Fleming v. Canterbury , 255 S.W. 678 ( 1923 )

As we think the judgment was warranted by the findings set out in the statement above, and that those findings were warranted by testimony the jury had a right to consider, we have not thought it necessary to set out other findings made by the jury and inquire whether they, too, were supported by competent testimony and warranted the judgment. Nor have we thought it necessary to determine whether the effect of the agreement which the jury found Henderson and Crawford entered into, and the acts of Henderson on the faith thereof, were to pass to Henderson the title of Crawford to an undivided one-half interest in the land or not. It was undisputed in the testimony that Gen. Henderson had actual and exclusive possession of all the land, cultivating and using it, from January 1, 1892, to the time of his death in 1901, and that his widow and children had such possession thereof from the date of his death until at least as late as July, 1906. As we understand appellants, they do not contend that such possession by Henderson and his widow and heirs, for over 13 years, if adverse within the meaning of the 10-year statute of limitations, and if Crawford had notice of its nature, did not operate to pass the undivided interest Crawford owned in the land to the Hendersons. Appellants' contention with reference to this phase of the case, as we understand it, is that the testimony did not warrant a finding that the possession of Henderson and of his widow and children was adverse as to Crawford within the meaning of said statute, or, if it did, that it did not warrant a finding that Crawford had notice of the fact.

It appearing that Henderson and Crawford were owners in common of the land prior to January 1, 1892, appellants insist, and we agree (Parsons v. Hubbard [Tex. Civ. App.] 226 S.W. 441), that before Henderson's possession thereof could thereafter be treated as adverse to Crawford, it must have appeared that Henderson had repudiated the cotenancy and that Crawford had notice of such repudiation.

There may be reason to doubt whether the possession of Henderson, before he repaid Crawford the sum Crawford had paid on the land and finished paying the notes he had agreed to pay, should be treated as adverse or not (2 C.J. 153); but we think there is no reason to doubt that his possession thereafter was adverse within the meaning of the statute, and that Crawford was chargeable with notice of the fact. 2 C.J. 154.

The jury found that Henderson finished such payments January 1, 1895. Ten years from that date expired January 1, 1905. As stated above, the possession commenced by Henderson in 1892 was continued by his widow and children to at least as late as July, 1906. It is plain, therefore, that if the 10-year statute of limitation did not operate before said January 1, 1905, to pass to the Hendersons the title Crawford had to an interest in the land, that it did then so operate.

The judgment is affirmed.