DENMAN, Associate Justice.
This suit was brought November 20, 1894, by Maria de la Luz Garcia, joined by her husband and her sister, Josephina Jewett, against John Illg, to recover the title and possession of a lot in San Antonio, Texas, and in case they should recover less than the entire lot, for partition. By amended petition filed December 17, 1896, plaintiff, Josephina Jewett, declined further to prosecute the suit, and the same proceeded with said Maria de la Luz Garcia and her husband as sole plaintiffs.
Defendant Illg pleaded not guilty; also, “that defendant and those whose title he holds have had peaceable and adverse possession of the property in controversy, cultivating, using, and enjoying the same for more than ten years next after plaintiffs’ cause of action accrued and prior to the filing of this suit. Wherefore, he says that plaintiffs’ right of recovery herein is barred by the statutes of limitation of ten years.” Also, in substance, that if plaintiffs ever owned any interest in the land in controversy, that same was a part of a larger lot; that they claimed the same by inheritance from their mother, and now assert that she was a tenant in common with one Jose Gutierrez; that if said tenancy ever existed, that more than sixty years ago Gutierrez disaffirmed same by asserting title to the whole of the lot exclusively in himself and occupying the same continuously down to 1874, when he conveyed to Conrad Lehman adversely to plaintiffs and their said mother, claiming title to the same exclusively in himself, openly and notoriously, paying taxes, and erecting improvements thereon, and that, as heretofore averred, his title to the whole of said property was complete under the statutes of limitation at the time of the execution of said deed to Lehman. By supplemental petition plaintiffs replied to defendant’s pleas of limitation, that Maria de la Luz Garcia and her husband, who joined her in said petitions, were lawfully married in November, 1862.
There were other issues presented by the pleadings of the parties which we deem it unnecessary to notice.
On the trial, the court instructed the jury to find for plaintiffs an undivided one-fourth of the land in controversy. From a judgment rendered upon the verdict responding to said charge, Illg appealed to the Court of Civil Appeals, assigning said charge as error, and said court having affirmed the judgment, he has brought the case to this court upon writ of error complaining of the charge.
In order to determine the propriety of the charge, it will be necessary to make a general statement of the evidence.
Plaintiff introduced a deed from Domingo Perez to Clara Ximenes, dated February 14, 1839, conveying a lot eleven varas wide in San Antonio, .Texas, bounded west by Laredo Street, south by the street that leaves the city by the lower end of Military Plaza, and east by the San Pedro Creek. Plaintiff testified that Clara Ximenes and her husband, Jose Antonio Gutierrez (the first), left only one child, Jose Antonio Gutierrez (the second), who married Josefa Silva, and left at his death, in 1816, as his only children, Jose Antonio Gutierrez (the third) and
Conception Gutierrez, wife of Diego Jewett; that said Conception died in Mexiéo in 1855, leaving as her only children plaintiffs Josefina and Maria de la Luz, who married her present husband, Garcia, in Mexico, in 1863; that said Josefa Silva about 1818, soon after the death of her said husband, Jose Antonio Gutierrez (the second), moved to Monterey, Mexico, leaving her son, said Jose Antonio Gutierrez (the third) with his grandmother, said Clara Ximenes, in San Antonio, Texas, and died in Monterey in 1870, at the age of eighty-two years; that when said Josefa Silva left San Antonio she left no power of attorney with her said son, as he was but a child and was left in charge of Ms grandmother, Clara Ximenes. Plaintiffs next introduced in evidence, for the purpose of proving common source of title only, a deed from themselves to Conrad Lehman, dated October 30, 1875, which instrument, it is admitted, did not convey plaintiff’s title because her husband did not join therein. Plaintiffs next introduced in evidence a partition deed between said Jose Antonio Gutierrez (the third) and Conrad Lehman, dated January 18, 1876, which instrument set apart to Lehman the eastern portion and to Jose Antonio Gutierrez the western portion of the lot conveyed by Perez to Clara Ximenes, as aforesaid, but no reference is made to said first deed in the latter. Plaintiffs next introduced a deed from Conrad Lehman to John Illg, dated January 18, 1876, conveying to Illg the lot set apart to Lehman in said partition deed. One of the sons of said Jose Antonio Gutierrez (the third), for defendants, at the age of 70 years, testified that his father was 84 years old when he died, sixteen or seventeen years ago; that his said father got the property (referring to the entire lot partitioned between his father, Jose Antonio Gutierrez, and Lehman, as aforesaid) from Jose Antonio de la Garza, who died about 1835, and who was the husband of Clara Ximenes, but could not say whether Clara Ximenes had been previously married .to Jose Antonio Gutierrez (the first); that Jose Antonio de la Garza left the property to Ms father, who claimed it all as Ms; that in 1836 there was a jacal in the corner, and after that his father built a house there about fifty years ago; that his father lived there and fenced the property, the fence being there from 1836 up to lately; that his father paid the taxes; that no claim was ever made against his father for the property until about the time the said deed between Ms father and Lehman was executed; that witness was born on the property and lived there after he was married, and that his father kept horses and cattle on the lot all the time; that Conception Gutierrez was his father’s sister, but he never knew her children, plaintiffs in this case, nor did he know his grandmother, Josefa Silva; that his father was not the agent or attorney for his aunt, but Lehman was; that he does not know whether his .father acted as such for Ms grandmother, Josefa Silva. His father never told him about it. Witness did not know the husband of Josefina Jewett— never heard his name; that his father claimed that his grandfather, Jose Antonio de la Garza, left the property to him. He had no difficulty with it at all. His fatheff gave Lehman property in the partition
deed because he willed to do it. He wanted to give it to him for Maria de la Luz Garcia and Josefina Jewett.
From the testimony of this witness for defendant, the jury might have concluded that his father, Jose Antonio Gutierrez, claiming under Garza, had peaceable and adverse possession of the entire lot, using and enjoying the same from 1836 to the date of the deed to Lehman in 1875, and that in fact there was never any common source of cotenancy between him and anyone claiming under Clara Ximenes, who does not appear to have had any claim to the land until the deed from Perez to her in 1839, in which event plaintiff could not have recovered upon her alleged common source.
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DENMAN, Associate Justice.
This suit was brought November 20, 1894, by Maria de la Luz Garcia, joined by her husband and her sister, Josephina Jewett, against John Illg, to recover the title and possession of a lot in San Antonio, Texas, and in case they should recover less than the entire lot, for partition. By amended petition filed December 17, 1896, plaintiff, Josephina Jewett, declined further to prosecute the suit, and the same proceeded with said Maria de la Luz Garcia and her husband as sole plaintiffs.
Defendant Illg pleaded not guilty; also, “that defendant and those whose title he holds have had peaceable and adverse possession of the property in controversy, cultivating, using, and enjoying the same for more than ten years next after plaintiffs’ cause of action accrued and prior to the filing of this suit. Wherefore, he says that plaintiffs’ right of recovery herein is barred by the statutes of limitation of ten years.” Also, in substance, that if plaintiffs ever owned any interest in the land in controversy, that same was a part of a larger lot; that they claimed the same by inheritance from their mother, and now assert that she was a tenant in common with one Jose Gutierrez; that if said tenancy ever existed, that more than sixty years ago Gutierrez disaffirmed same by asserting title to the whole of the lot exclusively in himself and occupying the same continuously down to 1874, when he conveyed to Conrad Lehman adversely to plaintiffs and their said mother, claiming title to the same exclusively in himself, openly and notoriously, paying taxes, and erecting improvements thereon, and that, as heretofore averred, his title to the whole of said property was complete under the statutes of limitation at the time of the execution of said deed to Lehman. By supplemental petition plaintiffs replied to defendant’s pleas of limitation, that Maria de la Luz Garcia and her husband, who joined her in said petitions, were lawfully married in November, 1862.
There were other issues presented by the pleadings of the parties which we deem it unnecessary to notice.
On the trial, the court instructed the jury to find for plaintiffs an undivided one-fourth of the land in controversy. From a judgment rendered upon the verdict responding to said charge, Illg appealed to the Court of Civil Appeals, assigning said charge as error, and said court having affirmed the judgment, he has brought the case to this court upon writ of error complaining of the charge.
In order to determine the propriety of the charge, it will be necessary to make a general statement of the evidence.
Plaintiff introduced a deed from Domingo Perez to Clara Ximenes, dated February 14, 1839, conveying a lot eleven varas wide in San Antonio, .Texas, bounded west by Laredo Street, south by the street that leaves the city by the lower end of Military Plaza, and east by the San Pedro Creek. Plaintiff testified that Clara Ximenes and her husband, Jose Antonio Gutierrez (the first), left only one child, Jose Antonio Gutierrez (the second), who married Josefa Silva, and left at his death, in 1816, as his only children, Jose Antonio Gutierrez (the third) and
Conception Gutierrez, wife of Diego Jewett; that said Conception died in Mexiéo in 1855, leaving as her only children plaintiffs Josefina and Maria de la Luz, who married her present husband, Garcia, in Mexico, in 1863; that said Josefa Silva about 1818, soon after the death of her said husband, Jose Antonio Gutierrez (the second), moved to Monterey, Mexico, leaving her son, said Jose Antonio Gutierrez (the third) with his grandmother, said Clara Ximenes, in San Antonio, Texas, and died in Monterey in 1870, at the age of eighty-two years; that when said Josefa Silva left San Antonio she left no power of attorney with her said son, as he was but a child and was left in charge of Ms grandmother, Clara Ximenes. Plaintiffs next introduced in evidence, for the purpose of proving common source of title only, a deed from themselves to Conrad Lehman, dated October 30, 1875, which instrument, it is admitted, did not convey plaintiff’s title because her husband did not join therein. Plaintiffs next introduced in evidence a partition deed between said Jose Antonio Gutierrez (the third) and Conrad Lehman, dated January 18, 1876, which instrument set apart to Lehman the eastern portion and to Jose Antonio Gutierrez the western portion of the lot conveyed by Perez to Clara Ximenes, as aforesaid, but no reference is made to said first deed in the latter. Plaintiffs next introduced a deed from Conrad Lehman to John Illg, dated January 18, 1876, conveying to Illg the lot set apart to Lehman in said partition deed. One of the sons of said Jose Antonio Gutierrez (the third), for defendants, at the age of 70 years, testified that his father was 84 years old when he died, sixteen or seventeen years ago; that his said father got the property (referring to the entire lot partitioned between his father, Jose Antonio Gutierrez, and Lehman, as aforesaid) from Jose Antonio de la Garza, who died about 1835, and who was the husband of Clara Ximenes, but could not say whether Clara Ximenes had been previously married .to Jose Antonio Gutierrez (the first); that Jose Antonio de la Garza left the property to Ms father, who claimed it all as Ms; that in 1836 there was a jacal in the corner, and after that his father built a house there about fifty years ago; that his father lived there and fenced the property, the fence being there from 1836 up to lately; that his father paid the taxes; that no claim was ever made against his father for the property until about the time the said deed between Ms father and Lehman was executed; that witness was born on the property and lived there after he was married, and that his father kept horses and cattle on the lot all the time; that Conception Gutierrez was his father’s sister, but he never knew her children, plaintiffs in this case, nor did he know his grandmother, Josefa Silva; that his father was not the agent or attorney for his aunt, but Lehman was; that he does not know whether his .father acted as such for Ms grandmother, Josefa Silva. His father never told him about it. Witness did not know the husband of Josefina Jewett— never heard his name; that his father claimed that his grandfather, Jose Antonio de la Garza, left the property to him. He had no difficulty with it at all. His fatheff gave Lehman property in the partition
deed because he willed to do it. He wanted to give it to him for Maria de la Luz Garcia and Josefina Jewett.
From the testimony of this witness for defendant, the jury might have concluded that his father, Jose Antonio Gutierrez, claiming under Garza, had peaceable and adverse possession of the entire lot, using and enjoying the same from 1836 to the date of the deed to Lehman in 1875, and that in fact there was never any common source of cotenancy between him and anyone claiming under Clara Ximenes, who does not appear to have had any claim to the land until the deed from Perez to her in 1839, in which event plaintiff could not have recovered upon her alleged common source.
Again, if the jury had not so found, but had concluded that he was mistaken as to the source of his father’s claim and the time he took possession, and had further concluded that his father originally acquired the property from Clara Ximenes after she received the deed from Perez in 1839, we are of opinion that they might have found that he, in the beginning of his possession, repudiated any claim of his mother or sister, and that they had notice thereof. Upon the death of his father, in 1816, his mother and sister, leaving him with his grandmother, Clara Ximenes, abandoned the old home and took up their permanent abode in Monterey, where his sister married and raised a family consisting of these plaintiffs. There seems to have been little communication between the two branches of the family. Ho claim by his mother or sister during their lives was made upon him for any portion of the property, which he was openly claiming, using, and paying taxes upon as his own, and upon which he had raised his family. Certainly repudiation of the claim of a cótenant and notice thereof may be shown by circumstances, and in cases like this, after all the parties are dead, the jury may infer such facts from long continued possession under claim of exclusive ownership and nonassertion of claim by the other tenant.
If the jury had found that Gutierrez had acquired the entire title by limitation at the time the deed between him and Lehman was executed, plaintiff could not have recovered; for if such deed, as she contends, was void under the doctrine of Davis v. Agnew, 67 Texas, 211, for the reason that Lehman had no title upon which to have based a partition, then the legal title remained outstanding in Gutierrez, and if, on the other hand, it passed Gutierrez’s title thus perfected by limitation to Lehman, Illg has a perfect title. The coverture of plaintiff, beginning in 1862, would not affect these questions, nor would it prevent Illg, under his evidence of limitation in the record, which we have not deemed it necessary to quote, from having acquired from Gutierrez whatever title he owned at the date of the deed to- Lehman and did not pass thereby.
It is contended, however, that the recital in said partition deed, to the effect that Gutierrez and Lehman, as assignees of plaintiffs, were joint owners of the lot and had agreed upon a partition, shows that the
prior possession of Gutierrez was not adverse to the interest of plaintiffs.' Plaintiffs, not being parties or privies to this deed and therefore not bound thereby, clearly could not urge such recital as an estoppel, but could only use it as evidence, just as they could any other declaration made by Gutierrez while in possession explanatory of the nature of his holding. In view "of another trial we do not deem it proper to comment upon the comparative probative force of this recital and the other testimony bearing upon the nature of Gutierrez’s possession. Having reached the conclusion that the one does not control the other as a matter of law, it follows that we are of the opinion that the question of limitation should have been submitted to the jury. For error in giving said charge the judgments will be reversed and the cause remanded.
If on another trial it should be shown that the paper purporting to be the will of Garza came from such custody and was surrounded by such circumstances as would make it admissible as an ancient instrument if it had been a deed, and if it be shown that it relates to the land in controversy or was claimed by Jose Antonio Gutierrez to have been the source of his title thereto, we think it should be admitted as tending to show that Gutierrez never in fact took possession of or held the lot as tenant in common with plaintiff’s mother, but all the time held it adversely to her. It would be evidence on such issue though it be conceded that under the law* then in force a will must have been probated to make it effective as a muniment of title.
Reversed and remanded.