On Rehearing. Under Art. No. 7382, R.C.S., the plaintiff in trespass to try title need not deraign title beyond the common source. The rule of common source is thus stated by 41 Tex.Jur., 509: "The fundamental *Page 164 principle is that where both plaintiff and defendant claim title under the same grantor, the plaintiff in the first instance need deraign title no further than that person under whom they both claim."
It is thus stated by our Supreme Court in Rice v. Railroad Co.,87 Tex. 90, 26 S.W. 1047, 1048, 47 Am. St. Rep. 72: "The rule as to the common source is that when the plaintiff has proved that he and the defendant claim title to land from a common source, and that, of the two titles emanating from that source, he is superior, he shows a prima facie right to recover."
Also, in Simmons Hardware Co. v. Davis, 87 Tex. 146, 27 S.W. 62, 63, our Supreme Court said: "It is not meant that the plaintiff in every case shall prove, not only that both claimed from the common source, but that he shall also specifically show the nature of the defendant's claim, and then attack its validity."
Again, in Burns v. Goff, 79 Tex. 236, 14 S.W. 1009, our Supreme Court said [page 1010]: "The rule which renders it unnecessary for plaintiff to deraign title beyond the common source is one of convenience."
These authorities and propositions are advanced by appellant on its motion for rehearing, but they are not in point on the facts of this case. Under all the authorities, and no court has held to the contrary, to establish common source the plaintiff is required to show that he and the defendant deraign title under and through the same person, and to recover, that he has the superior title under the common source. The nature of the defendants' claim under the common source is immaterial — but the plaintiff must tie him into the common source by a claim of title of some sort. And the proof of common source must be to the very land in controversy — the land described and sued for in the plaintiff's petition, controverted by defendants' plea of not guilty.
In its motion for rehearing, appellant is in error in its construction of the facts. We quote: "It is believed that this Court has ignored the fact that so far as appellant's chain of title is concerned the 139 1/2 acre tract of land constitutes one tract of land out of one Survey and passed to appellant by conveyance as such. * * * In the instant case, a 139 1/2 acre tract constituted a single tract of land upon which The Federal Land Bank of Houston had a lien at the time appellees took their conveyance. So far as appellees and appellant were concerned the lien of The Federal Land Bank of Houston constituted a single lien upon all the land, and appellees took subject to the lien, and when the trustee's deed was executed to The Federal Land Bank of Houston they acquired and took title from and under the defendants in the trespass to try title suit, and thereafter held such title under and through the defendants, and appellant having shown that it held its title under the defendants themselves it was not required to go further in order to establish a prima facie case."
As shown by the statement made in the original opinion, appellant holds under W. L. McClendon, who conveyed the 137 1/2 acres of land (referred to by appellant as 139 1/2 acres) to R. Hairston, appellant's mortgagor, in two separate and distinct tracts — one containing 57 1/2 acres, and the other 80 acres. Appellant contends that between it and appellees McClendon is the common source; so, under appellant's chain of title, the issue between it and appellees involves two separate and distinct tracts of land, specifically described. Under the pleadings and proof, appellees' claim to the 137 1/2 acres of land was by and under two separate and distinct tracts; the one containing 66 acres of land — as to this tract appellees entered their disclaimer, and on this disclaimer appellant was awarded judgment; the other containing 71 1/2 acres of land. The 66 acres, to which appellees disclaimed, included the 57 1/2 acres and 8 1/2 acres out of the 80 acre tract; the 71 1/2 acres, the balance of the 80 acre tract. The 71 1/2 acres is the only land in controversy between appellant and appellees, and appellees answered by pleas of not guilty. Thus stated — and it is an accurate statement — the issue, and the only issue, before the trial court between appellant and appellees was the title to the 71 1/2 acres of land. Many other parties were named defendants by appellant, but under the evidence there was no privity between them and appellees. Having failed to establish against appellees, "common source," that is, that it and they claimed the 71 1/2 acres of land through and under the same person, and having failed to introduce in the evidence any other character of title, appellant failed to establish against appellees a prima facie title to the 71 1/2 acres of land, and judgment was correctly *Page 165 rendered that appellant "take nothing" against appellees.
If appellant had sued appellees only for the 71 1/2 acres of land and appellees had been the only defendants, we do not understand from its argument that it would now claim title against appellees. But, since R. Hairston in his mortgage to appellant described the 137 1/2 acres of land as one specific tract of land, appellant contends that proof that appellees claimed under the common source a specific tract out of the 137 1/2 acres — the 66 acres — was proof that they also claimed the 71 1/2 acres under the common source. We quote from appellant's motion for rehearing: "The holding of this Honorable Court in the instant case, if permitted to stand, will in effect eradicate the established rule of law permitting proof of common source of title in trespass to try title suit, because it would require plaintiff to show that the defendant held some claim upon every foot of the given tract of land sued for. This Honorable Court has laid down a rule which would require in most instances in trespass to try title suits proof of such facts in order to show common source, that in few cases could a plaintiff show common source even though all the defendants were claiming under a common grantor with the plaintiff. * * * It has many times been held, and is definitely established by the authorities in this State that a plaintiff suing in trespass to try title who shows a chain of title emanating from a grantor to it and shows a claim of title to the defendants under the same grantor has shown common source of title and may recover the land sued for if his title is prima facie superior."
Our holding does not "eradicate" the established rule of law permitting proof of common source, nor does it limit or modify the rule to the least extent. In our construction of the facts of this case, we have recognized and applied the law of common source as brought forward by appellant in its motion for rehearing and supported by the authorities cited above. We recognize, as held by our Supreme Court in the Goff Case, supra, that the common source rule is one of "convenience," but no court has ever construed the rule of convenience as relieving the plaintiff, in the first instance, of proving common source. In no case called to our attention has any court held that proof of common source to a specific tract of land constituted proof of common source to a separate and specifically described tract of land, though the plaintiff may have sued for both tracts under one general description.
The construction we have given appellant's facts does not place "a new and additional burden" upon the plaintiff beyond the general rule of proof of common source, but enforces the rule recognized by all of the authorities. It may be, as asserted by appellant, that in only a few cases "could a plaintiff prove that each defendant claimed all the title." The answer to this contention is simple; that the plaintiff should not make anyone a party defendant to his suit unless he has the superior title to the land in controversy — the very land in controversy — under the common source, or can establish a superior title under some other rule of law. Having made appellees a party to this suit, appellant, as against their plea of not guilty, was required to make out a prima facie case of superior title to the 71 1/2 acres of land — the very land in controversy — or be cast in the judgment. It knew from its pleadings and proof that appellees asserted no claim under anyone in its chain of title to this land; on this statement, appellant rested under the burden of tracing its title to the original grantee, or of proving title by prior possession. Since the 137 1/2 acres of land was conveyed by McClendon to Hairston, as two separate tracts, and since appellees claimed 71 1/2 acres of the 80 acre tract, no presumption arises that the two separate tracts of land were held by the same chain of title under the original grantee; no presumption arises that appellees did not hold a superior title originating beyond McClendon's conveyance to Hairston. We repeat; the issue between appellant and appellees, tried by the trial court, was a simple action in trespass to try title, involving the title and possession of 71 1/2 acres of land: As against appellees' plea of not guilty, appellant established no character of title to the land, and, therefore, the court properly entered judgment against it that it "take nothing as to the 71 1/2 acres" as against appellees.
Motion for rehearing overruled.