On Rehearing. On rehearing appellants complain that we overruled without discussion their eighth and tenth propositions under subdivision (b) of their brief, which are as follows:
"Eighth Proposition. "The trial court was in error in definition in the charge as to `possession,' wherein the jury were told: `A possession by one who holds in recognition of the title of another is in law the possession of such other person."'
"Tenth Proposition. "It was error in the trial judge to refuse Appellants' Requested Charge No. 7 to the effect that no limitation could run in behalf of defendants during the time covered by the suit instituted by Junker and others against these appellants from the 24th of January, 1928, to June 21, 1928."
They also insist that our conclusions of fact upon the issues discussed are wholly without support in the evidence. We gave no quotation from the testimony in support of our conclusions on the issues of limitation. Nothing further could be added in support of our conclusions on the other issues.
Appellees have answered to our entire satisfaction appellants' propositions attacking our conclusions on the issues of limitation by quoting from the statement of facts the testimony upon which these conclusions must rest. Also, appellees have answered by citation of authorities directly in point appellants' propositions, that the court erred in its definition of possession and in the refusal of requested charge No. 7. After reviewing carefully in consultation this argument of appellees, we adopt it as our opinion on rehearing:
"The first challenge is to the conclusion of this court that there is evidence sufficient to carry the issue to the jury that all the land north of the bayou was under fence by one Hayes for more than ten years prior to the filing of the suit. Such finding is fully justified by the evidence.
"The witness Hayes traced the outline of his pasture known and referred to as the Thomas pasture. He described the character of the enclosure. The fences built by him completing the enclosures and dividing the pasture into two portions were constructed in January or February 1918. Plaintiffs' suit was filed in June, 1928. With the construction of his fences in January or February 1918, the pasture was divided into two parts, one part known as the `big pasture' and the other as the `catch pasture.' The fences or barriers forming the lines of his enclosure as outlined by the witness, turned cattle and would keep the witness' cattle within the enclosure and keep outside cattle without the enclosure. That from the time of the enclosure in January or February 1918 to the summer of 1929, the witness always had one hundred head of cattle or more in the pasture, and sometimes had as many as one hundred forty and one hundred fifty head of cattle, and during that time he at all times used the enclosure as a cattle pasture. That after the construction of the fences, the witness kept the fences in repair.
"Witness George Blanch testified that he fenced the land south of the bayou in the fall of 1919, and at that time he found the fence constructed by Hayes north of the bayou, and joined a fence constructed by the witness to the Hayes fence. That he understood that the land within the enclosure of the fence was the Thomas pasture. That Hayes had cattle in the pasture and that Hayes was trying to keep his fences in repair. That after the witness went there that he placed his stock in the pasture north of the bayou and they stayed there until he went and got them. That he had some cattle there at all times. That he had cattle there ever since 1920 and still had them there at the time of the trial.
"It is true that some of the witnesses, testified that the land was not enclosed but cross examination developed that the witnesses were not familiar with the ground, but however that may be, the issue was found by the jury in favor of the defendants and evidently accepted the testimony of Hayes and *Page 921 Blanch, which testimony is in accord with the actual facts.
"Appellants next challenge the statement of the court to the effect that the testimony raised the issue that Hayes fenced the land under authority from appellee, Guy W. Junker and as his tenant, and while the land was so under fence by him held it in recognition of his tenancy under Junker.
"Witness Hayes testified that when he moved down there in November, 1917, that he went to Mr. Junker and asked about fencing the land down to the bayou, and Mr. Junker told him he could do it and to go ahead. Witness further testified that he `entered and held it (the land) under the authority and control and in recognition of Mr. Junker.' He further testified that Mrs. Thomas, his mother-in-law whose land was also within his enclosure held her title to her land under the judgment in the case of John B. Smith et al. v. A. E. Broussard. That before seeing Mr. Junker, he discussed the matter with his mother-in-law who told him not to fence it without permission and he went to see Mr. Junker and asked permission and he gave it. On cross-examination, the witness said that he did not pay Junker anything for the privilege, that Mr. Junker never asked for anything, but had he asked for anything witness would have tried to pay him. That the use that he made of the Junker land was valuable to the Witness as a pasture.
"Mr. Guy W. Junker testified that Hayes came to him and stated he wanted to build some fences on the land and wanted to use the land north of the bayou for a pasture, and that he gave `him permission to build that fence and use that land.'
"Appellants next challenge the statement of the court to the effect, `the evidence also raised the issue that Junker in making his tenancy contract with Hayes was representing the plaintiffs, or those holding under them in the partition judgment of 1899, and that in holding the land under Junker, Hayes in fact was holding it not only for Junker but in recognition of the claim of the plaintiffs in the partition judgment of 1899.'
"Junker testified that he was a party to the suit of 1899 and acquainted with the suit and its parties; that in the judgment there was set aside to him 123 acres and he had acquired from the other parties to that judgment through mesne conveyances, title to all of the land in suit; that his negotiations to purchase extended back to 1910; that during the time of his negotiations that he had looked after the land for the various owners holding under the judgment and that when he leased the land he had all of same under control. That prior to the time of his various purchases, he was not claiming, by reason of his possession, the land as his own, except as to that which he had purchased, and that his possession and the possession of those to whom he had leased was the possession of Masterson and the people who got that judgment and their successors in title; that he did not remember exactly how long the original people who got the judgment owned it, `but it went into the hands of other parties whom I represented also. I was holding it for those parties.' The witness further testified that he and those for whom he held, claimed to own all the land under the judgment of 1899; that as to what he himself did not own, he had the land under his control and was using it, holding and claiming it, for the persons he recognized as the owners under said judgment. That in the taking of the possession of the property as a representative of the other owners with him under the judgment that, `I recognized the ownership of the people who got that judgment as the owners of that property.' That some of it went into hands of other parties other than the original parties to the judgment whom the witness also represented and for whom he was holding.
"Of course, the rule is that an owner may be in possession through an agent as well as by tenant. Huff v. Crawford, 88 Tex. 374, 30 S.W. 546,31 S.W. 614, 53 Am. St. Rep. 763, and that the tenant who went in under the agent became the tenant of the owner whom the agent represented. Bowles v. Brice, 66 Tex. 728, 2 S.W. 729; Cobb v. Robertson, 99 Tex. 138,86 S.W. 746, 87 S.W. 1148, 122 Am. St. Rep. 609.
"It was shown that Junker and those for whom he held and under whom he held claimed to own the land under the true heirs of Mary Smith. The persons to whom the land was partitioned under the judgment of August 3, 1899 claimed the land set apart to them as being entitled thereto as the true heirs of Mary Smith and W. H. Smith. That Junker and the people under whom he held, `claimed to own under the true heirs of Mary Smith as evidenced by that judgment.'
"It is further shown that Junker and those under whom he holds as to the land in suit, has paid all taxes thereon since the time of said judgment in 1899 and constituting a period of thirty years.
"All that is required by the limitation statute is `an actual and visible appropriation of the land commenced and continued under a claim of right inconsistent with and hostile to the claim of another.' Payment of taxes is in itself, evidence of claim. Baker v. Fogle, 110 Tex. 307,217 S.W. 141, 219 S.W. 450; Bishop v. Paul (Tex.Civ.App.) 217 S.W. 437.
"Appellants attack the holding of this court that, the issue was raised that the plaintiffs in the partition judgment of 1899, *Page 922 together with the defendants therein who held under the plaintiffs, claimed all the interest in this land. The 741 acres awarded to the plaintiffs therein was claimed by them as against the world. * * * The issue was raised that subsequent to the rendition of the judgment the plaintiffs and those holding under them claimed all the interest in the 741 acres.'
"In addition to what the court says in its opinion as to the judgment of 1599 being a notorious act of ouster, we suggest that had said judgment not existed, the issue would have been raised as a matter of fact for the jury. This is demonstrated by the authorities cited by appellees themselves, to-wit, the case of McCoy v. Long et al. (Tex.Com.App.) 15 S.W.2d 234; Arrington v. McDaniel (Tex.Com.App.) 14 S.W.2d 1009 and is also sustained by the case of Illg v. Garcia,92 Tex. 251, 47 S.W. 717, 718. In the latter case it was claimed that one relying on adverse possession could not claim against a cotenant unless the occupant has brought home notice of his claim as against his cotenant directly to said cotenant. The court speaking, said:
"`Certainly, repudiation of the claim of a co-tenant, and notice thereof, may be shown by circumstances.'
"In the case of McCoy et al. v. Long (Tex.Com.App.) 15 S.W.2d 234, 235, Judge Speer uses language, if strictly construed without reference to the facts, might lead to the conclusion (for the moment waiving the effect of notice of the judgment of 1899) that the cotenant to claim by limitation against another cotenant would have to bring directly home by personal notice the fact of the claim, but reading further in the opinion, it will be noticed that the claim being made, which Judge Speer denied, was that the evidence showed as a matter of law there was adverse possession by one cotenant against the other. The Commission of Appeals held against the contention and held that in the absence of direct notice to the cotenant it was a question of fact for the jury to say whether or not the adverse possession in that ease by a cotenant was adverse to another cotenant. The court said:
"`Mrs. McCoy, being a cotenant with the plaintiff, her possession thereunder would not be necessarily adverse. The Court of Civil Appeals was right in holding, under the facts in this case — considering the long actual possession and all other surrounding circumstances — that it was a question of fact whether the defendant's possession had been adverse to the plaintiff's right.'
"The trial court submitted the issue of adverse possession to the jury and it was found favorable to appellees.
"The very first ground in appellants' motion for rehearing is that this court erred in that it has refused to pass upon assignments of error touching limitation.
"As we construe the court's opinion, the court in its discussion of the question, directly passed on all of appellants' propositions with the exception of the Eighth and Tenth propositions under `B' of their brief. The court was correct in not considering appellants' Eighth proposition under `B' of their brief relating to limitation, wherein complaint is made of the fact that the trial court erred in instructing the jury that, `a possession by one who holds in recognition of title of another is in law the possession of such other person.'
"The objection made by the appellants in the court below did not in any wise attempt to point out the objection to the charge, but simply was to the effect, `that plaintiffs object to the following definition of possession in the court's charge: A possession by one who holds in recognition of the title of another is in law the possession of such other person.'
"The above quoted is the complete objection to that portion of the court's charge complained of in the Eighth proposition and an objection not pointing out the defect in the charge, is in law, no objection at all.
"The Supreme Court in the case of Isbell v. Lennox, 116 Tex. 522,295 S.W. 920, in very clear language states the rule. The objection to the charge in that case was:
"`The plaintiffs except and object to the court giving, in charge to the jury, the following portions of the charge, to wit.'
"Then followed a quotation of the portion of the charge to which the objection was aimed. After quoting the statute relating to objections, the Supreme Court said: —
"`This statute was designed to correct a very important handicap or evil in the trial of cases. Its purpose in requiring the parties or their attorneys to present to the court their objections to the charge clearly is that the party objecting must apprise the court of the error in his charge with a view to its correction.
"`The objection must point out to the court the error complained of. If it fails to do that, it does not meet the purpose and requirement of the statute, and is no objection at all.
"`The necessary and only construction that can be given to the language of the article is that it requires of a party more than a mere statement that he objects; it must point out the error. Any other construction would destroy its effect and make it meaningless. The gateway would be thrown open for the creeping in of the evils of the old practice when no objections were required, and the trial judge at his peril and under the pressure of his docket was required to prepare and give his charge without the benefit of the *Page 923 assistance of counsel in the case, who were especially prepared on the law of the case, and who were permitted to make use of any flaw or error that might thereafter suggest itself if the verdict went against him.
"`In the case of Gulf, T. W. Ry. Co. v. Dickey, 108 Tex. 127,187 S.W. 184, this court, through Chief Justice Phillips, said:
"`"The three articles, that is, amended Arts. 1970 and 1971, and unamended Art. 1972, in our opinion simply mean that in order to obtain a review of the general charge of the court on the appeal because of any error therein, an objection to the charge in the particular complainedof must be presented to the trial judge before the charge is read to the jury."'
"See, also, Norwich Union Indemnity Co. v. Wilson (Tex.Civ.App.)17 S.W.2d 79; Farmers' Mechanics' National Bank v. Marshall (Tex.Civ.App.) 4 S.W.2d 167.
"As to the Tenth proposition under `B', the same is without merit as shown by the authorities in support of appellees' counter proposition set out on page 122 of the brief.
"In addition to those authorities, we call the court's attention to the case of Gibbs et al. v. Lester (Tex.Civ.App.) 24 S.W.2d 527, which is directly in point and contrary to the position of appellants.
"We have not attempted any discussion in this brief reply but have only tried to set forth in a brief way, evidence concerning the issues which appellants say have no evidence to support the same."
Motion for rehearing is in all things overruled.