ON SUGGESTION OF ERROR. The suggestion of error raises several points which merit consideration and reply. Comment is made upon our finding that the acknowledgment of the deed from the Davis heirs to W.W. Dearman was adequate to support recordation. We did not set the acknowledgment *Page 818 out in full, and it is contended that the defect is predicated upon that which was omitted. We would substantiate our conclusions were it not for the fact that appellant now asserts that "this is not the point upon which we seek reversal."
Further comment is directed to our assertion that "in view of the finding by the chancellor that neither Dearman nor Daniels knew of and recognized the outstanding title of appellant with a certainty tantamount to waiver . . ." We reexamine this recital only in the interest of accuracy since it was not decision but merely prefatory to our disavowal of a purpose to adopt the rule laid down by the Texas Court.
The chancellor found that "Webster Daniels, at the time he went into possession and at the time of the purchase of this land from W.W. Dearman, did not know that Willie Davis had not signed the deed." It was further found "that they (Wallace E. Davis and Webster Daniels) never recognized the interest of Willie E. Davis." It could be found from the record that Dearman knew that Willie E. Davis had not signed the deed, and therefore an inadvertence may be seen in the statement that Dearman did not know of this omission, yet the record bears out the conclusion that he did not accept or recognize any "outstanding title" in appellant. The point, however, is rendered moot in view of the actual bases for our findings as hereinafter elaborated.
The remaining suggestions of error challenge our right to approve the finding of the chancellor that Daniels paid to or for the account of appellant $75 which was to be applied upon the purchase by appellant from L.W. Cameron of a home for appellant's mother. Regardless of the literal exactness of the statement that the chancellor found that a "demand" was "made by appellant of Daniels of a balance of $75 asserted to be due upon the original purchase from the Davis heirs," the record shows that appellant and his mother went to see Dearman to demand his balance from him. He referred them to his *Page 819 grantee Daniels. The latter did comply with the demand or request of a payment, and the chancellor's finding that this amount was a balance due upon the "original purchase from the Davis heirs," is amply supported. This amount was not paid directly to appellant but to the grantor, Cameron, for appellant's account.
As stated by us in our former opinion "The foregoing incidents are set out merely in order to complete the picture presented by the record." Our decision related, however, to the effect upon the missing cotenant of the execution and recording of a warranty deed by the other cotenants. The effect of such warranty deed to the whole interest was to challenge the absent cotenant with notice, and to strengthen the claim of the grantee and his successors in occupancy to title by adverse possession. We stated, "the execution and recording of the warranty deed by the cotenants to a stranger to the title in 1931 set in motion an adverse claim against appellant which was thereupon made available to the grantee, who by implementing this claim by actual adverse possession through himself and his successors in title for a period beyond the statutory limitation, matured his disseisin into complete ownership." It was not our purpose to adjudge the effect of such deed absent such occupancy.
The record shows, and the chancellor found, that Wallace E. Davis, through his tenant, entered into actual occupancy in November 1934, which was more than ten years prior to the filing of the bill herein. Such adverse occupancy found to be open, hostile, and notorious needs no deed to support it. Were the extent of such acquired title open to question, the deed of 1931 would be available as color of title to identify such extent.
Overruled. *Page 820