Eastham v. Gibbs

125 S.W. 372, 58 Tex. Civ. App. 627, 1910 Tex. App. LEXIS 664

• Court: Court of Appeals of Texas
• Decided: January 22, 1910
• Status: Published

Opinion

CONNER, Chief Justice.

— Appellee instituted this suit for partition of eighty acres of land which he alleged was jointly owned by him and appellant. Appellant answered claiming the whole, specially pleading the five years statute of limitations. The court, however, found against him and ordered partition as prayed for by appellee.

It seems evident to us from the court’s findings of fact and law, to which a number of errors are assigned, that the case was tried upon an erroneous theory. While the findings are not specifically so, it is to be implied therefrom in the light of the judgment that the court concluded that the deed, made the basis of appellant’s plea of limitation, was so defectively recorded as to render the plea unavailable. In this we think there is error, as pointed out in the first assignment. The findings show, and it seems undisputed, that appellant Eastham and W. R. Gibbs, a brother of appellee, purchased the land in controversy on the 18th day of March, 1890, from W. R. Moore, the common source of title herein. The deed was duly recorded in Haskell County, April 2, 1890, and thus describes the land: "All that tract or parcel of land situated in Haskell County, Texas, being eighty acres, known as block 128, subdivision of the Peter Allen 2/3 league survey Ho. 140, abstract Ho. 2, 'certificate Ho. 136, patent Ho. 165, vol. 17, as shown by map of said subdivision recorded in book M7, deed records of Haskell County, Texas.” W. E. Gibbs died in Huntsville, Texas, March 21, 1896, leaving a written will afterwards duly probated in which he named his wife, Lillian C. Gibbs, as independent executrix. On the 19th day of May, A. D„ 1898, said Lillian C. Gibbs, as such independent executrix, executed and delivered to L. C. Eastham, for a consideration of two hundred dollars, a deed convéy-, ing in terms property therein described as follows: “All that certain tract or parcel of land situated in Haskell County, Texas, being eighty acres known as block Ho. 128, subdivision of the Peter Allen 2/3 league survey Ho. 140, abstract Ho. 2, certificate Ho. 136, patent Ho. 165, vol. 17, as shown by map of said subdivision recorded in book M7, deed records of Haskell County, Texas, except so much of said tract or lot of land as is owned by said L. C. Eastham as appears by the deed of W. E. Moore to said L. C. Eastham" and W. E. Gibbs of record on pages 170 and 171, book 14, Haskell County record of deeds.” This deed was duly acknowledged, and was recorded in Haskell County on the 23d day of May, 1898. The deed was in all things correctly recorded save that the block number was given in the record as 28 instead of 128 as given in the deed.

Both the findings and the evidence further show that in July, 1898, Oscar Martin, by direction of appellant, took actual possession of the land in controversy and caused it to be enclosed by a fence, and thereafter until Hovember, 1904, leased the land for the use and benefit of appellant and also rendered and paid all taxes thereon for him. Appellant testified that from the time of the original purchase from Moore until the time of his purchase from the independent executrix he had paid all taxes for the land in the name of Eastham & Gibbs, but that shortly before the purchase from Mrs. Gibbs he had written to Mr. Martin, who was an attorney at law looking after the land in this suit together with some other lands, and asked him to find out whether or not W. E. Gibbs had ever transferred his one-half interest in the- eighty acres of land; that Martin replied that he found no transfer of any kind; that he thereupon took the conveyance from Mrs. Lillian Gibbs and thereafter directed the rendition and payment of taxes in his own name, claiming the whole of the land as his own.

Appellee deraigned title to the one-half interest claimed by him as follows: First, deed of trust from W. E. Gibbs to J. W. Carey, trustee, dated January 17, 1895, conveying, among other property,' the land in controversy. This deed was properly acknowledged, and filed for record in Walker County, Texas, on the same day, but it does not appear to have been recorded in Haskell County. Second, deed from J. W. Carey, trustee, conveying an undivided one-half interest in the eighty acres of land described in appellee’s petition, to Leon and H. Blum, dated February 9, 1895, duly acknowledged, and recorded in Haskell County, April 19, 1895. Third, deed from Leon and H. Blum to Hyman Blum, trustee, on March 21, 1895, acknowledged and recorded in Haskell County, April 19, 1895, conveying property as in deed last mentioned. Fourth, deed from Hyman Blum, trustee, to the Leon and H. Blum Land Company, dated February 29, 1896, duly acknowledged, and filed for record in Haskell County, April 14, 1896, conveying an undivided one-half interest in the land described in plaintiff’s petition. Fifth, deed from Leon and H. Blum Land Company to appellee Jeff D. Gibbs, dated the 14th day of October, 1898, duly acknowledged, and recorded in Haskell County on Hay 22, 1908, conveying, among other property, the undivided one-half interest in the land described in appellee’s petition.

The findings are thus stated that among other things it may bo seen that the court evidently gave consideration to the fact the deed, made the basis of appellant’s plea of limitation, was defectively recorded. In disposing of a similar objection to the operation of the five years statute of limitation it was said by our Supreme Court in Woodson v. Allen, 54 Texas, 551, that “we are not of the opinion that the deed must be correctly copied in every particular or otherwise defense can not be made under it. The copy must be sufficiently accurate to enable persons examining the record to see what land is embraced in it, and that the record and deed are for the same land. If it does this, we think it sufficient.” See also Udell v. Peak, 70 Texas, 547. Tested by the rule so stated, we think it scarcely to be doubted that the record of the deed from Mrs. Lillian Gibbs to appellant was sufficient, if otherwise supported, to sustain appellant’s plea of the five years statute. The record was in all respects accurate save only in the reference to the block. While the block number as staled was given in the record as 28 instead of 128 as in the deed, the record contained the further reference made in the deed to the Conveyance from W. B. Moore to appellant and to W. B. Gibbs, giving the pages of the Haskell County record upon which the deed of Moore appeared and in .which the block number was correctly stated. Any person, therefore, of reasonable intelligence examining xthe record. of the deed from the independent executrix to appellant could not be misled as to what land the deed purported to convey. If so, it can not be said that appellant’s plea of limitation was unsupported because alone of the defective record of the deed upon which his plea was based.

From the findings it is further evident that the court based liis judgment in part, at least, upon the further fact, complained of in the fifth assignment, that appellee had no notice of an adverse holding of the land in controversy on appellant’s part. We, however, disregard such finding as immaterial and insufficient as an obstacle to the operation of the statute. While it is very generally held that for one cotenant to bar the right of another cotenant the latter must have actual notice of the adverse claim or be actually ousted, yet, as said in the case of Portis and Wife et al. v. Hill, administrator, 3 Texas, 279, “There is no case in which a private individual will not be barred by an adverse possession continued for the period prescribed as constituting a bar under the statute of limitations.” A cotenant, therefore, as well as another may be barred provided the adverse claimant is asserting such title and possession as to amount to notice to and an ouster of the cotenant sought to be precluded. Just what facts will amount to proof of such notice and ouster is a question of evi dence dependent upon the circumstances and facts of the particular case.

But admitting the rule in all of its strictness, notice to and ouster of appellee seems immaterial inasmuch as the court finds, and it is undisputed in the record, that appellee’s title was acquired after and not before appellant’s adverse claim and possession, if any, began. Appellant began his claim of sole ownership, actually enclosing the land, etc., upon the receipt and record of his deed from Lillian C. Gibbs, as independent executrix, as early as the 23d day of May, 1898. At this time the title to the undivided one-half interest claimed by appellee was in appellee’s grantor, the Leon and H. Blum Land Company. The land company, therefore, and not appellee, was the co-tenant of appellant at the time his adverse possession, if any, began, and there is nothing in the record indicating that said land company may not have had full notice of appellant’s claim. The record of appellant’s deed purporting to convey the interest acquired by the company; the actual inclosure of the land under open claim of sole ownership; the rendition and payment of taxes in his own name, were at least circumstances tending to show notice and such adverse possession as would give right of action to the land company, and if so, limitation as to that company certainly began. Church v. Waggoner, 78 Texas, 200; Cryer v. Andrews, 11 Texas, 170; Puckett v. McDaniel, 8 Texas Civ. App., 630 (28 S. W., 360). It therefore appears to be immaterial that thereafter appellee was not also given additional notice of appellant’s adverse claim, for once the statute of limitation begins to run it is clear that it will not be interrupted in behalf of a subsequent purchaser objecting to its operation for want of notice.

We conclude that the assignments mentioned must be sustained and the judgment reversed and the cause remanded for a new trial.

Reversed and remanded.