By the first and second assignments of error it is insisted that the court erred in rendering judgment in favor of the appellees for the 50 acres of land, "because the undisputed testimony shows that the defendants had lived on the premises for over 30 years and had asserted claim thereto against the entire world, and the same had been under fence for over 10 years."
The evidence does show that the defendant Frances London and her son Cull Gordon have lived on the premises for about 30 years to the time of the suit, and that the 50 acres had been fenced for over 10 years; but the evidence is conflicting as to whether the appellants were on the 50 acres in controversy as owners or as tenants. The appellants claim by the evidence that Frances London purchased the particular 50 acres from Mark Gordon over 20 years ago, was put in possession, and made valuable improvements thereon. A purchase of this character, accompanied with possession and the making of improvements, would give title to the land, and appellants could recover it. Lowry v. McDanial, 58 Tex. Civ. App. 424,124 S.W. 710. But any purchase of or advancement of payments on the land is emphatically denied by the evidence, as seen, of Monroe Gordon, and the evidence of the appellees also is that the appellants were tenants all the time they have been on the land till the death of Mark Gordon. The court settled the conflicting evidence in the finding that "the proof shows that they [defendants] were tenants of the said Gordon at will or by sufferance," and that "the proof further shows that said Mark Gordon never knew during his lifetime of any claim of ownership by either Cull Gordon or Frances London." This court is bound by the trial court's finding of fact upon conflicting evidence, and is not warranted in setting it aside. The finding of the court that the appellants "were tenants of the said Mark Gordon at will or by sufferance" is a finding against the evidence of the appellants that they were purchasers and had a legal interest in the title to the land, and, being tenants on the land, according to the finding, the appellants would not be in a position to deny the landlord's title; for the creation of the complete relation of landlord and tenant has the effect in law of estopping the tenant to deny the title which he has admitted to exist in the landlord. Tyler v. Davis, 61 Tex. 674; McKie v. Anderson, 78 Tex. 207, 14 S.W. 576; Fowler v. Simpson, 79 Tex. 611, 15 S.W. 682, 23 Am.St.Rep. 370.
It is well settled that a tenant in possession cannot deny the landlord's title without disclaiming the landlord's title and proposing to hold in his own right or under title hostile and adverse to that of the landlord. Buford v. Wasson, 49 Tex. Civ. App. 454, 109 S.W. 275. Unless these facts existed, there would not be legally any adverse possession of the premises by the tenant upon which he could predicate a title in himself by limitation, and the record in this case is not without evidence to support the trial court's conclusion of fact that "the defendants have failed to show peaceable, adverse, and notorious possession against the right of the plaintiffs"; for the witness Monroe Gordon testified:
"Ever since 1890 he [Cull Gordon] has paid rent up to about 8 years ago. He rented as much land as he could work all over the field, anywhere he wanted to work. * * * Cull and his mother [Frances London] stayed there about 20 years. They have been living there using this land and working on the halves and paying rent." *Page 718
Is this evidence true? That is a question this court cannot pass on, but must take as true in view of the findings of the trial court. Payment of rent is merely evidence of permissive occupation, and, having paid it, the tenancy is acknowledged. If the tenancy in legal effect was recognized by the appellants up to about eight years ago, then the court's conclusion was correct that the appellants have failed to show a completed limitation title by such adverse possession as the law required. The assignments are overruled.
The third assignment is disposed of in the finding of the trial court that the appellants were on the land as tenants of Mark Gordon.
The evidence being conflicting as to whether the appellant Frances London was the owner, or Frances London and Cull Gordon were tenants, this court is, as heretofore stated, bound by the finding thereon of the trial court.
The wording of the finding challenged by the fourth assignment of error is, we think, as contended by the appellants, erroneous. But in view of the legal effect of the court's other findings it becomes immaterial. The legal effect of the finding by the trial court that appellants "were tenants" would be to estop the tenants from asserting title as against the landlord.
The judgment is affirmed.