
    McBURNEY et al. v. KNOX.
    (No. 3067.)
    
    (Supreme Court of Texas.
    May 17, 1922.)
    1. Adverse possession @=>100(1) — One inclosing part of tract does not disturb owner’s constructive possession of balance not claimed.
    Under Rev. St. art. 5676, in the absence of a claim by one inclosing part of a tract to the portion of the tract without his inclosure, the owners continued in their undisturbed constructive possession thereof.
    2. Adverse possession <⅞=100(1) — Occupant’s claim to inciostire only not converted to claim to larger tract in favor of one holding deed to such tract by occupant’s taking lease from such holder.
    Under the rule that color of title is ineffective to give constructive possession to holder of such title unless the claim is accompanied by possession, where an occupant entered the 354-acre tract in controversy in 1896, clearing and fencing about 15 acres, and claimed only the inclosed land from 1896 to 1905, and in 1905 agreed with defendant’s predecessor to hold possession of the 354 acres as tenant of defendant’s predecessor, the fact that thereafter, for more than five years, defendant’s predecessor claimed the entire 354 acres, paying taxes thereon, would not give him title by adverse possession; his secret agreement making the occupant his tenant, unaccompanied by open and visible acts on the premises, not being actual and visible appropriation of the 354 acres outside the inclosed portion, “commenced and continued under a claim of right,” as required by Rev. St. art. 5681.
    3.Appeal and error <g=>l 175(5) — Where location of small inclosed lot a portion of a large tract, could not be determined for lack of data, final judgment will not be rendered.
    In an action by a person claiming land against another who claimed title through adverse possession, where title by adverse possession to a part which was inclosed was in defendant, but there was not sufficient data to segregate the 'uninclosed from the inclosed land, on appeal final judgment will not be rendered. -
    Error to Court of Civil Appeals of Ninth Supreme Judicial District.
    Action by Nora Walker McBurney and otters against Hiram Knox. From a judgment by tbe Court of Civil Appeals (191 S. W. 730), affirming a judgment for defendant, plaintiffs bring error.
    Reversed and remanded.
    J. W. Minton, of Hemphill, W. D. Gordon, of Beaumont, and I-I. G. Russell, of Pecos, for .plaintiffs in error.
    Mantooth & Collins, of Lufkin, and W. F. Goodrich, of Hemphill, for defendant in error.
    
      
       Rehearing denied June 21, 1922.
    
   GREENWOOD, J.

This was an action, brought by plaintiffs in error against defendant in error, to recover an undivided one-half interest in 354 acres of land in Sabine county.

Defendant in error sought to defeat the title of plaintiffs in error by showing ttat he held a superior title, which had been acquired under the five years’ statute of limitations.

The practically undisputed facts disclosed that one Garlington entered on the 354 acres about 1896, clearing and fencing about 15 acres during that year; that Garlington claimed only the land within his inclosure from 1896 to 1905; that William Knox owned an undivided one-half interest in the 354 acres and held a duly recorded deed to the entire 354 acres; that Garlington agreed with William Knox in 1905 to hold possession of the 354 acres as Knox’s tenant, it being understood ttat Knox would convey to Garlington the land he had improved; that thereafter, for more than five years, William Knox claimed the entire 354 acres, paid all taxes thereon, as they became due, and, through his tenant, Garlington, had actual possession of that portion of the 354 acres which had. theretofore been improved by Garlington. Prior to the institution of this suit defendant in error acquired the interest and claim of William Knox in and to the 354 acres of land.

The district court rendered judgment for defendant in error on his plea of limitation of five years, and the judgment was affirmed by the Court of Civil Appeals. 191 S. W. 730. The writ of error was granted with the notation that the decision of the Court of Civil Appeals conflicted with that of this court in Holland v. Nance, 102 Tex. 183, 114 S. W. 346.

It is our conclüsion that there was no actual and visible appropriation of the 354 acres of land, save the inclosed portion, cojn-rnenced and continued under a claim of right hostile to the title of plaintiffs in error, as was requisite to mature title by limitation. Article 5681, R. S.

From 1896 to 1905, Garlington had actual possession of only the land within his inclosure. No part of the remainder of the 354 acres was in his constructive possession. Had he been claiming other land, which, with that inclosed, did not exceed 160 acres, his constructive possession, under article 5676, would have embraced same. In the absence of claim by Garlington to the portion of the 354 acres without his inclosure, the owners continued in their undisturbed constructive possession thereof. Houston Oil Co. v. Ainsworth (Tex. Com. App.) 228 S. W. 187. The transactions of 1905 and thereafter did not deprive plaintiffs in error of their constructive possession of one-half the uninelosed portion of the 354 acres. There was nothing on the ground to charge the owners with notice of a more extended claim than that under which Gar-lington had made his original entry. The owner does not begin to be affected by a hostile claimant’s deed duly recorded, together with payment of taxes, through operation of the five years’ statute of limitations, unless or until accompanied by adverse possession. It is possession such as is required by the statute which puts the owner on inquiry which should result in knowledge of the extent of the possessor’s claim of right. No secret agreement by an adverse claimant with a tenant, unaccompanied by open and visible acts on the premises, can transfer constructive possession of land from the owner to the adverse claimant. Title is perfected by limitation to no land not within the limitation claimant’s actual or constructive possession. Plaintiffs in error not having lost their constructive possession of half of the uninclosed land did not lose, by limitation, their superior title thereto.

As clearly stated by the Supreme Court of Minnesota:

“The reason for the doctrine that when a man enters upon-land claiming a right and title to the same, under color of a conveyance, and acquires a seisin by Ms entry, his seisin will extend to the whole tract, there being no adverse actual possession in the way, is because an entry on part of the lan<3 is deemed to be an entry and an ouster as to the whole. The entry and the possession are referred to the claim of title, and are coextensive with the boundaries stated in the conveyance or other written instrument under which entry has been made. But when an entry is not under color of title there is no invasion or disseisin which notifies the true owner of a claim asserted by another person, or which gives him a right of action, except as to the land actually .occupied. As between the owner and the invader, actual occupation of a part divides the possession which had theretofore been constructively in the former, so that as to the occupied land possession is in the latter. The true owner is not subsequently dispossessed and disseised by the obtaining- of color of title to the whole tract by the adverse claimant. Possession of the whole cannot be drawn to the occupant of a part in that way.” Barber v. Robinson, 78 Minn. 199, 200, 80 N. W. 968, 969.

The previous possession of Garlington can certainly be of no more avail to William Knox, in acquiring a title by limitation, superior to that of plaintiffs in error, than if Knox himself, without color of title, had been in possession of the inclosed land, prior to the date of the tenancy contract, with his claim restricted to the land within the inclosure. This conclusion is compelled by the obvious consideration that in both cases exactly the same facts, so far as concerns the actual possession, cultivation, use, or enjoyment of the premises, must be relied on to give notice of the more extended claim. Siich facts cannot be regarded as amounting to an open and visible appropriation of the land in the one case unless amounting to such appropriation in the other. That Knox, having been in possession without color of title, under a claim restricted to the inclosed land, could not extend his possession so as to include the 354 acres, by continuing to occupy only the inclosed land, though under recorded deed and claim to the entire 354 acres, is definitely determined by the decisions in the cases of Titel v. Garland, 99 Tex. 206, 87 S. W. 1152, and Holland v. Nance, 102 Tex. 183, 114 S. W. 346.

As recited in the opinion in Titel v. Garland, supra, Titel had claimed and held actual possession for three years of 12 acres out of a tract of 640 acres owned by Garland. Titel then changed his claim to 160 acres of the 640 acres, including the 12 acres, and thereafter occupied and used the 12 acres as before, wMle claiming the 160 acres. Holding that he acquired no title to the 160 acres, Chief Justice Gaines declares:

“It would seem that when one purposes to hold the land of another, which he has neither occupied nor inclosed, by virtue of the statute of limitations, it should appear that he has exercised some acts of ownership over some definite part thereof calculated to apprise the owner that he is asserting ‘a claim of right’ thereto and the extent of that claim.” 99 Tex. 206, 87 S. W. 1153.

In Holland v. Nance, supra, it was contended in behalf of Nance, the claimant by-limitation, that while he took actual possession of only 1 ½ acres, beyond which he originally made no claim, yet he acquired constructive possession of a larger tract, including the 1½ acres, when he recorded a deed to the larger tract and began to openly and notoriously claim same, notwithstanding his actual possession continued confined to the 1½ acres. Rejecting this contention, the court said:

“The possession of Nance prior to the recording of the deed did not extend beyond his fence, and it is difficult to see how the recording of his deed would enlarge his possession. The record of a deed does not constitute possession of the land, and, in fact, is not notice of possession. Wheni a party has actual possession of a portion of a tract of land and has a deed for it upon record, that record is notice to all those who claim in opposition to him as to the character of his claim and the extent of it, but without possession adverse owners are not charged with notice of the fact that the deed is upon record or that any claim is made to the land. Before Nance procured the deed and placed it upon record, his possession meant to the true owner of the Latham survey that Nance was claiming nothing beyond his fence. After the recording of the deed, the possession was the same and gave no notice of a greater claim. ⅜ * * Nance did no act which would notify the owners of the Latham survey that he had changed his mind and was claiming the entire tract. The action against Nance was not barred.” 102 Tex. 183, 114 S. W. 348.

The Supreme Court expressly approved the holding of the Commission of Appeals in Houston Oil Co. of Texas v. Holland, 222 S. W. 546, that a purchaser from a claimant, in actual possession, of a tract of 5½ acres of land could not extend his claim to 160 acres, so as to perfect title by limitation to the 160 acres, without such acts on the ground as would notify the. owner of the enlarged claim.

Plaintiffs in error could, with full knowledge of Garlington’s entry and claim, have elected not to sue, without prejudice to their title to the uninclosed land. It would be an unjust and oppressive rule which would require them to sue, in order to protect their title to the uninclosed land, so long as the most careful inspection of the ground would have given them no reason to suspect that their title to any land not under inclosure was in anywise challenged. There was no evidence of title by limitations to the unin-closed land.

Being without proper data to segregate the uninclosed from the inclosed land, final judgment will not be rendered here; but it is ordered that the judgments of the district court and of the Court of Civil Appeals be reversed, and that the cause be remanded for a new trial in the district court. 
      <§=?)For other oases see same topic ana KEY-NUMBER in all Key-Numberea Digests ana Indexes
     