
    STEPHENS v. HOUSE et al.
    (No. 393-3597.)
    
    (Commission of Appeals of Texas, Section A.
    Feb. 21, 1923.)
    1. Adverse possession <@=»l 15(1) — Presumption of deed from -long claim of ownership and noncfaim by ostensible owner is question for jury.
    A presumption of the execution of a deed from long and notorious claim of ownership, nonclaim by the ostensible owner, and acquiescence in the claim of the adverse party, is a question of fact for the jury, but conditions surrounding the claim must be considered in arriving at the question whether the issue should be so submitted.
    2. Tenancy in common @=»I6 — Possession as tenants in common held not basis for such'adverse possession as would raise presumption of deed from one tenant to another.
    The possession of one tenant in common cannot be used as a basis for such adverse possession or assertion of antagonistic claim as would raise a presumption of tbe execution of a deed by one tenant to another.
    3. Tenancy in common ig=»l5( 10) — Recitals in deeds admissible to define extent of claim at time of execution.
    As eliminating presumption of a conveyance to tenants in common of land, recitals in deeds of the latter to a third person that they were heirs of O. and limiting their conveyance to include “the balance due the parties of the first as heirs of” O., were admissible to define the extent of their claim at tbe time they executed the deeds.
    4. Tenancy in common <§==>!6 — Knowledge imputed to co-owner to establish acquiescence'.
    The doctrine that knowledge iá necessary to establish acquiescence, as a foundation for a presumption of a grant, cannot be extended to those cases where it is necessary to impute knowledge to sustain acquiescence, but applies where co-owner does not live near the land, and there is no evidence that co-owner knows anything about the possession of tbe land.
    Certified Questions from Court of Civil Appeals of Eirst Supreme Judicial District.
    Action by Susan Stephens- against H. ,C. House and others. Erom a judgment for defendants, plaintiff appealed to the Court of Civil Appeals, which certified questions to the Supreme Court. Questions answered.
    L. C. Kemp and Carothers & Brown, all of Houston, for appellant.
    Tharp & Tharp, Baker, Botts, Parker & Garwood, S. E. McHard, and A. R. & W. P. Hamblen, all of Houston, for appellees.
    
      
       Rehearing denied March 28, 1923.
    
   RANDOLPH, J.

The following statement and certified questions from the Court of Civil Appeals have been submitted to us for consideration:

“The appellant brought this suit against tbe appellees and a number of other defendants, to recover an undivided one-sixth of a league of land granted by tbe Republic of Texas to Mary Owens, and lying partly in Harris and partly in Montgomery county. Tbe appellant de-raigns title under Patrick Reels, who was a son of the original grantee, Mary Owens. The ap-pellees claim title under the other children and grandchildren of the original grantee. At her death in 1S37, Mary Owens left surviving her five children, viz.: John Owens, William Owens, James Owens, Mary Owens, and Patrick Reels, and five 'grandchildren, viz.: Emily Armstrong, Alexander Armstrong, William Morris, John Morris, and Sarah Ann Kilgore, who were children of Delilah Owens, a daughter of Mary Owens, who predeceased her mother.
“There is no evidence that William or James Owens ever lived in Texas. One of these sons is shown to have been living in Louisiana in 1853, and tbe residence of tbe other is not shown. If neither of them were residents of Texas at the time of their mother’s death, under the law then in force here neither inherited any interest in the land, and the resident heirs took title to all of it. No claim to any interest in the land appears to have been made by either of these sons or their heirs.
“On February 9, 1838, John Owens, purporting to act as administrator of bis mother’s estate, and also claiming to act for tbe heirs, entered into a contract with Burch and Cara-her, whereby Burch and Caraher agreed to locate the league and labor to which Mary Owens was entitled, and have same surveyed and pay all expenses of obtaining the title, and John Owens obligated himself, and undertook to obligate the other heirs, to make a conveyance to them of one-fourth of the league and all of the labor whenever the title could be procured from the land office.
“No conveyance was ever made by any of tbe heirs of Mary Owens to Burch and Cara-her, and tbe only evidence tending to show that the contract to locate the land and pay all expenses necessary to obtain the title from the government was performed by Burch and Car-aher is a pencil memorandum on the surveyor’s record in Harris county, stating that the field notes of the survey were delivered to Burch, and that fees of $5 were paid by him, and the fact that after the death of both the administrator of each inventoried, as belonging to the estate of tbe decedent, an undivided one-eighth of the Mary Owens surrey. The Bureh claim was sold by bis administrator for $30 and Car-aher’s claim was sold in 1854 for 25 cents per acre.
“There is no evidence that the contract made by John Owens, as administrator and agent of tbe other heirs of Mary Owens, was authorized or approved by the probate court in which the administration was had, or was ratified by the other heirs, or that they had any knowledge of such contract. The patent to the league and a labor of land was issued to the heirs of Mary Owens October 10, 1845, and the fees of $65.00 for obtaining the title were paid by John Owens.
“Patrick Reels and John Owens “as curators” for Mary Owens, deceased, appeared before the board of land commissioners of Harrisburg county on January 4, 1838, and made the affidavits necessary to obtain the certificate upon which.the land was located.
“Patrick Reels lived in Colorado county and died there prior to November 29,1848, on which date Travis Miller was appointed administrator of his estate. The inventory of the estate of Patrick Reels filed by Travis Miller does not include any land in the Mary Owens survey, and it is not shown that Patrick Reels ever paid any taxes or exercised any acts of ownership over this land. He was married in 1837, his wife predeceased him, and he left as his surviving heirs fours sons, James, George, Joseph, and John, the oldest of whom could not have been more than 10 years of age. After the death of their father, these children were separated and none of them lived to be grown. George died ■when he was 12 or 13 years of age, Joseph when he was between 8 and 12 years of age, John when a mere infant, and James, the last survivor, in 1854 or 1855. On the death of James any interest 1 hat Patrick Reels had in the Mary Owens survey at the time of her death passed to Diana Miller, a half-sister of James. Diana married Henry Obenhaus about 1856, and shortly thereafter she lost her mind as the result of a blow on the head. She died in 1879, leaving as her only heir a son, Jacob Miller, who was married to appellant in 1865. He died in 1894, leaving several children. Appellant thereafter married James Stephens, who is now dead. All of the children of Jacob Miller and appellant have conveyed to her all of their interest in the land in controversy.
“On May 26, 1852, John Owens, Alexander Armstrong, Emily Robinson, and Mary White (formerly Mary Owens), joined by her husband, Henry White, conveyed to W. R. Baker the following described land: ‘One labor of land granted to Mary Owens and the undivided one-fourth of one league of land granted to the heirs of Mary Owens, lying on the north side of the San Jacinto river and bounded Massie on the west and Votaw on the east for a more full description reference is made to the patent of the same.’
“The deed recites that the grantors are" heirs of Mary Owens. On the same day John Owens, Alexander Armstrong, and Emily Robinson conveyed to J. D. Waters an undivided one-fourth of the Mary Owens league. This deed recites that the grantors are heirs of Mary Owens, and describes the land conveyed as follows: ‘An undivided interest in one league of land granted to the heirs of Mary Owens of eleven hundred and seven acres, being the undivided one-fourth part thereof, being the balance due the parties of the first part as heirs of said Mary Owens, after having given one-fourth of said league to W. R. Baker, deed heretofore made.’
“On February 10, 1853, Mary and Henry White conveyed to W. R. Baker a portion of the Mary Owens league described as: ‘All the right and title of the parties of the first part in and to a league of land granted to Mary Owens, lying on the northeast side of the W. San Jacinto river, they being entitled to one-fourth share of the estate of Mary Owdns as heirs and they having heretofore conveyed an undivided fourth of their share of said land to W. R. Baker, do now convey.the balance of their interest amounting to 815 acres not transferred. Also the share owned by - Owens who lives in Louisiana, a brother of the said Mary White.’
“In 1849 W. R. Baker purchased the claim of the Burch estate to an undivided one-eighth of the league. In 1854 Ann Earle purchased from the Caraher estate an undivided one-eighth of the league.
“It should have been before stated, that the administration of the estate of Patrick Reels was closed in 1850. The order of the probate court closing the administration and discharging the administrator recites that there was no property for distribution among the heirs.
“After the deed to Waters, before mentioned, he rendered 1,107 acres of the Mary Owens league for taxes for many of the years prior to 1874,- when he sold to Willard Richardson. On September 1, 1856, W. R. Baker sold 2,435 acres of the Mary Owens league to Jacob-Sharp. In 1860, Sharp sold this 2,435 acres to Wilson Bros.
“Baker began to render this land for taxes shortly after his purchase from the Owens’ heirs, and it was generally rendered by or assessed in the name of its subsequent owners.
“By a deed of partition executed on March 23, 1880, by T. H. Wilson, John E. Wilson, J. F. Wilson, W. R’. Baker, Louisa B. Richardson, and Ann Earle, all of the Mary Owens league was partitioned and conveyed. By this deed one-fourth of the league, 1,107 acres, described by metes and bounds, off the south end of the league, was set aside and conveyed to Louisa B. Richarson. A tract of 336 acres adjoining the Richardson tract was set aside and conveyed to W. R. Baker. Wilson Bros, were given a tract of 2,435 acres, and the balance of the survey was set aside and conveyed to Ann Earle. A year or two prior to this deed of partition, several saw mills had been established on and near the Mary Owens survey, and timber from the survey was sold to these mills by the parties to the deed above mentioned before the execution of the deed, and the proceeds of such sales divided between the grantors in the proportion-of the interest claimed by them in the.survey in their subsequent deed of partition. After the execution of this partition deed, a number of sales of land on the survey were made by the respective parties to said deed, and they and those holding under them have continued from that time to claim all of the survey, and have exercised every act of ownership thereof.
“The plaintiff knew nothing of the Owens league and never knew that her first husband, Jacob Miller, ever owned any interest therein until shortly before this suit was brought. Jacob Miller lived and died in Colorado county, and there is no evidence from which it can be reasonably inferred that he ever knew anything about the Mary Owens survey, or had any idea that he owned any interest therein through inheritance under Patrick Reels. Nor is there any evidence tending to show that the children of Jacob Miller had any knowledge of their interest in the survey until they conveyed to their mother, plaintiff herein, a short time before this suit was filed.
“Th'e case was submitted to a jury in the trial court upon special issues. Issues Nos. 13 and 14 were as follows:
“Special issue No. 13. Did or did not Patrick Reels make a transfer or execute a deed of conveyance of his interest, if any, in the land in controversy, or the certificate by which it was located, to any one or more of the following persons, to wit: John Owens, Mary White, Alexander Armstrong, Emily Robinson, and W. R. Baker? Answer according as you find the facts to be.
“ ‘Special issue No. 14. If you have answered special issue No. 13 in the affirmative, and only in that event, then you will answer this question: Who were the persons or person to whom this transfer or conveyance or deed was executed? Answer as you find the facts to be.’
“To special issue No. 13 the jury answered, ‘Yes,’ and to No. 14 they answered, ‘John Owens, Alexander Armstrong, Emily Robinson, Mary White (Henry White).’
“Appellant assails the action of the court in submitting these questions and the answers of the jury thereto, 'on the ground that the evidence does not raise such issues, and the findings of the jury are not supported by any evidence.
“In the opinion of this court, these assignments should be sustained. As we understand the decisions of our Supreme Court, a grant will not be presumed from the long possession and use of land, unless the evidence in the particular case is sufficient to raise the reasonable inference that the person or persons from whom the grant is claimed knew of and acquiesced in the adverse claim and use of the land. The acquiescence of the apparent owner in the adverse claim and acts of ownership is the strongest circumstance in support of the presumption or inference of a grant from such owner, and, unless the evidence is such that such acquiescence can be reasonably inferred, no grant can be presumed. There can be no acquiescence without knowledge. No one can be held to have acquiesced in a situation or claim of which he was ignorant.
“We think the evidence in this case not only fails to raise the issue of acquiescence, but overwhelmingly, if not conclusively, negatives any acquiescence by Patrick Reels, or any of those to whom his title descended, in the adverse claim and use of the land. We do not feel at liberty, however, to reverse the judgment of the trial court upon this ground, because, on a former appeal of this cause, the Court of Civil Appeals for the Ninth District, in reversing the judgment of the trial court upon another ground, held that the evidence, which was the same on that trial as on the one from which this appeal is prosecuted, raised the issue of a presumption of a grant, and that such issue should have been submitted to the jury. House v. Stephens (Tex. Civ. App.) 198 S. W. 384.
“Under the rule announced in the case of Railway Co. v. Belew, 26 Tex. Civ. App. 8, 62 S. W. 99, while the decision of the Court of Appeals for the Ninth District is not res ad-judieata of the question, the only proper course for this court to now take is to follow that decision or to certify the question for your decision. Being unable to agree with the decision of this question on the former appeal, we feel constrained to certify the question to your court.
Upon the facts before stated, we respectfully submit for your determination the following questions: Eirst. Do the facts stated raise the issue of a grant from Patrick Reels to any of the persons found by the jury to have received such grant? Second. 'Do the facts stated raise the issue of a grant from Patrick Reels, or any of those to whom his title descended, to any of the persons found by the jury to have received such grant, or to any of appellees’ predecessors in title?”

A presumption of the execution of a deed from long and notorious claim of ownership, nonclaim by the ostensible owner, and acquiescence in the claim of the adverse party, is a question of fact for the jury, but conditions surrounding the claim must be considered in arriving at the question as to whether or not the issue should be submitted to the jury. In the case of Walker v. Caradine, 78 Tex. 492, 15 S. W. 32, the rule is laid down governing such presumptions as follows:

“The presumption of a grant which arises from the long-continued possession and use of real property is a presumption of fact, and can only have a controlling effect upon the title when all the circumstances in proof are consistent with the existence of a conveyance. Taylor v. Watkins, 26 Texas, 688. It is not arbitrarily indulged in favor of long adverse possession merely, but should only be given effect when the circumstances in proof in the particular case are sufficient to induce the belief that a legal conveyance under which the possession has been taken and held has been in fact made.”

John Owens et al., who conveyed the land in controversy to W. R. Baker, and in whom it is insisted that the title of Patrick Reels was vested by presumption of conveyance from him, were coheirs of Mary Owens with Patrick Reels. As it has been held by our Supreme Court that possession is not indispensable to the indulgence of such presumption, the claim of John Owens et al. is placed on the same footing as though they were in possession at the time of the conveyance to W. R. Baker. If this is correct, they being tenants in common with Patrick Reels, such possession or claim was in harmony with Reels’ claim, and could not be used as a basis for such adverse possession or assertion of antagonistic claim as would raise the presumption of the execution of a deed by Reels to them. Bullard v. Barksdale, 11 Ired. (33 N. C.) 464; Ricard v. Williams, 7 Wheat. 59, 5 L. Ed. 398; Moody v. Butler, 63 Tex. 213.

In the case of Le Blanc v. Jackson, 210 S. W. 691, Judge Montgomery, speaking for the Commission of Appeals, says:

“We have found no case in this state where the presumption ,of the execution of a deed from one tenant in common to another has been indulged. Doubtless a case might occur in which such presumption would be authorized. The existence of the relationship of tenants in common robs the possession and use of the property by one of them of all probative force as against the other joint owners. The possession is lawful, and from it alone no inference of adverse claim arises, and therefore no inference of title as against the other joint owners. These principles have been announced in numerous cases in Texas, where title .was asserted by limitation by onp tenant in common as against the other tenants in common, and it is equally applicable where the presumption of a deed is sought to be proved by such possession and use. The Supreme Court of "West Virginia; in a ease involving this question, said:
“ ‘There can be no adverse claim or title, unless there is actual ouster and notice or knowledge of hostile claim brought home to the other .party. Mere silent possession by one, no matter how long continued, does not destroy the. right of another, unless there be ouster, or adverse claim with notice to the other of adverse claim. Justice v. Lawson, 46 W. Va. 163, 33 S. E. 102; Cochran v. Cochran, 55 W. Va. 178, 46 S. E. 924; Cooley v. Porter, 22 W. Va. 121: Boggess v. Meredith, 16 W. Va. 1.
“ ‘ “"Where the possession of one is entirely consistent with title in another, it cannot give rise to a presumption of a conveyance from the latter.” 22 Am. & Eng. Encyc. of Law (2d ErU 1290.
“ ‘Rieard v. Williams, 7 Wheat. 59, 5 L. Ed. 598, says that this presumption can never arise “where all the circumstances are perfectly consistent with the nonexistence of a grant.” As the possession of one joint tenant is consistent with that of another — is in fact his possession — the law raises no presumption that the other has conveyed his title to the one in possession.’ Logan v. Ward. 58 W. Va. 375, 52 S. E. 401 [5 L. R. A. (N. S.) 156].”

There is another controlling fact which we think eliminates the question of any presumption of conveyance from Patrick Reels, and that is the very claim made in the deeds from John Owens et al. to W. R. Baker. In one deed the parties recite that they are the heirs of Mary-Owens, and in . the other tney expressly limit their conveyance to include “Being the balance due the parties of the first part as heirs of said Mary Owens. * * *»

These recitals in the deeds to Baker are admissible for the purpose of defining the extent of their claim at the very time they executed the deed to Baker. Moody v. Butler, 63 Tex. lower page 212; Magee v. Paul, 221 S. W. 256.

Justice Greenwood, in the case of Magee v. Paul, 221 S. W. 256, holds:

“Since it is not consistent with human experience for one really owning property of value * * * to acquiesce for a long period of time in an unfounded, hostile claim, the rule is sound which permits the inference that an apparent owner has parted with his title from evidence, first, of a long asserted and open claim, adverse to that of the apparent owner; second, of nonclaim by the apparent owner; and, third, of acquiescence by the apparent owner in the adverse claim.”

In Walker v. Caradine, supra, the Supreme Court holds:

“Isaac Caradine having died before the certificate was issued in the first instance, and the presumption being that there had been no transfer before the land was patented, the defendant must rely for a judgment upon the presumption of a grant from his heirs. We are concerned in this court only with Mrs. Sharp’s title. 'Her father moved with her to Louisiana, and died while she was very young. She has ever since resided there. If she was ever in Texas the evidence does not show it. If she ever knew that a certificate had been granted to her father for land in Texas or that a patent had ever issued to him to a survey of land in the state until a short time before this suit was brought, it is not disclosed by the record. If there is any circumstance which tends to prove either that she had a knowledge of her rights or of the possession and claim of the .defendant and of those through whom he derives his title, it does not appear by the testimony. Now presumptions of grant have usually been applied to incorporeal hereditaments. Eor example, where the owner of land has seen another use a way over it for 20 years, and where such use ñas 'been inconsistent with the idea that it did not have a legal origin, the presumption of a grant may become conclusive. But it is apparent that in such a case the presumption derives its main support from the acquiescence of the owner of the fee. So also if one has the apparent title to a tract of land, knowing that another has taken adverse possession, acquiesces in such adverse enjoyment of the property for a period of 20 years, a jury would be justified in presuming a grant, in the absence of circumstances tending to a contrary conclusion. But in both of these cases it is apparent that the presumption has its foundation in the acquiescence of the holder of the apparent title. There ean he no acquiescence in an adverse possession without a knowledge that it exists.”

Knowledge being held necessary to establish acquiescence, we are not willing to extend the doctrine to those cases where it is necessary to impute knowledge to sustriin acquiescence. It might be that, if the owner resides in the immediate vicinity of the land, and that the other party exercised dominion over the land arid his claim was notorious, that the knowledge of same would be imputed to the owner. But in this case, where the parties do not reside in the neighborhood of the land, and where they know nothing of it, residing in another county, and there being not even a scintilla of evidence that their ancestors had any knowledge of the claim, knowledge should not be imputed to them of the adverse claim. In this case there is another feature of the evidence which we think concludes the right of appellees to recover. There is no evidence of any long-asserted claim by John Owens et al. or any acts of ownership, or any exercise of dominion over the land. The first time they appear in the evidence is when they convey to W. R. Baker. Erom that time on there is an assertion of ownership and the payment of taxes and receipt of some revenue from the land by Baker and his vendees, but we do not think that this can be made to relate back to John Owens et al. as heirs of Mary Owens for the purpose of perfecting a title in their favor by presumptive deed from Patrick Reels.

We therefore recommend that the questions propounded by the Court of Civil Appeals be answered in the negative.

CURETON, C. J.

The opinion of the Commission of Appeals answering certified questions adopted, and ordered certified to the Court of Civil Appeals. 
      <®=3For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     