
    PADGETT v. GUILMARTIN.
    (No. 2330.)
    (Supreme Court of Texas.
    Jan. 27, 1915.)
    Trespass to Try Title (§ 6) — 'Title to Support — Tenant in Common.
    Where plaintiff proves title in himself to five-sevenths of the land in controversy through conveyances of five of the seven heirs of the original owner, he may recover all the land in trespass to try title as against a mere trespasser.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dee. Dig. § 6.)
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Action by E. P. Padgett against J. F. Guil-martin. From a judgment of the Court of Civil Appeals (138 S. W. 1143) reversing in part a judgment for plaintiff, he brings error.
    Reversed, and judgment of district court affirmed.
    E. P. Padgett, of Hemphill, in pro. per. A. E. & S. M. Davis, of San Augustine, for defendant in error.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   BROWN, C. J.

We copy from the opinion of the Court of Civil Appeals the following statement of facts upon which the court entered its final judgment:

“The evidence in the record justifies the following fact conclusions: The land in controversy is a part of a tract of land titled to Wm. Clark by the Mexican government in June, 1835. On October 12, 1838, Wm. Clark conveyed a part of his headright survey, which included the land in controversy, to his> son, Elijah Clark. Appellee claims title through deeds executed to him by certain of the heirs of Elijah Clark. About the year 1853, Elijah Clark contracted to sell to his brother-in-law, Paschal Ashmore, 100 acres of land, being the land in controversy; the consideration being that Ashmore would pay $1 per acre for the land and move onto the tract and be a neighbor of Elijah Clark. Acting under this contract, Ashmore built a small log house or hut on the land, cleared up a few acres, which he partially fenced, and with his wife moved on the land and lived there a little more than a year, when he and his wife separated and both moved off and abandoned the land. The contract between Ashmore and Elijah Clark was verbal, and Clark never executed any deed or other conveyance of the. land to Ash-more. Elijah Clark died soon after Ashmore left the place, and his wife died in 1863. While the testimony is meager, we think it sufficient to support the court’s conclusion that Ashmore never paid for the land. There was never any active assertion of title by any of the Clarks after Ashmore moved off the place until about the time plaintiff purchased the land, but the Clarks believed that the land had not been paid for by Ashmore, and some of them were openly claiming the land as far back as 25 or 30 years ago. They never paid taxes on it, however, after Ashmore went into possession. When Ash-more moved off the land, he sold his improvements thereon to Colon McRae, but made him no deed to the improvements or to the land. On October 10, 1869, H. C. Hicks sold the land in controversy to J. M. Burroughs, reciting in the deed that it was the same land that J. H. McRae had previously sold to Hicks. There was no proof offered to show that the title was ever in J. H. McRae, and none to show a conveyance by McRae to Hicks, except the recital in the deed above mentioned. Burroughs died leaving a will which was duly probated, and defendant Guilmai'tin claims the land by mesne conveyances from the executors of Burroughs’ estate. The land was rendered for taxes in 1861 by J. I-I. McRae, and in 1862 and 1868 by H. C. Hicks, from 1869 to 1891 by Burroughs, and from 1891 to 1908 by Burroughs or Guil-martin. No one has ever had actual possession of the land or any part of it from the time Ash-more moved off until after appellee Padgett bought it, when appellant inclosed it with a wire fence.
“We think these findings justify the court’s conclusion of law that ‘Elijah Clark died possessed of the land sued for and that it passed by inheritance to his children,’ and we conclude, also, that appellee Padgett, by his deeds, acquired the title of such of the heirs of Elijah Clark as executed conveyance to him.
“What we have said in disposing of the twenty-third assignment applies also to the twenty-fourth, twenty-fifth, twenty-sixth, and twenty-seventh assignments, which, with their several propositions, are overruled.
“The twenty-eighth and thirtieth assignments have’ been examined by us, and we are of opinion that neither of them points out reversible error, and they are overruled.
“By the twenty-ninth assignment appellant complains that the court erred in the twelfth paragraph of its findings of fact to the effect that the heirs of Elijah Clark had conveyed the land in controversy to the appellee Padgett. He contends that this finding is in direct conflict with the evidence offered on the trial by the plaintiff, which shows that plaintiff did not buy the interest of two of the seven heirs of Elijah Clark.”

If we assume that the evidence shows Padgett to be the owner of only five-sevenths of the land in controversy and that title to two-sevenths remains in Clark’s heirs, still Padgett was entitled to recover possession of all of the land for himself and the owners of the two-sevenths, his tenants in common, as against Guilmartin, who was a naked trespasser. Croft v. Rains, 10 Tex. 523; May v. Slade, 24 Tex. 205; Presley v. Holmes, 33 Tex. 476.

In the case last cited the court stated the rule distinctly thus:

“This is an action of trespass to try title, brought in the district court of Shelby county by the appellee, together with Caroline E. Edge-worth. The latter abandoned the suit, and the action proceeded in the name of the appellee, and it is urged by the appellant that this was error for which we should reverse the judgment. The law is too well settled by the elementary authorities, as well as in the adjudicated cases, to require much comment here, that one joint tenant or tenant in common may maintain either trespass or ejectment, in his own name, against a mere trespasser or wrongdoer.”

The Court of Civil Appeals erred in reversing the judgment of the district court and rendering judgment for Guilmartin. It is therefore ordered that the judgment of the Court of Civil Appeals be reversed and set aside, and the judgment of the district court be affirmed. It is further ordered that the plaintiff in error recover of the defendant in error all costs in all the courts.  