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quired title by limitation under 5 and 10 year, trial court, at plaintiff's request, peremptorily statutes, had kept the land continuously in- | instructed a verdict in her favor for all closed by a fence for any period of 5 or 10 | the land sued for by her, and upon the years, and during such period continued its verdict thus obtained, judgment in her favor use and enjoyment as a pasture for stock, held

was rendered. for the jury.

Defendants, at the proper

time, objected and excepted to the trial 3. Adverse possessionem 112 Limitation judge's action in instructing the verdiet

claimant must prove every fact necessary to against them for so much of the land as give title.

was described in their answer and claimed One asserting title to land by limitation has by them, and after their motion for new trial the burden of proving every fact necessary to give such title; inferences never being indulged öf error to this court.

was overruled defendants prosecuted a writ in favor of a limitation claimant.

For convenience, plaintiffs in error will be 4. Adverse possession am 14-Mere fencing of referred to as “appellants," and defendant land without actual occupancy not sufficient.

in error as “appellee." The mere fencing of land, though land is

At the trial below, appellee never attempte claimed under a deed duly of record, and taxes ed to show title in herself from the soverare duly paid thereon, will not, of itself, with eignty or from any other source, but relied out the statutory contemplated use, cultivation, or enjoyment, give such purchaser title by lim- soley upon her claim of adverse possession itation under either the 5 or 10 year statutes.

as to all the land sued for, while appellants

established title in themselves from the sov5. Adverse possession Om 115(2) - Possession

at times by tenants for cutting timber held ereignty; and, therefore, appellee was not not to give landlord title by adverse posses- entitled to an instructed verdict in her favor sion as matter of law.

as to the 30-acre tract described in appelThat a grantee had several Mexican tenants lants' answer, unless it can be said that the who at times camped upon the 30-acre tract evidence as a whole showed, without conin tents for purpose of cutting timber for tradiction or dispute and was therefore conwood and charcoal, etc., and at times culti-clusive, that appellee had acquired title there. vated a small garden on the land, held not as a to by limitation, as claimed by her. This matter of law to give grantee title by adverse alone was the issue between the parties possession as against true owner.

below, and we shall try to state, as succinctly Error from District Court, Jefferson Coun as possible, the substance of the material ty; E. A. McDowell, Judge.

evidence relative to such issue, as the same

is reflected by the record. Action by Mrs. Annie H. Johnson against

In August, 1878, Joseph Nassis and wife, T. A. Stringer and another. Judgment for who were not shown to have any title, explaintiff, and defendants bring error. Re

ecuted and delivered to one Ezekial Janes versed and remanded.

a deed purporting to convey to Janes a tract E. M. Chester and E. E. Easterling, both of of approximately 33 acres of land, a part of ont, for aintiffs in error.

the Absolam Williams leagu The deed John Hancock, of Thurber, and Smith specifically described the 33 acres by metes & Crawford, of Beaumont, for defendant in and bounds, and was duly recorded soon

after its execution. Janes at once took ac

tual possession of this 33-acre tract, claimHIGHTOWER, C. J. This was an action ing it under his deed duly of record, made of trespass to try title, brought by Mrs. permanent and substantial improvements Annie H. Johnson, as plaintiff, against T. thereon and lived thereon, claiming the land A. Stringer and B. M. Chester, as defendants, as his own, and paid all taxes as they acto recover about 60 acres of land, a part of crued, and continued in peaceable and adthe Absolam Williams league in Jefferson verse possession of this 33-acre tract until county, the land being sued for as one tract, 1910. By such continuous adverse possesand so described in the plaintiff's petition sion, Janes acquired title to said 33-acre by specific metes and bounds. Plaintiff also tract, and this is admitted by appellants. specially pleaded title to the land under the In 1892, one C. U. Connellee, who was not statutes of limitation of 3, 5, and 10 years. shown to have any character of title, but Defendants disclaimed as to all the land wnio, it seems, was asserting some character sued for by plaintiff, save and except a of claim antagonistic to Janes, made a deed tract consisting of about 30 acres, which to Janes, purporting to convey to Janes was described by metes and bounds in their said 33-acre tract, title to which at that answer, and as to this 30-acre tract they time Janes had already acquired by limitapleaded the general denial, not guilty, and tion under both the 5 and 10 year statutes, also interposed the 3, 5, and 10 year statutes and such deed also purported to convey to of limitation.

Janes the 30-acre tract which is claimed by The case proceeded to trial with a jury, appellants in this suit, and of which they but at the conclusion of the evidence the were the true record owners, the two tracts,




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(222 S.W.) however, being conveyed as one described by largement or extension so as to reach the specific notes and bounds. This deed from 30 acres here in controversy, was insufficient Connellee to Janes was duly recorded with to require the true owner of the 30-acre in a few weeks after its execution, and the tract to go to the records to ascertain the proof showed, without dispute, that Janes extent of Janes' claim. thereafter regularly paid all taxes due on (2) That as to whether Janes ever had and the 30 acres in controversy until 1910. The held such continuous, actual possession of the undisputed proof shows that up to the time 30-acre tract in controversy, and so used, Janes got said deed from Connellee, his im- cultivated, or enjoyed the same for a period provements of every kind and character had of time sufficient to give him title by limitabeen confined to the 33-acre tract, which tion under either the 5 or 10 year statute, lies immediately south of the 30-acre tract after taking the deed from Connellee, was in controversy, and Janes, up to that time, under the evidence adduced, an issue of fact never had any character of possession of for the jury. any portion of the 30-acre tract owned by We do not find in appellee's brief any appellants, or rather their predecessors in counter proposition which absolutely and untitle. As to whether Janes ever had such equivocally denies the soundness of the first actual possession of the 30-acre tract here contention made by appellants, as shown in controversy, or any portion thereof, sub-above, but by the second counter proposition, sequent to the deed from Connellee and for which comes nearer to doing so than any such length of time as would confer title of them, appellee replies that the undisputed by the 5 or 10 year statute of limitation evidence showed that Janes, subsequent to (there could be none under the 3-year statute, taking the deed from Connellee, and while because there was no connection with the still in actual possession of the 33-acre tract, sovereignty) was, we think, an issue of fact as before, also took actual possession of for the determination of the jury.

the 30-acre tract, and used, cultivated, and Counsel for appellee, in their argument enjoyed it for some period of time, and that, in this court, conceded that her right to re- even if less than the statutory term, still cover the 30-acre tract in controversy must such posssssion, however brief, was sufficient depend upon proof that title to that tract to require the true owner of the 30-acre was acquired by Janes by limitation subse-tract to go to the record to ascertain the quent to the execution of the deed to him extent of Janes' claim to that tract, and that from Connellee in 1892. If the evidence such possession, regardless of its duration, upon that point showed, conelusively, that is put the statutes of limitation in motion as to say, without dispute or contradiction, that to the 30-acre tract, which continued so long Janes had so acquired title to the 30-acre as Janes occupied and used either of said tract, then the instructed verdict was prop-tracts. er; but, if not, the issue should have gone As to the second contention made by apto the jury.

pellants, as we have shown it

opelAppellants have attacked the action of the lee replies that the evidence adduced upon trial court, in peremptorily instructing the the trial showed, conclusively and without verdict against them, by several assignments conflict or contradiction, that Janes had and of error, but the gist of their contentions held adverse and peaceable possession of the may be stated as follows:

30-acre tract for a period of time sufficient (1) That Janes' possession of the 33-acre to perfect title in him under both the 5 and tract under the deed from Nassis and wife 10 year statutes. baving continued for such period of time [1] After careful consideration of the propas to give him perfect title by limitation, osition involved, we have reached the conthe 33-acre tract was thereby effectively clusion that appellants' first contention, as segregated from all remaining portions of above shown, is sound, and must be susthe league, and just as much so as if the tained. We do not think, however, that eitrue owner had conveyed the 33-acre tract ther of the cases cited by appellants in supto Janes; and that when Janes took the port of their contention can be said to be deed from Connellee in 1892, which, accord- exactly decisive of the point in their favor, ing to the boundaries specified, conveyed both for we think that none of such cases is the 33-acre tract and the 30-acre tract here precisely relevant in its facts to the instant in controversy, Janes' actual possession of case. The cases cited by appellants in supthe 33-acre tract was not thereby extended port of their contention are Broom v. Pearby construction to the 30-acre tract, and son, 98 Tex. 469, 85 S. W. 790, 86 S. W. that Janes' actual possession of the 33-acre | 733; Hill v. Harris, 26 Tex. Civ. App. 408, tract remaining the same after the deed 64 S. W. 820; Holland v. Nance, 102 Tex. from Connellee as before, and being in no 177, 114 S. W. 316; Bird v. McHargue, 182 manner enlarged or extended to the larger Ky. 27, 205 S. W. 957, the last mentioned tract described in the Connellee deed, such being a Kentucky case. But though the cited continued actual possession of the 33-acre cases are not squa rely relevant in their facts, tract, however longa continued, without en-1 yet the reasoning by which the conclusion

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was reached in them all, and especially that named tract, acquired a title thereto as unof Hill v. Harris, supra, applies, strongly assailable as if plaintiffs themselves had con'we think, in favor of appellants' contention veyed it. It was thereby as effectually segrehere. Hill v. Harris was a decision by the gated from the remainder of the league as if it Galveston Court of Civil Appeals, speaking At the time of Kennedy's purchase of the 1,000

had been conveyed to him by the true owner. through Justice Gill, and the Supreme Court

acre tract, his possession of the larger tract had of this state denied a writ of error. There

served its purpose and had ceased to be unlawwas but one point in the case for the con- ful. sideration of the Supreme Court, and that court's action denying the writ of error So in this case title to the 33-acre tract meant, of course, that in the opinion of the

was complete in Janes by limitation long Supreme Court the judgment of the Court of before he took the deed from Connellee in Civil Appeals was correct, but it would not 1892 and therefore the 33-acre tract was, at necessarily follow, of course, that the Su- the date of the last-mentioned deed, effecpreme Court approved in toto the reasoning tively segregated, in legal contemplation, of the Court of Civil Appeals in reaching from all other portions of the Absolam Wilits conclusion. But, however that may be, liams league; and since the undisputed eviit occurs to us that the reasons given for dence showed that Janes, after taking the the conclusion by the Court of Civil Appeals deed from Connellee, did not enlarge his in that case are sound and logical, and that improvements upon the 33-acre tract so as the reasoning there applies to the point here to extend them in any way to the 30 acres under consideration. It was substantially here in controversy, and the character of held in Hill v. Harris that, where a person his possession of the 33-acre tract being in held a part of a league of land under a

no manner changed, his continued actual and deed duly recorded until title thereto was unchanged possession of that tract did not perfected in him by limitation, bis posses- have the effect to extend, by construction, sion could not be extended, by construction, his possession to the 30-acre tract now in so that limitation would run in his favor controversy, the true ownership of which is as to any other portion of the same league admitted to be in appellants. And we canby his taking a deed to the remainder of the not agree with counsel for appellee in their same league, of which he did not take actual broad contention that any act or conduct possession also, notwithstanding it was shown on the part of Janes that constituted actual that taxes upon the whole league were reg- | possession for any period of time, however ularly and duly paid after the second deed brief, after recording the deed from Connelwas taken. In reaching the conclusion there, lee, was sufficient to put the statutes of limthe court, among other things, said:

itation in motion in his favor, and that limi

tation then continued as long as Janes held "It seems to us, therefore, that it is not so much a question of extent of claim on the part actual possession of the 33-acre tract. On of those asserting limitation as it is a question the contrary, we cannot escape the concluof the sufficiency of the possession to send the sion that in order for Janes to have acquirtrue owner to the record to ascertain the ex-ed title by limitation to the 30-acre tract in tent of the claim. The taking and recording of controversy, notwithstanding the fact that a deed to land will not of itself put the stat- he placed the Connellee deed promptly of ute in motion in favor of a claimant thereunder. record and paid all taxes accruing thereon, Neither will adverse possession put the 5-year it was incumbent upon appellee to show, by statute in motion, in the absence of a duly re- conclusive evidence, in order to entitle her corded deed and the payment of taxes. The true owner may ignore such a deed until his to an instructed verdict in this case, that domain is actually invaded. The record of it Janes took and held actual possession of the is not notice of the adverse claim as to the 30-acre tract, claiming the same adversely, true owner until some act is done upon the and held such possession continuously for land itself amounting to adverse possession. a term sufficient to give him title under eiWhen this occurs, the owner must take notice ther the statute of 5 or 10 years; and we of it, and the record of the deed immediately shall not proceed to discuss that point. becomes constructive notice of the extent of the adverse holder's claim. That the record

Appellee, in this connection, first contends of a junior deed is not constructive notice to that the undisputed proof conclusively showprior purchasers is now well settled. * *ed that Janes, shortly after taking the deed We mention this only to emphasize the fact from Connellee in 1892, inclosed the 30-acre that the record of the deed under which de tract in controversy with a wire fence, and fendants claim the 1,000 acres was utterly with that he kept it continuously inclosed until out significance as to plaintiffs, if unaccom- 1910, when he sold the land to appellee's panied by adverse possession. It has been shown that the adverse possession of the 3.234- predecessor in title, and that during all that acre tract had ripened into perfect title in those period of time, Janes was using this in. holding it prior to the purchase by the senior closure for a pasture for stock, both cattle Kennedy, so that, conceding that the legal title and horses, and that such inclosure, use, and to the entire league had been in the plaintiffs, enjoyment of the land constituted, in conthe senior Kennedy, by his purchase of the last- templation of law, adverse possession in him

(222 S.W.) as against the true owner, and that, it being there. It was north from him and south from undisputed that the Connellee deed describ- me. He had it fenced with a pew fence, made ing the 30-acre tract was duly ‘of record out of pews. That is the kind of fence he had during such period of possession, and that around his field. He had a wire fence north all taxes were regularly paid, title by lim- of his field right close to where we live, and itation was shown to have been complete in fence. That fence was put up about 6 years

about 30 acres of land was fenced inside that Janes, under both the 5 and 10 year statutes, after I went out there. It was black land, long before appellee acquired the title and nothing inside that fence but woods, pine, through him. Of course, if appellee is cor- oak, and gum, some large and some small. rect in this contention as to what the un- There were no houses inside of that pasture. disputed evidence was, we would not be re- That fence stayed there 3 or 4 years; it had quired to go any further, but would sustain some gaps in it, so that we could go through the contention and affirm the judgment. this land. There were no gaps left here, and After a careful consideration of all the tes. it, and I have seen it down in different places,

the fence was down so you could pass through timony found in the record, we think that during the 3 years it was up there. There was it cannot be held that it was shown by the no horses or nothing of that kind in there; undisputed evidence, in its entirety, that nothing but woods. After that 3 years Zeke Janes kept this 30 acres continuously in- quit keeping the fence up, and it was torn closed by a fence for any full period of ei- down by people going through there. The first ther 10 or 5 years between the time he took time I ever saw any horses in Zeke's pasture the Connellee deed and 1910, when his pos- was about a year after that wire fence was put session ended; neither can it be said that up; Dan Gill put them in there. That pasthe evidence, as a whole, showed conclusive- ture was not on the 30-acre tract; it was be

tween the 30-acre tract and Zeke's homestead. ly and without dispute that the land was It was a little round place, about two or three used continuously as a pasture during any lots, something like that, that he would bring such period of time while Janes had it. It horses up and put them in there. It was south may be conceded, and we might add it is of where Emma Fennels lived. It was not inthe opinion of this court, that the evidence side of Zeke's field. Dan kept his horses in on the part of appellee, if there were no there about six or eight months. He didn't other, was sufficient to warrant the court in keep them in there all the time either. He instructing the verdict in this case, and would keep them in there three or four days therefore it will be unnecessary to discuss at a time. That little pasture fence where Dan the evidence of any witness for the appellee, kept his horses was built after the wire fence nor will it be necessary to discuss the evi-down. There wasn't any horses or cows in the

was built, and before the wire fence was torn dence in detail of the several witnesses who 30-acre tract, except some time when people testified for appellants; but, in disposing of would go through and leave the gate open the point now under consideration, it will be stock would get in there. I never saw Dan sufficient to note or mention such portions Gill's horses in the 30-acre tract. I saw his of the evidence introduced by appellants, as horses, about seven or eight head in that little defendants below, as was of such character, pasture. The fence around that 30-acre piece we think, to require the submission to the was a three-wire fence. It was fastened to jury of the issue whether Janes' possession trees and posts. The fence was sufficient to and use of the 30-acre tract as a pasture keep stock in and out, except when the gaps

were down. When the gaps were down stock was such as to give him title by limitation. would get in there. I have seen that fence As stated above, it was conclusively shown down at other places than the gaps, but canupon the trial that appellants have the rec- not say how often. I never saw any stock in ord title to the 30 acres in controversy, lying there except when the fence was down. I went just north of and contiguous to the original through there very often. In going to my 33-acre tract purchased by Janes from Nas- work, sometimes I would go through there and sis and wife, and that appellants hold such sometimes I would go to Magnolia. I cannot title under a regular and consecutive chain say whether I went through there as often as of transfers from the sovereignty, and that I would go just which way I wanted to. I

once a week or as often as once a month but they also claim title under a deed from the lived about two blocks from the north fence heirs of one Emma Fennels, whatever that of that 30-acre tract. The Connellee tract claim of title may amount to. Among other had about 30 acres in it, and was right next to witnesses introduced by appellants, as de- us, and was between us and Zeke Janes' field. fendants below, on the issue of limitation, The fence I spoke of is on the Connellee tract. was the witness George Simmons, whose There was no cross fence that I know of be

twcen the Connellee tract and the Zeke Janes testimony in full was as follows:

30-acre tract. The fence stayed around the "I am 58 years old and have been living in Connellee tract about 3 years. It went down Beaumont all my life. I live in the no end when Zeke quit fooling with it. All the fence of town about a quarter of a mile north of the I have been telling about was on the Connelplace where Zeke Janes use to live. I have lee tract, except the little fence where Dan known Zeke all my life. I have lived up there Gill put his horses. That was not on the Connorth of Zeke's old place 30 years. He had nellee tract. No, sir; Zeke Janes never had about 30 or 40 acres of land fenced in out any pasture out there. None at all. There there, and he had it fenced when I moved out was no fence south of the Connellee fence, except the fence around Zeke's field. That is | four blocks before I would come to Emma the only fence that I saw. I don't know ex- Fennels' house. I think all that land between actly how far Zeke's field was from the Con- , the south fence on the Connellee tract and Emnellee fence, but it was about three-quarters' ma Fennels was open land. I never saw any of a mile. I know where Zeke's house was; fence around it.” it was on the Nancy White tract. I lived north of the Connellee 30-acre tract. I never saw

Appellants also, as defendants below, inany fence around the land between the Con- troduced the witness Frank Thomas, whose nellee 30-acre tract and the tract where Zeke testimony in full was as follows: had his field.”

"I am 49 years old, and live on the Concord Cross-examination:

road about a quarter of a mile from where

Zeke Janes used to live. I have known Zeke "The pasture that I am testifying about came Janes all my life, and know wbere his house up in about two blocks of where I live, and is was out there. I don't know how many acres on the Connellee land. Yes; I know where the he had in the field around his house. He had Connellee land is. There is 30 acres of it. a pasture around his house, but I don't know That was the pasture that I had been going how many acres, neither do I know how long through and about which I testified about being he kept the pasture up. I don't exactly redown in about 2 or 3 years after it was built. member when he had the pasture there. I know Zeke Janes built that fence. No; we had he had a pasture, and him and Dan Gill and nothing against Zeke Janes. I did not cut his Sid Milligan use to pasture some horses up fence down. He put gaps in there so that we there, and it was up as often as it was down. could open and close them. Zeke had no pas- I remember when Zeke sold out and moved. I ture between the Connellee tract and Zeke's don't know how long it was before that, that field. There was no pasture in there. I never I saw this fence around that pasture; I didn't did see any horses in there. Emma Fennels pay any attention to it. That Milligan boy was lived kinder to the side of her father's field, running around with Dan, and they pastured but it wasn't between Zeke's field and the Con- some horses in that pasture, but I couldn't nellee tract. She lived about two blocks from tell you exactly how often. I don't know how his field fence. When we came through the many years they did that; I didn't keep any Connellee pasture we would come right upon

account of that. They didn't keep the stock the south and come out there (pointing to north in that pasture all the time. Whenever they line of Connellee's fence). The Connellee pas- wanted to go in the cove and catch wild horses ture, the pasture that I have been testifying they would put them in that pasture. Someabout, is about three-quarters of a mile from times the pasture was down, sometimes it was Zeke's house, I guess. The closest person up. I couldn't tell you how long it would stay living around the place where we would go out down; they were always fixing up fence around of the Connellee pasture was Emma Fennels. there. Sometimes I went through there huntThe pasture fence that I have been testifying ing and saw it down. I was up in that neighabout did not take in Zeke's field. If there borhood all the time. Sometimes in the evewas any other pasture there I know nothing ning I went out there hunting. I used to hunt about it. Yes; I know Dan Gill. I know in that pasture. Sometimes there would be Mr. Johnson, the merchant that lives on Con- one or two cows in there. They were supcord road. I don't know exactly how far i posed to be Zeke Janes' cows. He didn't keep live from him. He has delivered groceries to his cows in there all the time. Everybody my place. He has bought produce from me.

would turn their stock out, and when they He has been living there a good while. He wanted to go in that pasture they would go on lives about a mile from that pasture.

through. There wasn't any stock law out there "Q. And you say that Zeke didn't have any

at that time. I knew Emma Fennels, but don't fence around the north part of his field ? A. remember what year she died. At the time No, sir."

she died Archie (her husband) had quit her.

The fence was down then. I don't know how Redirect examination :

long it was down. All the posts were down

where stock ran over it and knocked it down, “Amos Prater did not live in that pasture. and they would go there and repair it. It was He lived west of Zeke's field, and kinder west torn down that way around about in different of Emma Fennels. Amos Prater had a house places. It was a two or three wire fence; I and a patch fence around it. Amos' girl tore don't remember. When that fence was down the house down and moved it before Emma other peoples horses and cattle went in there, Fennels died. I saw Zeke Janes cutting wood because I had a little mare named Nellie, and on the tract of land where Emma Fennels lived, she got away one day, and I found her in that but he is about the only one I ever saw cut-pasture; the fence was down. That was a ting wood in there. Some Mexicans lived there good many years ago. It was after Emma Fenon the Amos Prater place, but I don't remem-nels and Archie broke up, but before Emma ber ever seeing them cutting any wood. I don't died. I don't know exactly how long before know exactly how long they lived there. I nev- she died. I suppose Emma and Archie lived er saw anybody living in a tent on that tract of together about 6 or 7 years. I remember Dan land or camping on it. That tract of land had Gill used to have horses out there in that pas. been pretty well cut over before Zeke sold it. ture, but whether or not they were his I don't Emma Fennels lived there 7 years. I remem- know. That was after Emma Fennels' death, ber when the house was built there. Her papa I believe. At that time they would go and helped to build it; I don't remember who else. repair that fence whenever they wanted to put From the place where I would come out of anything in there; they would build it up again.

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