The motion for rehearing will therefore be overruled, but, as we have given a different reason for reversing the case to that given in the former opinion, appellee will be permitted to file a motion for rehearing on this opinion.

On Motion for Rehearing.

In some measure appellee's criticism of our use of joint possession in the original opinion, is correct, as there, of course, can be but one possession. We might more properly have expressed our meaning by saying "occupancy." We are well aware of the class of cases in which the question of mixed possession has found expression. This is an anomalous case. The true owner of this land found two occupants on it. One had or claimed title to it, as would appear from the probate records by will, and before ten years had elapsed he acknowledged the title of appellant and leased the land as its tenant. Thereafter the true owner is in possession by tenant. The appellee was in possession, or rather living in the house on another portion of the lot. Why should not the rule of mixed possession apply in this kind of a case? We believe it should. Again, the appellee, under the law, as we conceive it, must have had actual, open, visible, exclusive, distinct, and hostile possession. It must have been such as would give notice to the owner that its title is disputed. This joint occupancy by the mother and son, especially after the lease by the son, does not by the record, we believe, conclusively show that appellee had such exclusive hostile possession. The fact that the jury may have found such hostile possession was had for five years might be warranted under the facts; for neither mother nor son was occupying the land as the tenant of appellant up to that time. Thereafter the jury may have well concluded appellee did not have actual, exclusive, and hostile possession such as to give notice to appellant of an adverse claim of title to it.

The motion will be overruled.

Oct. 20, 1915.)

Austin.

1. BROKERS 82-ACTIONS FOR COMMISSIONS -COMPLAINT ALLEGATIONS AS TO ABILITY

AND WILLINGNESS.

procuring a contract for the exchange of lands In a broker's action for commissions for between defendants and C., which provided that if either party failed to perform, such party should forfeit and pay to the other party a specithat C. was at all times ready, able, and willing fied sum as liquidated damages, an allegation to carry out the contract and take defendants' property upon the terms agreed upon, as evidenced by such contract, was more than an alletake the property or pay the stipulated penalty, gation that he was ready, able, and willing to and was a specific and distinct allegation of his ability and willingness to exchange the property upon the terms agreed upon. Dig. 88 101-103; Dec. Dig. 82.] [Ed. Note. For other cases, see Brokers, Cent. 2. TRIAL 343 - VERDICT — CONSTRUCTION AND OPERATION.

In a broker's action for commissions, where the testimony on an issue as to plaintiff's breach of a contract to procure a loan for defendants with which to clear up an incumbrance was conflicting, and such issue was submitted to the jury, a verdict for plaintiff necessarily decided it against defendant.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 809-812; Dec. Dig. 343.] 3. BROKERS 61-RIGHT TO COMMISSIONSFAILURE OF NEGOTIATIONS.

Though brokers with whom defendants listknowledge of the existence of incumbrances on ed property for sale or exchange, and who had the property, could not themselves have made a contract binding defendants to sell or exchange their property otherwise than subject to the tract to exchange lands with a party procured incumbrances, where defendants made a conby the brokers which bound them to remove such incumbrances, the brokers were entitled to their of the incumbrances, and though defendants' compensation, notwithstanding their knowledge failure to comply with the contract resulted from their failure to remove such incumbrances.

[Ed. Note. For other cases, see Brokers, Cent. Dig. §§ 77, 78, 92, 93; Dec. Dig. 61.] 4. BROKERS 82-ACTIONS FOR COMMISSIONS -COMPLAINT ALLEGATIONS AS TO ABILITY

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DENCE.

for procuring a contract for the exchange of Where, in a broker's action for commissions lands between defendants and C., defendants' answer alleged that the trade was not consummated because of incumbrances on their property, and that by reason of their failure to remove such incumbrances, they became liable to C. 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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