
    WICKIZER v. WILLIAMS.
    (No. 5376.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 25, 1915.)
    1. Adverse Possession @=25 — Elements— Possession by Tenant.
    Tlie possession by a tenant is sufficient to support a claim of adverse possession under the 10-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 116-120; Dec. Dig. @=
    2. Adverse Possession @=46 — Elements— Continuous Possession — Interruption-Intent.
    Temporary vacancy of the promises, when there was no intent to abandon them, will not prevent the running of the 10-year statute of limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 232-254; Dec. Dig. @= 46.]
    3. Trespass to Try Title @=47 — Reliee— Apportionment oe Tract Claimed.
    Where a petition in trespass to try title claimed title by adverse possession to a specific 160 acres, including the plaintiff’s improvements, and asked recovery of that tract, but also asked, if plaintiff be hold not entitled to the particular tract, that , commissioners be appointed to apportion 100 acres to him, including his improvements, out of the survey, and the evidence showed possession and improvements with a claim to 160 acres, but did not show the boundaries of the particular tract, nor that to give to plaintiff the tract claimed in the petition would be a fair apportionment between him and the owner of the balance of the tract, it was proper for the court to appoint commissioners to make the apportionment.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 69-71; Dec. Dig. @=47.]
    4. Trespass to Try Title @=27 — Parties— Interest.
    Where part of the land claimed by plaintiff by adverse possession had been conveyed to his attorneys, those attorneys were not interested adversely to defendant, in trespass to try title, to segregate the particular tract claimed by the plaintiff from the entire tract, and wore not necessary parties to that action.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 33; Dec. Dig. @=27.]
    On motion for rehearing.
    Motion overruled.
    For original opinion, see 173 S. W. 288.
   RICE, J.

Appellant has filed a motion for rehearing, assailing the judgment heretofore rendered by this court herein for many reasons, but chiefly on the following alleged grounds: (1) That appellee’s possession was not continuous for a period of 10 years prior to the institution of this suit; (2) that, ap-pellee having made an acknowledgment of tenancy prior to the running of the statute, he was thereby prevented from setting up title by limitation; (3) that there was a disclaimer on the part of appellee, for which reason he was estopped from setting up such title; (4) that the affidavit and acknowledgment of tenancy made by appellee, Williams, operated as a release and relinquishment of his claim to the land; (5) that the pleadings and evidence did not authorize the verdict and judgment rendered; and (6) that the court erred in holding that Lewellyn and Foster were not necessary parties to the suit.

We have carefully reviewed the entire record, together with the authorities cited by appellant, and have reached the conclusion that the motion for rehearing is not well taken. Without undertaking to detail the evidence as to the continuity of appellee’s possession, we think the testimony shows that he and his wife went into possession in 1896 or 1897 of the part of the survey sued for, erecting a house and clearing a part of the land, which they inelosed and put in cultivation; that they raised crops upon the premises during each year from that time until this suit was filed, which was in December, 1912; that while they were absent from the place during parts of the years 1898 and 1899, yet they had tenants upon it during said period, who cultivated and made crops thereon; that after 1899 the evidence on tlie part of appellee shows that he and his wife were continuously in possession from that time until this suit was filed, adversely claiming 160 acres thereof, including the improvements. It is true that in 1904 the premises were occupied about two months by some tie cutters with his consent; but, within two weeks after they abandoned possession, he, together with his wife, returned to his home, where he continued to live, as above stated. This evidence of himself and wife is corroborated by other testimony; and, while there is a conflict in the evidence with reference to these matters, still the jury have seen fit to return a verdict in favor of ap-pellee, and the trial court has declined to disturb it.

The evidence, if credible, is sufficient upon which to predicate a verdict in their behalf under their plea of 10-year limitation. The possession by a tenant is sufficient to support the plea of limitation under the 10-year statute. See Carlo0ck v. Williard, 149 S. W. 363. And peaceable and adverse possession of only a portion thereof, with claim to 160 acres, gives title by limitation. See Fischer v. Giddings, 74 S. W. 86. The acts constituting adverse possession are not always susceptible of definition; each case must depend upon its own facts. See Dunn v. Taylor, 107 S. W. 952. Temporary vacancy, when it is evident that there was no intent to abandon the premises, will not prevent the running of the statute; and the proof in this case showed that there was no such intention, the parties always claiming it as their home. See Collier v. Couts, 45 S. W. 485.

The issue as to whether or no appellee had made an acknowledgment of tenancy prior to the expiration of the 10-year period of limitation was clearly and distinctly submitted to the jury for their consideration, and their verdict determined that question adversely to appellant; and, there being ample evidence to support their conclusion in this respect, appellant has no just ground of complaint on this score.

It is not asserted that appellee had filed any disclaimer, but it is contended that his written acknowledgment of tenancy, made subsequent to the ripening of his title by limitation of 10 years, would have this effect. We think the authorities in this state amply support the conclusion of this court that a mere acknowledgment of tenancy after the title had ripened under the 10-year statute would not defeat appellee’s title to the land. A written acknowledgment of tenancy is of no greater dignity than a verbal statement to that effect. Such statement, whether written or verbal, may be used as evidence on the question as to whether appellee’s possession was adverse or not. See Barrett v. McKinney et al., 93 S. W. 240; Williams v. Rand, 9 Tex. Civ. App. 631, 30 S. W. 511; Williams v. City of Galveston, 58 S. W. 552; Bruce v. Washington, 80 Tex. 368, 15 S. W. 1104; Thayer v. Clark, 47 Tex. Civ. App. 61, 104 S. W. 196.

Nor does the affidavit in the present case, as contended by appellant, operate as a release to the land in question. It is a mere acknowledgment of tenancy, and the case of Davis v. Moye, 155 S. W. 962, does not support appellant’s contention in this respect, because in that case Moye had released and relinquished all claim to the land by the instrument in question for a valuable consideration, and that suit was brought by him against Mrs. Davis, the record owner of the land, for the purpose of setting aside this release on the ground of fraud, which plea the court held was not sustained by the proof.

It is true that in the amended petition, upon which appellee went to trial, he sought to recover a specific 160 acres described by metes and bounds, including his improvements; but it is also true that he prayed in the alternative that, should he be not entitled to recover and have awarded him said 160 -acres so described, then that he have and recover of the defendant title and possession to 160 acres out of the Hunter survey, to be so segregated as to include his improvements, and asking, in such event, for the appointment of commissioners to partition same in accordance with such decree, requiring said commissioners to report their action to the court, and such commissioners were appointed. The evidence showed that plaintiff’s improvements were situated on the northeastern part of the survey, but only showed that he claimed 160 acres of said land, including his improvements, without designating any specific portion. The verdict of the jury was:

“Wo, the jury, find in favor of plaintiff for the land in controversy upon his plea of limitation of ten years.”

Upon which judgment was rendered in his favor for 160 acres out of the Hunter 640-acre tract, to be so surveyed as to include his improvements, which improvements are located on the northeast portion of said tracts, describing the Hunter survey by metes and bounds, and appointing commissioners to so apportion the land and report their action to the court. This proceeding followed the holding of the Supreme Court in Louisiana & Texas Lumber Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110, and other holdings of the Courts of Civil Appeals, made in accordance therewith. See Louisiana & Texas Lumber Co. v. Kennedy, 142 S. W. 990; Same v. Stewart, 130 S. W. 199; Ball v. Filba, 153 S. W. 685; Bering v. Ashley, 30 S. W. 838. In Louisiana & Texas Lumber Co. v. Stewart, supra, Mr. Justice Pleasants, in discussing the holding in Louisiana & Texas Lumber Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110, says:

“We think this opinion settles the right of a claimant under the 10-year statute of limitation who has been in actual possession of a portion of a large tract of land claiming 160 acres thereof, without any deed or other muniment of title fixing the boundaries of his claim or without having such boundaries otherwise definitely fixed, to acquire title to an undivided 160 acres of such large tract including- his improvements, and have the same designated and set apart to him by the court. If such occupant claims a specific 160 acres, he must sufficiently describe same in his plea to identify it, and must prove his open and notorious adverse possession and claim for 10 years of the identical land so described, or must show by pleading and proof that the setting apart to him of such specific 160 acres will not be an inequitable partition of the large tract between himself and his co-owner. If such occupant fails to show that he has held adverse possession of the specific tract claimed by him for 10 years, and also fails to show that it would be fair and just to his co-owner to have the specific 160 acres claimed by him set apart to him by the court, he would nevertheless bo entitled, under proper pleading, to have the court designate and set apart to him such 160 acres as the equities and justice of the case require. If necessary, the court might appoint commissioners for this purpose, and if there was sufficient evidence to authorize it a judgment could be rendered by the court, without the aid of commissioners of partition, setting apart to the occupant such designated 160 acres as in the judgment of the court would be just and equitable.”

In the instant case, if the proof had designated what particular portion of the Hunter survey appellee claimed, including his im-pirovements, and there had been evidence showing that it would have been fair and equitable to him to set aside to him said portion, then, under the first count of the petition, in view of the authorities above referred to, the court could have awarded said tract to him. Such was not the case, however. The proof failing to show' that he had adverse possession of any specific portion of said tract, outside of his improvements, and also failing to show that to set aside any par-tieular portion thereof would be just and fair to him, it therefore became necessary, under the pleadings, evidence, and verdict, to appoint commissioners to set apart 160 acres of said land to him, as was in fact done. The other cases cited by appellant (except Titel v. Garland, 99 Tex. 201, 206, 87 S. W. 1152, and Giddings v. Fischer, 97 Tex. 184, 77 S. W. 209) do not deny such right; but those two cases were not followed by Mr. Chief Justice Brown in his opinion in Louisiana & Texas Lumber Co. v. Kennedy, 103 Tex. 297, 126 S. W. 1110, on this point; but the holding in Giddings v. Fischer was therein limited to the facts of that case, and Titel v. Garland was indirectly overruled thereby, thus following the rule formerly existing in this state prior to the decision in Giddings v. Fischer and Titel v. Garland, supra.

In addition to what was said in the original opinion with reference to the necessity of making Lewellyn and Foster parties, it may be added that this was not a suit to partition the 160-acre tract for which appellee brought suit, and in which Lewellyn and Foster had an interest, but was only -for the purpose of segregating said 160 acres from the 640-acre tract, no part of which appellee claimed, except said 160 acres; hence they were not adversely interested to appellant.

Believing that the motion for rehearing should be overruled, it is so ordered. 
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