
    KIRBY LUMBER CO. v. CONN et al.
    (No. 3527.)
    (Supreme Court of Texas.
    June 28, 1924.)
    1. Adverse possession <&wkey;40 — Peaceable and adverse possession for ten years necessary to acquire title.
    Eor one; having neither title nor color of title nor registered deed, to acquire exclusive title which will support action for recovery of the land, he must have had peaceable and adverse possession for not less than ten years.
    2. Adverse possession <&wkey;68 — Appropriation of land under claim of right essential.
    An essential of required adverse possession is appropriation of land under claim of right.
    3. Adverse possession &wkey;o68 — Mere trespasser may continue appropriation for purpose of acquiring another’s land.
    
    One may hold, land under-claim of right though he enters as a trespasser and continues his appropriation for the express .purpose of acquiring that which he knows belongs to another, but without intent to claim land as'his own possessor can never acquire title thereto.
    4. Adverse possession &wkey;o 107 — Claimant’s right to acquire title under statute limited to enough additional land to make up 160 acres.
    Where land in claimant’s actual possession is less than 160 acres, he cannot acquire title to more than 160 acres, under Rev. St. art. 5676, in absence of written memorandum of title fixing boundaries, and right of recovery is limited to his improvements or acreage actually inclosed and enough additional land to make 160 acres which is to be segregated by the court.
    5. Adverse possession &wkey;>l 07 — Additional land to make up 160 acres outside improved or inclosed land held to be in claimant’s constructive possession.
    Under Rev. St. art. 5676, if claimant by adverse possession claimed an undefined 100 acres to include improvements or inclosed acreage in actual possession, that portion of the undefined 160 acres not improved or inclosed would be in his constructive possession or if tract had definite boundaries and no more than 160 acres, where he had no registered memorandum of title, his constructive possession would cover part not reduced to actual possession.
    6. Adverse possession &wkey;>l07 — Part possession under claim of undefined 160 acres-held not to support claim to specific 160 acres.
    Where claimant by adverse possession was in actual possession of 15 or 20 acres only claiming an undefined 160 acres, he acquired no title to a specific 160 acres .subsequently surveyed by him.
    
      7. Trespass to try title c&wkey;6(()— Claimant must recover, on strength of own title.
    Claimant of land 'by adverse possession must recover on strength of his own title, and not by lack of title in his adversary.
    8. Advérse possession &wkey;ril5(5) — Whether claimant’s possession was adverse held for jury.
    Conflicting evidence of claimant’s acknowledgment of tenancy raised jury issue as to whether claimant’s possession was adverse.
    9. Appeal and error &wkey;s930(3) — Issue not deemed found to support judgment when recovery made to depend on different finding.
    Issue whether claimant acquired title by adverse possession after survey in 1907,- not being submitted nor requested, held, under Rev. St. art. 1985, not deemed found for claimant who recovered judgment because by withholding objection to question of adverse possession for 10 years next after 1896' claimant sanctioned charge making right to recover depend, on question submitted, and waived right to recover on other theory.
    Error to Court of Civil Appeals of Ninth. Supreme Judicial District.
    Action by Mrs. S. N. Conn ¿id others against the Kirby Dumber Company. Judgment for plaintiffs was affirmed by the Court of Civil-Appeals (222 S. W. 342), and defendant brings error.
    Reversed and remanded for new trial.
    Andrews, Streetman, Logue & Mobley, of Houston, for plaintiff in error.
    Warren & Conn, of Houston, for defendants in error.
   GREENWOOD, J.

Defendant in error Charles Levias, joined by .bis wife, Ella Le-yias, sued plaintiff in error, the Kirby Lumber Company, and John H. Kirby, to recover 160 acres of land, part of the James Gray survey in Newton county, and specially pleaded title under the statute of limitation of 10 years. Defendant in error Mrs. S. N. Conn joined in the petition of Charles Levias and wife, averring that plaintiff in error had unlawfully converted a fence and pine timber on said tract of land, which belonged to defendant in error Mrs. S. N. Conn, and she sought to recover her damages in the aggregate sum of $4,350 with interest.

The pleadings of plaintiff in error embodied, among'other matters, a general denial and plea of not guilty.

There was evidence that defendant in error Charles Levias occupied and cultivated 15 to 20 acres of the James Gray survey, which embraced more than 1,000 acres, from 1806 until December, 1917, when this sijit was brought. There was evidence that Levi-as moved on the Gray survey in order to get a home and that he built a dwelling on the 15 or 20 acres, which was continuously occupied by himself and family from 1S96 to 1917; that he claimed an undefined 160 acres of the Gray survey to include his improvements, from 1896 until 1907, when he caused the 160 acres sued for to be surveyed; and that since the tract of 160 acres was surveyed he claimed that specific land.

Defendants in error offered in evidence a deed from Charles Levias and Ella Levias to A. L. Shaw, of date April 14, 1908, acknowledged by Charles Levias alone, for a recited consideration of $300 cash, to the east half of Levias’ pre-emption of 160 acres surveyed out of the Janies Gray survey. On April 19, 1910, Charles Levias and Ella Levias conveyed to R. C. Conn all their merchantable timber on the 160-acre tract. On August 20, 1917, A. L. Shaw conveyed to R. O. Conn his entire interest in the 160 acres. Defendant in error Mrs. S. N. Conn is the sole dev-isee under the will of R. C. Conn.

There was evidence that in 1909 Charles Levias had executed a written acknowledgment of tenancy ,to one under whom plaintiff in error claims the land in controversy. •Levias denied that he executed such acknowledgment.

The court instructed the jury that only one question would be submitted for the jury to answer, and that the jury’s answer to that question would furnish the basis for the court’s judgment. Thereupon the court submitted to the jury the following question:

“Do you believe from the evidence that the plaintiff, Charley Levias, has been in peaceable and adverse possession of the land described in the plaintiffs’ petition for a period of ten years next after the year 1896?”

Before the charge was read to the jury, plaintiff in error, by its attorneys, duly excepted thereto on the ground that the undis-the question, and that hence no such question should be submitted to the jury.

The jury answered the question in the affirmative, and judgment was rendered against plaintiff in error and John H. Kirby, in favor of Charles Levias, for the 160-acre tract of land in controversy, except the timber, and against plaintiff in error Kirby Lumber Company in favor of Mrs. S. N. Conn for $3,488.06 and interest, for timber removed from the land. The judgment was affirmed on appeal. 222 S. W. 342.

Blaintiff in error contends that the.Court of Civil Appeals erred in affirming the judgment of the trial court, because based on an affirmative answer to the single question submitted to the jury, when the undisputed evidence required a negative answer to the question.

It seems plain that the jurors must have understood that they were asked to answer whether Levias had been in adverse as well as peaceable possession of the tract of land described in plaintiffs’ petition for the 10 years immediately following 1896. There is nothing ambiguous in “next after the year 1896.” ’This language could not relate to a period beginning some 11 years after 1896. So, it must be accepted that the answer of 'the jury, on which the judgment against plaintiff in error is based, is that Charles Levias had been in peaceable and adverse possession of the 160 acres for which he sued throughout the period of 10 years, commencing with the year 1897. The uncon-tradicted evidence repels’ the truth of the finding.

In order for a person, haying neither title nor color of title nor deed duly registered, to acquire full title, precluding all claims, to real estate in Texas,^which will support an action for the recovery of the real estate, such person must have had peaceable and adverse’possession of the real estate for ndt less than 10 years. An essential of the required adverse possession is an appropriation of the land under a claim of right. One may hold land under a claim of right though he enters as a naked trespasser and continues his appropriation of the land for the express purpose of acquiring that which he knows belongs to another. The mala fides of the possessor is not fatal to his claim of right, Yet, without intent to claim land as his own, no matter how groundless the claim, the possessor can never acquire a limitation title thereto. Craig v. Cartwright, 65 Tex. 423; Holland v. Nance, 102 Tex. 183, 114 S. W. 346; Houston Oil Co. v. Jones, 109 Tex. 90, 198 S. W. 290.

Where land dn a claimant’s actual possession is less than 160 acres, he cannot acquire tjitle to more than 160 acres, under article 5676 of the Revised Statutes, in the absence of a duly registered, written memorandum of title fixing the boundaries of a larger claim. He can acquire nothing without the land claimed. He can claim his improvements or inclosed acreage and enough additional land to make 160 acres, though the boundaries of the 160, acres had not been delined. In such event, even with proper pleadings and proof, he recovers no specific 160 acres of land, which, he may arbitrarily designate. The statute instead simply entitles him, when his possession has ripened into title, as the holder of that which is superior to the claim of the aforetime owner, to recover his improvements or his acreage actually inclosed and enough additional land to make out 160 acres, which it becomes the duty of the court to fairly and equitably segregate from the remainder of the larger tract. Bering v. Ashley (Tex. Civ. App.) 30 S. W. 838; La. & Tex. Lbr. Co. v. Stewart, 61 Tex. Civ. App. 255, 130 S. W. 203; La. & Tex. Lbr. Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110.

By virtue of article 5676, if one claimed an undefined 160 acres, to include the improvements' or inclosed acreage in his actual possession, the portion of the undefined 160 acres not improved or inclosed would be in his constructive possession. Or, by virtue of the same article, one could hold actual and constructive possession of any'tract with definite boundaries which he claimed, provided it did not contain more than 160 .acres Where he had no duly registered memorandum of title. His constructive possession would cover the portion of such tract which was not reduced to his actual possession.

Levias had neither actual nor constructive possession of the precise tract described in his petition, save to the extent of the 15 or 20 acres of which he had actual possession, Prior to the segregation by actual • survey in 1907 of the 460 acres from the remainder of the land. Prior to 1907 Levias asserted no claim of right to anything save an undefined 160 acres to include his improvements. Without actual or constructive possession of the portion of the specific tract sued for lying without the 15 or 20 acres, it was impossible for Levias to have adverse possession thereof prior to 1907; and hence impossible for him to perfect title thereto under the 10 years’ statute of limitation. McBurney v. Knox, 111 Tex. 513, 241 S. W. 1000; Houston Oil Co. v. Ainsworth (Tex. Com. App.) 228 S. W. 187. The petition in this case asserted title in Charles Levias to a specific tract containing 160 acres of land. The jury found that Levias had been in peqceable and adverse possession of that tract for 10 years next after 1896. The evidence discloses an absence of claim to any specific 160 acres until 1907, when it was first carved out of a larger tract by means of a survey. Despite the want of • evidence to support the jury’s finding, it was made the basis of the judgment for Levias. A judgment on such an unsupported finding cannot be uphold.

It cannot avail to support the judgment for the specific 160 acres of land that there was evidence which might, under proper pleadings, have supported a recovery by Le-vias of some tract on the larger survey, to include the improvements made by him, with boundaries to be established by the court. Bering v. Ashley, supra.

Defects in plaintiff in error’s chain of title can be of no avail to the limitation claimant suing as plaintiff in this case. He must recover on the strength of his own title. Though he had become entitled to have the court award to him 160 acres of land to include improvements and though he had brought a proper action to secure such award, he would have had no right in or to any other part of the Gray survey. Had Levias owned an undivided interest in the entire Gray survey his rights would have been quite different, and the Court of Civil Appeals erred in the assumption that any lack of title on the part of plaintiff in error could operate to enlarge Levias’ recovery beyond what it should have been had the record title of plaintiff in error been flawless.

Defendants in error urge that the judgment in their favor should be sustained because the undisputed evidence showed that Levias had peaceable and adverse possession of the 160-acre tract for more than 10 years before this suit was filed. But, while there is evidence tending to show such possession, commencing in 1907, it is neither undisputed nor conclusive. For instance, though Levias denied its execution, yet there was in evidence a written and registered acknowledgment of tenancy, dated in 1909, to plaintiff in error’s predecessor in title, which pur-, ports to have been signed and acknowledged by Levias. Thus there was raised an issue as to whether Levias’ possession of the specific land sued for was adverse or in subordination to the claim now held by plaintiff in error, which only the jury was authorized to determine, unless the parties consented to its adjudication by the court.

But defendants in error strongly insist that, if the issue as to defendant in error Charles Levias having acquired title by peaceable and adverse possession for 10 years after the date of the survey of the 160-acre tract was not submitted to the jury, then, since not submitted and' not requested, such, issue must be deemed, under article 19S5 of the Revised Statutes, to have been found in favor of defendants in error, in order to sustain the trial court’s judgment.

For two reasons, this contention of defendants in error cannot be sanctioned. First, no presumption will be indulged, under article 1985, which is expressly contradicted by the record. By the charge, sanctioned by defendants in error in withholding objection thereto, the court made the right of defendants in error to recover the 160 acres of land depend wholly on the jury’s decision of the question submitted by the court. Second, no other conclusion is warranted in this case than that defendants in error waived any right to recover, under the law as applied to controverted facts in evidence, save as found by the jury in answer to the question submitted to them. Texas Drug Co. v. Cadwell (Tex. Civ. App.) 237 S. W. 976; San Antonio Public Service Co. v. Tracy (Tex. Civ. App.) 221 S. W. 638.

It is ordered that the judgments of the district court and of the Court of Civil Appeals be reversed and that this case be remanded to the district court for a new trial. 
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