I respectfully dissent from the action of the majority of this court in reversing the judgment of the trial court in favor of defendants in error and in rendering judgment for plaintiff in error, for the following reasons:
(1) The undisputed evidence shows that defendants in error were the record owners of the land sued for in this cause; (2) that the only title to such land asserted by plaintiff in error is a limitation title under the five years' statute of limitations; (3) that Dr. Collier, president and general manager of the affairs of the Old River Company, a corporation, leased from D. J. Lawrence under whom defendants in error hold 350 acres of land which includes the land sued for, in the year 1912; that he (Dr. Collier) in the latter part of the year 1912 or the first part of 1913, put J. W. Smith and Charles Fannette on the premises to farm the land, a part of which was farmed and a part used for pasture purposes. Later, in 1915, Dr. Sheffield as a tenant under the Old River Company, moved upon the premises and farmed parts of the land not theretofore farmed under the Old River lease; that while Dr. Sheffield was living on the land he built a garage next to the public road; that he had a negro house on a part of the land but not on the tract claimed by defendants in error. There was no evidence showing that any change was made in the use of the 5 acres sued for while it was under lease to the Old River Company; it was not shown that any fence or other structure was placed on said 5-acre tract while under such lease. Dr. Collier testified that up to the time the Old River Company conveyed to the plaintiff in error, Kirby Petroleum Company, in December, 1923, there was no notice given of any adverse claim to the 5 acres claimed by defendants in error. He said: "As to whether there was any claim of adverse ownership to those interests, to the * * * 5 acres, asserted by anybody that I know of during that time, I will say that Mr. Houk came to my office and brought me a deed some time in 1923." He said that this occurred before the conveyance of the property was made by the Old River Company to Kirby Petroleum Company by the deed of December 6, 1923; that Mr. Houk told him that he had a 5-acre tract out of the Lawrence home tract; that Houk showed him the deed and left it with him; that such deed had been recorded; that Houk told him that if we had such 5 acres inclosed, he would like to have a tenant at will agreement from the Old River Company; that he told Houk that they did have it inclosed; that when Houk so told him he told Houk that he would not claim limitation against anybody.
Testifying further, Dr. Collier said: "Following the conveyance of this land by Old River Company to Kirby Petroleum Company, for two years I acted as agent of the Kirby Petroleum Company."
Again he said: "I know I handled those lands for the Kirby Petroleum Company in 1924 and 1925 and W. D. Smith followed me there; it must have been in 1926."
Again he said: "I became president of the Old River Company about 1910, I think, and remained president until it dissolved or went out of business. It ceased doing business, dissolved, or became defunct, or whatever happened to it in 1923. This deed was made in December, 1923; that was the end of the Company. That was part of the winding up of it; that was the final winding up. I was president of it practically all of that time, from 1920 until it dissolved or ceased doing business. I was a substantial stockholder; in fact, I guess I had a majority of the stock. I could not tell you, off-hand, what stock I had in it, but I had more than fifty per cent. In a way, that made me boss; in other words, if anybody talked about the Old River Company down there, they usually meant Dr. Collier, whether they had something good or bad to say; I was pretty well identified with the Old River Company. I was identified in that neighborhood as the representative in control of the affairs of that Company, both as manager, stockholder, and as president."
Testifying further, he said: "Now, back to my expression when I was discussing it with Mr. Houk, that I told him that I had never, personally, made a claim to land by limitation and would not. Evidently I meant that to apply to this five-acre tract, that remark; that is what we were talking about. In other words, Mr. Houk was not alarmed about anything else; he was hunting me up to know whether or not his five acres was in danger; he came to my office and started a conversation about this identical five acres, and in that conversation, when I said I had never claimed any land personally, I certainly meant that I had not claimed this five acres. If I meant by that remark to keep it from applying to me in my capacity as president of the Old River Company, nobody could have made an adverse claim for that Company except me; that Old River head was my head and my head was the Old River head; the directors were concerned, too, but as far *Page 422 as the Old River Company was concerned, I was the Old River Company, and if that inanimate thing we call the Old River Company had a mental attitude that made it a claimant to this land, I would be aware of it. Nothing occurred that indicated that the Old River Company's attitude with reference to this claim was different from what I said my personal attitude was; there has been nothing occurred because I just put the deed away and forgot about it. I was the president of the Old River Company. Mr. Houk did not discuss with me this proposition and this apparent use of a part of this land in my capacity as president of the Company as well as personally; he never mentioned it as president of the Company. I am sure that he knew I was president of the Company. I am the man that he would have gone to to find out about an affair of this kind. I said before that such an affair as this was a matter that was in my control except where the directors would overrule me, but they never overruled me on this matter, not even to this day."
R. W. Houk, one of the plaintiffs, defendants in error here, testified as follows: "I told Dr. Collier that I understood that the Old River Company was using our five acres, and I showed him the deed to the five acres, and I said: `We have no objection to the Old River Company using it any way they desire, as long as they do not claim it adversely to us,' and he said, `No; we have never claimed by limitation.' He said: `I have never claimed by limitation.' I told him who the owners were and he said: `Especially I would never claim anything against my friend Wheeles.' Then I asked him if he would give me a written memorandum to that effect; he said he would if I would leave my deed with him, so he could get the description." Testifying further, he said that Dr. Collier told him that the Old River Company would not claim said 5 acres adversely to the plaintiffs.
J. S. Wheless, one of the owners of the 5-acre tract, and one of the plaintiffs, testified that Dr. Collier told him in the year 1920 that the Old River Company would not claim said 5 acres adversely to the plaintiffs.
The jury, in answer to special issues submitted by the court, found that Dr. Collier in the year 1921 said substantially to R. W. Houk that he (Collier) and the Old River Company had not and would not claim by limitation the said 5-acre tract, and that on such occasion Houk said to Dr. Collier that it would be agreeable to him (Houk) for the Old River Company to continue to use said 5-acre tract if said company would not claim it, and that in reply to Houk Dr. Collier agreed to act in accord with such understanding, and he did say that he would send Houk a written memorandum or statement to that effect.
From the facts stated, I conclude that the undisputed evidence shows that Dr. Collier was in possession of the 5 acres of land as the president and general manager of the Old River Company, with full authority to make the agreement found by the jury as having been made by him as above stated; I also conclude that by reason of such agreement the Old River Company became the tenant of Houk and other owners of said 5-acre tract, and continued to be such tenant up to the time it executed its said conveyance to Kirby Petroleum Company, of date December 6, 1923, and for such length of time thereafter as it was held by Dr. Collier, apparently in the same manner as theretofore, without in any manner informing the owners that Dr. Collier, for it, was seeking to attorn to Kirby Petroleum Company. Such attempt on the part of the Old River Company to attorn to Kirby Petroleum Company did not break the continuity of the Old River Company's possession as a tenant of Houk and others. It is well settled that when possession is originally taken and held under the true owner, a clear, positive, and continuous disclaimer and disavowal of title, and an assertion of an adverse right brought home to the true owner, are indispensable before the statute of limitation can be put in motion. Without this the length of the possession is immaterial and does not affect the title. Where the relation of landlord and tenant is once established, it attaches to all who may succeed the tenant, until a disavowal of tenancy is brought home to the landlord. In other words, that a tenant of the true owner cannot attorn to another by a conveyance or otherwise, unless and until, in some way, the true owner is informed that the tenant is repudiating his tenancy. Flanagan v. Pearson,61 Tex. 302; Juneman v. Franklin, 67 Tex. 415, 3 S.W. 562; Buford v. Wasson, 49 Tex. Civ. App. 454, 109 S.W. 275, 278; Werts' Heirs v. Vick (Tex.Civ.App.) 203 S.W. 63; Dolen v. Lobit (Tex.Com.App.) 262 S.W. 731; Wilson v. Beck (Tex.Civ.App.) 286 S.W. 315, 321; Gilbert v. Gum (Tex.Civ.App.) 265 S.W. 725, 726; Reichstetter v. Reese (Tex.Civ.App.)39 S.W. 597; Rio Bravo Oil Co. v. Sanford (Tex.Civ.App.) 217 S.W. 219, 220; Deitzman v. Sayles (Tex.Civ.App.) 245 S.W. 773; Whiting v. Edmunds,94 N.Y. 309, holding that the possession of the tenant and his grantees is that of the landlord, and not hostile or adverse, though such grantees, who had taken a fee in ignorance of the fact that his grantor stood in the relation of tenant, and with the latter denying such relation. In Werts' Heirs v. Vick, supra, it is held that the possession of a tenant is the possession of the landlord, and that possession acquired under tenancy cannot be said to be adverse in support of limitations, until such time as it is shown that the landlord had notice of the repudiation of the tenancy; and that one *Page 423 entering possession under tenant or lessee occupies the same position as does the original tenant and lessee, and is equally estopped to deny that the possession so acquired is that of the landlord.
In West Lumber Co. v. Sanders (Tex.Civ.App.) 225 S.W. 828, it was held that the possession of a tenant at will, or those holding under or through him, is not adverse to the owner, in the absence of notice to such owner of a repudiation of the tenancy contract.
In Reichstetter v. Reese (Tex.Civ.App.) 39 S.W. 597, the trial court gave the following charge: "If, therefore, you believe from the evidence that W. J. Buckhalter went into the occupancy and possession of the 1.180 acres of land in controversy in this suit as the tenant of the plaintiffs, and if he remained continuously in the possession thereof, and if, while said Buckhalter was so in possession, the defendant Reichstetter entered upon and took possession of said land, either with or without the permission of Buckhalter, or if said Reichstetter went into the possession of the land under a purchase from Buckhalter, made while Buckhalter was in the possession of the land as aforesaid, in such case you should find a verdict for the plaintiffs for the land in controversy, unless you believe from the evidence that, prior to the entry of Reichstetter upon said land, Buckhalter had renounced and repudiated his said tenancy, and given plaintiffs notice thereof." The appellate court held that the charge was correctly given.
In Rio Bravo Oil Co. v. Sanford, supra, the court quotes with approval the following: "Not only is the original lessee ordinarily precluded from denying the validity of the lessor's title at the time of making the lease, but all persons claiming or holding by, through, or under the lessee are also precluded. Were this not so, it is plain, the rule of preclusion would be of little benefit to the landlord. In accordance with principle, the assignee of the lessee is precluded to the same extent as the lessee himself from denying the lessor's title. And the fact that the assignment purports to transfer a fee-simple interest is immaterial in this connection."
The undisputed evidence shows that the 5 acres owned by appellees was of but little value unless valuable minerals should, at some time, be discovered thereunder; that appellant was the owner of two tracts of land, one of about 840 acres lying wholly within the Griffith survey, and the other of about 875 acres, an unidentified part of which was in the Griffith survey. Whether these two tracts lay contiguous, one to the other, is not shown. It is shown, however, that appellant owned a large acreage of land in one body lying adjoining the 5 acres owned by appellees; it is shown that the Old River Company for a number of years prior to its conveyance in December, 1923, to the Kirby Company, cultivated a large portion of the land conveyed in rice, but that no part of the 5-acre tract claimed by appellees was so used.
It was shown that after Old River Company conveyed the large acreage of land, including the 5 acres, to this appellant, Kirby Company, such company, under the management of Dr. Collier, used and cultivated the same during the years 1924 and 1925 in the same manner as it had been used and cultivated by the Old River Company, its vendor. It is shown that a number of tenants of the Old River Company remained tenants of appellant after the conveyance was made by the Old River Company to the Kirby Company, and that Dr. Collier, president and general manager of the Old River Company's affairs, from the time of such conveyance to the last part of 1925, a date only three years and nine months prior to the filing of this suit, remained in possession of the land apparently in the same manner as before the conveyance was made to the Kirby Company, that is, he procured tenants on portions of the land just as he had done prior to the conveyance to the Kirby Company.
It is shown that the 5 acres of land in question was in Chambers county, forty or fifty miles from Houston, where appellee Houk resided, and several hundred miles from the city of Kerrville, where appellee J. S. Wheless resided. As before stated, neither of the appellees had any knowledge of the existence of the conveyance of the Old River Company to the Kirby Company, until shortly before this suit was instituted, nor did they have any kind of notice before such time that the Kirby Company was asserting any claim to their five acres of land; especially were they ignorant of the matters stated, until Dr. Collier had ceased his control of the rice farm in the last part of 1925.
Notwithstanding the facts stated, the majority of this court, by their action in reversing the judgment of the trial court and rendering judgment for appellant, has in effect held that the appellees were, as a matter of law, charged with notice that the Kirby Company was holding "adverse possession" of appellees' 5 acres of land as that term is used in article 5515, Rev. Statutes of 1925, which article reads in part as follows: "`Adverse possession' is an actual and visible appropriation of the land." (Italics, those of the writer.)
It is a fact that the 5 acres owned by appellees was in actual possession of the Kirby Company during the years 1924 and 1925, by reason of its possession through Dr. Collier, who remained in control of the same as agent of the Kirby Company in the same manner as he had theretofore controlled it far the Old River Company, the tenant of appellees, since December 6, 1925, at which time the Old *Page 424 River Company conveyed a large acreage to the Kirby Company, including the 5 acres owned by appellees. But as Dr. Collier continued to use the whole body of land belonging to appellant and the 5 acres during the years of 1924 and 1925 just as he had while acting as agent for the Old River Company, the tenant of appellees, such possession did not becomevisible to appellees until Dr. Collier ceased his control the last of the year 1925. Dr. Collier for the Old River Company, the tenant of appellees, hoisted the flag as a tenant of appellees, relative to their 5-acre tract in 1921, and that flag continued to fly according to the undisputed testimony of Dr. Collier up to the last part of the year, 1925. The majority in their opinion in effect asserts that appellees were under obligations to use due care and diligence to give notice of their rights to the small 5-acre tract and not blindly rely upon the promises of Dr. Collier, to hold the same for them. What kind of diligence would the majority require of appellees to discover that the Old River Company had sold said 5-acre tract to the Kirby Company? In 1921, after being informed that the Old River Company had its land inclosed or partly so, together with a large acreage owned by said company, and after receiving the promise of Dr. Collier that the Old River Company was not and would not claim appellees' land adversely to them, the fact that appellant continued to cultivate the lands actually owned by it, in rice, just as it had been cultivated before it purchased from the Old River Company, as it had the right to do, was in the opinion of the writer no notice whatever to appellees that appellants were holding the 5 acres owned by appellees adversely to them. By no manner of means should it be held that under such circumstances appellees were, as a matter of law, charged with notice of a visible adverse holding by appellant of the 5 acres owned by appellees.
If appellees had gone in the vicinity where the land was situated, in either of the years 1924 and 1925, they would have discovered that the large body of land formerly owned by the Old River Company was being used under the control of Dr. Collier just as it had been used prior to said years. By such observation appellees were by no manner of means charged with notice that their five acres was being held adversely to them.
In 2 Corpus Juris, p. 75, § 57, it is said: "Most courts and text-writers, in defining what is meant by the term `adverse possession,' include as one of the essential elements thereof `open and notorious' possession. It is in general true that title by adverse possession cannot be acquired unless the possession is open and notorious, but the rule must be understood with some qualification. A more correct statement of the rule is: In order to make good a claim of title by ad verse holding the true owner must have actual knowledge of the hostile claim, or the possession must be so open, visible, and notorious as to raise the presumption of notice to the world that the right of the true owner is invaded intentionally and with a purpose to assert a claim of title adversely to his, or so patent that the owner could not be deceived, and such that if he remains in ignorance it is his own fault. `The claimant must exercise such acts of ownership and occupancy as are sufficient to "hoist his flag" over the lands, so that all may observe it.'"
Although this case was tried before a jury to whom the evidence was submitted for the finding of facts, the trial court without authority so to do, at the request of appellant, filed findings of facts, which have been, I think, improperly copied into the transcript.
The majority of this court in their opinion referring to such findings say: "These findings of fact by the trial court, the case having been submitted to a jury on fact issues, are not required by the statute and cannot be given the force and effect of findings made by the court in cases not submitted to a jury, and therefore are not inserted in this opinion as entitled to the same consideration as fact findings in a case submitted to the court without a jury, but are merely copied as a correct statement of the facts shown by the undisputed evidence and asthe conclusions of the court upon the facts found by the jury." (Italics those of the writer.)
I pass this up without comment, other than to say that such findings in my opinion are not only not entitled to the "same consideration as fact findings in cases submitted to a jury," as stated by the majority, but that they are not entitled to any consideration whatever by this court for any purpose. Nor is this court concerned about what conclusions were reached by the trial court upon the facts found by the jury. Such expressed conclusions in my opinion should not be considered by this court for any purpose.
It is clear from what I have said that I think the judgment of the trial court should be affirmed.