Buie v. Penn , 1914 Tex. App. LEXIS 1509 ( 1914 )

On Motion for Rehearing.

Upon further consideration we have concluded that the ends of justice are more likely to be subserved by remanding this case for another trial, instead of here rendering judgment, as had previously been ordered.

[5] Counsel for appellees insist that inasmuch as the appellants specially pleaded a title by limitation, and there being a finding by the jury against them on that evidence of title, they occupy the status of naked trespassers, from whom any joint owner of the premises may recover the possession. This conclusion is predicated upon the proposition that, when a party specially pleads a title to real estate, he cannot prove any other. That rule is not applicable to a pleading which specially sets up a title by limitation. Mayers v. Paxton, 78 Tex. 196, 14 S. W. 568; McAdams v. Hooks, 47 Tex. Civ. App. 79, 104 S. W. 432. The reasons for the distinction are fully discussed in the cases cited. If the restriction invoked does not apply in this ease, then the appellants were entitled to the benefit of the presumptions of title resulting from the prior possession of the Camps, with whom they were connected, such ¿as would exist, had they failed to make any special averments as to the basis of their title.

[6] A finding that they had no title by limitation did not destroy the probative effect of this prior possession as prima facie evidence of a paper title. If it had been shown that the appellants in fact had no other claim of title, except that based upon adverse possession, then upon proof of part ownership the appellees would clearly be entitled to recover the entire tract of land. The failure to establish that fact is what prevents an affirmance of the judgment of the court below.

The former judgment of this court will be modified as indicated, and the cause remanded for another trial.