519 Thomas-Huycke-Martin Co. v. T. M. Gray 398 & Sons (Ark.)..

480 Thomason, Dodge v (Ark.).

769 Thomas v. State (Tex. Cr. App.).

[Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

Bains v. Globe Bank & Trust Co. (Ky.) 124 S. | Hurley & Ross v. Oliver (Ark.) 121 S. W. 920. W. 343.

McCabe v. Maysville & Big Sandy R. Co. (Ky.) 124 S. W. 892.

Cobb's Adm'r v. Louisville & N. R. Co. (Ky.) Mahoning Coal Co. v. Dawling (Ky.) 124 S. W.

124 S. W. 831.

Cockrell v. Colson (Ky.) 116 S. W. 775.

Dorian v. City of Paducah (Ky.) 124 S. W. 369.

Eversole v. Wilson (Ky.) 123 S. W. 1196.

Green River Coal & Coke Co. v. Phaup (Ky.) 121 S. W. 651.

370.

Money v. Beard & Marshall (Ky.) 124 S. W. 282.

Parks v. O. K. Jellico Coal Co. (Ky.) 124 S.
W. 868.

T. M. Gilmore & Co. v. W. B. Samuels & Co.
(Ky.) 123 S. W. 271.

WRITS OF ERROR

WERE DENIED OR DISMISSED BY THE

SUPREME COURT OF TEXAS

IN THE FOLLOWING CASES IN THE

COURT OF CIVIL APPEALS

PRIOR TO MARCH 26, 1910.

ases in which writs of error have been denied or dismissed, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

WRITS OF ERROR DENIED.

SECOND DISTRICT.

FIFTH DISTRICT.

Stephenville Oil Mill v. McNeill, 122 S. W. 911. Johnson v. Sharp, 120 S. W. 518.

FOURTH DISTRICT.

SIXTH DISTRICT.

Kettler Brass Mfg. Co. v. O'Neil, 122 S. W. 900. City of Ft. Worth v. Williams. 119 S. W. 137.
Vann v. Denson, 120 S. W. 1020.
Holder v. Shelby, 118 S. W. 590.

THE

SOUTHWESTERN REPORTER.

VOLUME 125.

STEVENSON et al. v. ROGERS.
(Supreme Court of Texas. Feb. 16, 1910.)
LANDLORD AND TENANT (§ 63*)-RECOVERY OF
POSSESSION-SUPERIOR TITLE IN LEssee.

favor of Rogers, but if not, to reverse the decision of the Court of Civil Appeals and affirm that of the district court."

The facts found by the Court of Civil Ap. peals are that plaintiffs owned the N. E. 1 While as a general rule, in an action by of the Samuel Gholson league of land in Mcthe lessor after termination of the lease for pos- Lennan county, and in the year 1893, by session of the leased premises, defendant cannot dispute plaintiff's title or right to possession their agent, made a written lease of said without first surrendering the possession he re- land to defendant Rogers and one Bird, deceived under the lease, where, however, the suit is to recover possession and establish plaintiff's Scribing the land as the N. E. 4 of the title, whereby defendant's title would be destroy-league, in which lease Rogers and Bird ed, the latter may defend by showing a superior title in himself.

[Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 159-176; Dec. Dig. § 63.*]

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by Anna L. Stevenson and others against J. T. Rogers. A judgment for plaintiffs was reversed on appeal by the Court of Civil Appeals (see 117 S. W. 472), and plaintiffs bring error. Affirmed.

Prendergast & Williamson and John C. West, for plaintiffs in error. Taylor & Gallagher and D. A. Kelley, for defendant in

error.

agreed to fence a certain part of the land and to hold possession of the tract leased for their lessors, protecting the land from trespassers. The Gholson grant was the oldest of the six tracts which are connected with this litigation. The particular dates of the different grants are unimportant and will not be given. Grants in the names respectively of Levi Pitts, D. Caldwell, C. Caldwell, and N. H. Hobbs lay to the north of the Gholson survey, and for its south boundary line each called for the north line of the Gholson league. Rogers owned a part of the Pitts and part of the C. Caldwell surveys, and had rented one of the other surveys; he claimed to control the four tracts. Rogers and Bird had a fence along a part of BROWN, J. The application for a writ the south line of the Hobbs, which coincided of error in this case was granted because with the north line of a tract patented in the decision of the Court of Civil Appeals the name of Clark at a time subsequent to practically settles the case. Plaintiffs in the issuing of patents to the surveys named, error, in their application, make this state- upon the assumption that there was a vament: "We concede, in view of the verdict | cancy between the Gholson and the other of the jury and judgment of the lower court, | four surveys. The Clark patent covered a that the land in controversy was not, and is strip of land about 200 varas wide and exnot, on the Gholson N. E. 4, but that it is tending the length of the N. E. 4 of the the Clark survey. If the Court of Appeal's Gholson league, embracing the land lying opinion is correct, they should have reversed between the latter survey and the four surand rendered the case in favor of Rogers. veys on the north. The land in controversy No additional or different proof can be of- is a part of the Clark tract. The plaintiffs fered on a retrial in the district court, even did not have actual possession of the land if it is reversed and remanded. It would when leased to Rogers and Bird, and it was be a useless expense, and consumption of not pointed out to them at the time. There the time of the court, to retry the case in was evidence which tended to show that at the district court if the opinion of the Court the time the lease was made to Rogers and of Civil Appeals is the law and is applicable Bird the attorney and agent of the plaintiffs to this case. We therefore urge the Su- believed that the north line of the Gholson preme Court to grant a writ of error herein, league was identical with the south lines of and if the Court of Appeals' decision is cor- the Pitts, the two Caldwells, and the Hobbs rect, to reverse and render this cause in surveys. When Rogers and Bird fenced the 'For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

Gholson land they continued the fence across | trespass to try title, and the petition is inthe Clark tract and connected with their dorsed as the petition in such actions is refence on the south line of the Hobbs tract. Bird testified: "The land Rogers and I took possession of under the lease was the land between the Peoria road and the Fort Graham road, east and west, and running, north and south, from Mr. Cole's fence north of Mr. Rogers' fence. Cole's fence was on the south part of that quarter and Rogers' fence on the north."

The Court of Civil Appeals states that at the date of the lease Rogers had some claim on the Clark survey, but the character of the claim is not disclosed. Bird testified that he did not know that Rogers claimed the Clark land at that time. In 1901 Rogers acquired title to the Clark land, and in 1905 removed the fence to what he claimed to be the north line of the Gholson and the south line of the Clark surveys.

The district Judge instructed the jury as follows: "(2) If you believe from the evidence that J. T. Rogers and George P. Bird took charge of this land and fenced the same as a part of the Samuel Gholson survey, under the lease which they obtained from the plaintiffs on the twelfth day of May, 1893, wherein plaintiffs leased to said Rogers and Bird the northeast quarter of the Samuel Gholson league in McLennan county, then and in that event you will find for the plaintiffs for all of that portion of said land that was included within the said inclosure of said Rogers and Bird, regardless of where you may find the original north line of the Samuel Gholson league to have been located."

quired to be. The second count sets up the lease to Rogers and Bird, and the refusal of Rogers to surrender possession, with prayer for general relief. The third and fourth counts set up title in plaintiffs by 5 and 10 years' limitation, and pray for relief as in the preceding counts. The Court of Civil Appeals held that the district court erred in giving the second paragraph of the charge, and erred in refusing the charge requested as above copied. It is the general rule that in an action by the lessor, after the termi nation of the lease, for the possession of the leased premises, the tenant cannot dispute his landlord's title or right to possession without first surrendering the possession that he received under the lease. When, however, as in this case, the suit is to recover possession and to establish the title of the plaintiffs, whereby the title of the tenant would be destroyed, the latter may defend by showing a superior title in himself. 18 Am. & Eng. Ency. Law, p. 421; 24 Cyc. 942; McKie v. Anderson, 78 Tex. 209, 14 S. W. 576; Bertram v. Cook, 44 Mich. 397, 6 N. W. 868; Jochen v. Tibbells, 50 Mich. 33, 14 N. W. 690; Dodge v. Phelan, 2 Tex. Civ. App. 448, 21 S. W. 309. In McKie v. Anderson, cited above, Judge Henry said: "It has been held by this court that as a general rule a tenant cannot dispute his landlord's title. Tyler v. Davis, 61 Tex. 674. When limited to an action for the possession alone of the land there can be no question about the application of the doctrine. But when it is the purpose of the suit not only to recover possession, but to establish title or to have partition, where the decree sought will not only give possession of the land, but by estoppel settle the title to it, the rule does not apply. The tenant is estopped while he holds that relation from disputing his landlord's right of possession. Before doing that he should, in the language of Chief Justice Willie in the case of Juneman v. Franklin, supra [67 Tex. 411, 3 S. W. 562] 'give up the advantage he derived from the tenancy by being let into possession in order to remove the estoppel to which he was subjected.' As the plaintiff in this case did not so limit his pleading that a judg ment in his favor would have been evidence of nothing but his right to the possession of the land, but on the contrary made the issues of title and partition, so that a decree in his favor would have settled the question of title between him and the defendant, we think it was the right of the defendant to prove that he owned the superior title to the land, without regard to the question whether Judgment was entered in favor of plain- he was in or out of possession when he attorntiffs for the title and possession of the landed to plaintiff." Tyler v. Davis, 61 Tex. 674, in conformity with the verdict.

The defendant requested this charge, which was refused: "The plaintiffs' title papers call to run to and with the north or northwest boundary line of the Samuel Gholson survey; and the defendant J. T. Rogers' title papers call to run to and with the north or northwest boundary line of the Samuel Gholson survey on the opposite side from plaintiffs' land. Now, you are instructed that if you believe from the testimony that the lands which the defendant, J. T. Rogers, has inclosed under fence built by him, is located on the north or northwest side of the said line of the said Gholson survey, then you are instructed to find a verdict for the defendant, J. T. Rogers."

The jury returned the following verdict: "We the jury find for the plaintiffs for all that portion of the land in dispute that was included in the inclosure of Rogers and Bird, under the second paragraph of the charge, and we find for the defendant for that portion of said strip of land lying west of said inclosure and the Towash road."

The petition is divided into four counts:

is not in conflict with McKie v. Anderson. In that case (Tyler v. Davis) the court held