Jordan v. Bacon , 1987 Tex. App. LEXIS 8727 ( 1987 )

BURGESS, Justice,

dissenting.

I respectfully dissent. The majority has found error, and it therefore, reverses and remands in the interest of justice. The error, however, has no relevance to the rendition of the judgment below. They found error in the proceedings before the jury, although the trial judge took the case from the jury. Instead, appellants' second point of error complaining of the trial court’s denial of their motion for instructed verdict and the subsequent granting of ap-pellees’ similar motion should have been sustained.

In a trespass to try title suit, the plaintiff has the burden of proving title by one of four methods: (1) record title from the sovereignty of the soil, (2) title from a common source, i.e., a source from which the defendant also claims title, (3) title by limitation, or (4) a presumptive title arising from possession at a time antedating the defendant’s possession. Adamson v. Doornbos, 587 S.W.2d 445 (Tex.Civ.App.—Beaumont 1979, no writ). In the instant case, the appellees were seeking to prove record title. They, therefore, were bound by either of the first two methods. The appellants did not plead record title to the land in dispute. They sought to prevail by limitations. Therefore, I believe that the appellees were forced to prove their title from the sovereign. The majority admits they did not. This failure to prove title results in a take nothing judgment against the appellees. Hejl v. Wirth, 161 Tex. 609, 343 S.W.2d 226 (1961). Under Hejl, it also results in vesting title in the appellants. As previously noted in Ferguson v. Kelly, 728 S.W.2d 397 (Tex.App.—Beaumont 1987, no writ) (Burgess, J., dissenting), I would deviate from the Hejl rule and enter only a take nothing judgment against the appel-lees without affirmatively entering a judgment in favor of the appellants. For the reasons stated, I respectfully dissent.