Hill v. Whitworth , 1913 Tex. App. LEXIS 151 ( 1913 )

The appellants challenge the right of appellee to judgment for the land sued for, except the 30 acres disclaimed by them, upon the proposition that: "When a party adversely occupies a tract of land in excess of 160 acres for the required period of time to acquire title to 160 acres thereof under the terms of the statute of ten years' limitation, such party then becomes a tenant in common with the legal owners of the excess of the tract. And if such party thereafter sells as much as 160 acres of the land, whether as undivided interest or as a specific part of the larger tract, he has nothing of interest in the land left to base a recovery on even against a trespasser." The proposition admits that appellee had acquired by adverse possession 160 acres in the tract of 900 acres. And under the case of Lumber Co. v. Kennedy, 103 Tex. 297,126 S.W. 1110, having application here in principle of law, appellee acquired title to an undivided 160 acres of the larger tract including the part of his improvements, and became a tenant in common, until a partition was had, with the owner of the remainder. It is undisputed that appellee was in actual possession of his improved part of the land. Being in actual possession of a part of the land, as a tenant in common of an estate in the land, such ownership and actual possession of a part would operate as constructive possession of all the land sued for outside of that part actually occupied by appellee. Being a tenant in common with the owner of the remainder of the large tract, as appellee was, and the specific land sued for being an undivided part of the whole, there was sufficient title to enable appellee to maintain his action against appellants, who are strangers to the title. It is the rule that one tenant in common may maintain trespass to try title against a stranger. Grassmeyer v. Beeson, 18 Tex. 754, 70 Am.Dec. 309; Sowers v. Peterson,59 Tex. 216. And having sued under a general allegation of title in himself, it is not a variance if the evidence shows that appellee owns less than the whole of the specified tract or only an undivided interest. Hutchins v. Bacon, 46 Tex. 408.

The proposition is founded upon appellants being trespassers, and the evidence supports that finding. The evidence shows that appellants' vendors occupied the land from 1860 to 1870 under the Donaldson Lewis filing on the land. But according to the record it must be said that the Donaldson Lewis filing was not accepted but held void by the land office, and thus the land was public domain from 1848 until 1873. No occupancy or claim to the land in suit was made by appellants until 1905. No legal title was shown by appellants, and no adverse possession under a deed beyond four years from 1905. Appellants therefore have shown no title. So if appellee had conveyed parcels of the 900-acre tract resulting in being more than his share in the whole tract, it would in no wise affect appellants. And even if the owner of the remainder of the tract could in a suit against appellee assert that appellee was debarred from claiming this particular land in suit under his possession because his conveyance of other specific parcels operated to be an election and relinquishment of his right to this particular part, outside of his improvements, still appellants, as trespassers or having no title to the land, could not be in a position to the whole tract, like a tenant in common of the whole, to predicate rights against appellee upon his conveyances of the parcels not here in suit.

The judgment is affirmed.