Lindley v. Mowell ( 1950 )

COLLINGS, Justice.

This is a trespass to try title suit filed by appellee J. M. Mowell against appellant G. D. Lindley on April 2, 1949. Appellant entered a plea of “not guilty” and further expressly pleaded the three, five and ten year statutes of limitation, Vernon’s Ann. Civ.St. arts. 5507, 5509, 5510, alleging that he had purchased the land in question under foreclosure of a tax lien. Upon a trial before the court without a jury, judgment was entered for appellee Mowell for title and possession of the premises and G. D. Lindley brings this appeal.

Appellee Mowell offered in evidence a deed dated April 3, 1915 by which A. E. Hampton and wife conveyed to him the title to the land in question. Such deed recited a consideration of $2,500.00 of which $650.00 was in cash, $850.00 was evidenced by five vendor’s lien notes and the balance of the purchase price was the assumption of $1,000.00 indebtedness evidenced by five promissory notes executed by R. B Kidd and wife to the Land Mortgage Bank of Texas and secured by a deed of trust executed by Kidd and wife to W T. Humble, Trustee. The five vendor’s lien notes in the total sum of $850.00 executed by appellee Mowell as a part of the consideration for the above conveyance were due on December 1, 1916, 1917, 1918, 1919 and 1920, respectively.

The court found that since the date of maturity of the last notes mentioned in said deed, more than twenty-nine years had elapsed and concluded as a matter of law that it would be presumed that said notes were paid at the time of the institution of this suit.

Appellee introduced a judgment of the District Court of Comanche County, Texas dated November 23, 1942, in favor of the State of Texas against Hughes & O’Rourke Construction Company for taxes in the sum of $544.31, for costs and for foreclosure of a tax lien upon the property in question and further introduced a deed by a Constable of Comanche County, Texas to G. D. Lindley dated January 7, 1943, reciting a consideration of $925.00 and purporting to convey the land in question under, by virtue of, and in satisfaction of the above mentioned tax judgment. Appellant also introduced the judgment and tax deed and claimed title under such deed and under the five year statute of limitation.

The court found that appellant Lindley waived the three and ten year statutes of limitation and further found that, in any event, appellant’s plea of ten year limitation was not tenable because he, by his own admission, took possession of the property in 1943 which is less than ten years from the filing of this suit.

The court further found that suit was filed on April 2, 1949 at a time less than five years after the expiration of the tax redemption period of two years from the date of the tax deed and the date of its registration, and was, therefore, filed less than five years after the two year right of redemption had expired. The court concluded as a matter of law that possession of land under a tax deed is not adverse to the owner during the two years in which the land may be redeemed and that limitation does not run during that time, and further concluded that appellant’s plea of the five year statute of limitation had not ripened at the time of the filing of this suit on April 2, 1949.

The court found, as a matter of law, that the warranty deed from A. E. Hampton and wife to appellee Mowell on April 3, 1915, conveyed a fee simple title to said lands and further found that since appellant Lindley expressly pleaded his title under the tax deed and plea of limitation which, under the evidence, cannot stand, and submitted no competent evidence rebutting appellee’s title, that appellee was not required to go back to the sovereignty of the soil to show any better title, and that by reason of appellee’s title to the property under the Hampton deed he was entitled to recover.

Appellant complains in several points of the weakness of the title proved by appel-lee Mowell, contending that appellee failed to prove either title under a common source or a chain of title connected with the sovereignty of the soil, and that having so failed, the court erred in entering judgment for him.

We cannot agree with appellee’s contention that appellant, -by expressly pleading the five and three year statutes of limitation based upon possession under the tax deed in question, thereby shifted the burden to himself to prove his title and relieved appellee of the burden of proof. Such pleas were alternative to appellant’s plea of “not guilty,” and did not deprive appellant of the right to rely upon a plea of “not guilty” to the extent of requiring appellee to prove his own title. Appellant’s pleas of limitation, based upon the tax deed, defined the extent of his defense but ' did not relieve appellee as plaintiff of the burden of establishing a prima facie right to the property. Tate v. Johnson, Tex.Civ.App., 140 S.W.2d 288; Shields v. Hunt, 45 Tex. 424; Custard v. Musgrove, 47 Tex. 217; Garrison v. Richards, Tex.Civ.App., 107 S.W. 861.

The evidence shows that appellant had been in possession of the property for about seven years, holding and claiming said property under the tax deed. One in possession is considered to be the owner until the contrary is proved. Hughes v. Lane, 6 Tex. 289; Linthicum v. March, 37 Tex. 349; Permian Basin Oil Company v. Smith, 129 Tex. 413, 107 S.W.2d 564, 569, 111 A.L.R. 1152.

Appellee was not entitled to recover on the weakness of appellant’s title but had the burden of establishing his own title by a preponderance .of the evidence. Hovel v. Kaufman, Tex.Com.App., 280 S.W. 185; Lewis v. Frieden, Tex.Civ.App., 135 S.W.2d 284; Humble Oil & Refining Co. v. Wilcoxon, Tex.Civ.App., 70 S.W.2d 218; Jones v. Lockhart, Tex.Civ.App., 144 S.W.2d 426; Niendorff v. Wood, Tex.Civ.App., 149 S.W.2d 161; Griffin v. Ray, Tex.Civ.App., 135 S.W. 248; Houston Oil Co. v. Miller & Vidor Lumber Co., Tex.Civ.App., 178 S.W. 830; Moore v. Kempner, 41 Tex.Civ.App. 86, 91 S.W. 336; Staley v. King Bank & Mercantile Co., Tex.Civ.App., 144 S.W. 308.

In order to make a prima facie case of title, it was necessary for appellee to show (1) a connected title from the sovereignty of the soil down to himself; or, (2) emanation of his title from the source from which the appellant claims; or, (3) possession of -the property at a time antedating the defendant’s possession thereof; or, (4) title by limitation. 41 Tex.Jur., page -500.

Appellee did not plead title by limitation and the evidence conclusively shows that he did not have the type of prior possession necessary to serve as a basis for recovery. He makes no claim to have proved a chain of title from the sovereignty of the soil down to himself; neither did he prove a common source of title. Appellee’s title is proved only by the deed from the Hamp-tons and there is no showing of any connection between the Hamptons and the title claimed by appellant. Appellant’s claim is founded on pleas of limitation and on the tax deed and judgment which indicated that Hughes & O’Rourke Construction Company was the owner and purported to convey such company’s interest in the land. The record does not connect such company with the Hamptons and, therefore, does not show a common source of title.

For, the reasons stated, it is our opinion that appellee failed to establish his title by a preponderance of,the evidence and the judgment in his favor cannot stand. Since the case does not appear to have been fully developed, the judgment of the trial court is reversed and the cause is remanded for another trial.