I do not agree with the other members of the court in the conclusion reached that the trial court did not err when he refused appellants' request to submit to the jury an issue as to whether they had notice that the possession held by George Liddell, who owned the land in common with them, was adverse as to them or not. The conclusion is predicated on the assumption, which I think is not warranted, that it appeared from the testimony as a matter of law that appellants had such notice. That it did not so appear, but was a controverted question in the evidence, I think is reasonably clear, unless it ought to be said, and I think it ought not to be (Lynch v. Lynch [Tex. Civ. App.] 130 S.W. 461), that the record of the deed from Lucinda Liddell to George Liddell was such notice. If the record of that deed was not notice to appellants, then the justification, if there is any, for the ruling made by the majority, must lie in the parol testimony heard at the trial; for the suit was commenced April 11, 1919, less than 10 years after March 7, 1911, when the deed from Gunn reconveying the land to George Liddell was filed for record.
The substance of the pertinent parol testimony admitted as evidence is stated in the opinion filed by Judge HODGES. It will be noted that the appellants Simon and Solomon Liddell, owners of the land in common with George Liddell, testified that the latter never at any time prior to March 18, 1905, when he made the deed to Gunn, claimed their interest in the land, but, on the contrary, aways recognized it as belonging to them. George Liddell's testimony with reference to this phase of the case, as set out in the statement of facts, was as follows:
"I went to live with Reuben and Lucinda when I was a boy, and lived with them until both of them died. After Reuben died I took the management of the 66 acres of land and worked the land for my grandmother. I never claimed plaintiffs' interest in this land; I never did; up to 1905 I always told them the land was a home for them all. I told them they had an interest in the land. I stayed there with my grandmother. I paid the taxes on the land every year from 1902 to 1913. No one paid for 1913, 1914, and 1915 until after I was put out of possession by the defendant. Before I made the deed to Gunn I did not claim their interest in the land. I have had the management and control of the place for my grandmother all the time same while Mr. Gunn had my deed as before; there was no change in the possession. I paid the taxes while Mr. Gunn had my deed, except one year. I don't know how the taxes were paid that year. I lived with my grandmother until her death on January 29, 1910."
It will be observed that, while Simon and Solomon Liddell testified that George Liddell never claimed their interest in the land before the time when he made the deed to Gunn, they did not testify that he ever to their knowledge claimed it at any time after he made that deed, and that, while George Liddell testified that he did not claim appellants' interest in the land before he made the deed to Gunn, he also testified that he had the management and control of the land for his grandmother after, as he did before, he made the deed, that there was no change in the possession, and that he "paid the taxes while," quoting, "Mr. Gunn had my deed, except one year." I think a jury might have construed the testimony that George Liddell never claimed appellants' interest before he made the deed to Gunn as meaning, not that appellants knew anything about the making of that deed at the time it was made, but that they knew at the time they testified that George Liddell had made such a deed and understood his act in making and delivering it to be the assertion by him of a claim to their interest in the land. And I think the jury might have found from the testimony of George Liddell that no change took place in the possession of the land after he made the deed to Gunn, and that he continued thereafter to manage and control the property for his grandmother as he did before he made the deed, that he never became Gunn's tenant and never held possession of the land for him, or, if he did, that appellants never had notice of the fact.
If the jury might have so found, then it is plain the trial court should have submitted an issue as to notice to appellants as they requested him to; for, when a case is submitted to a jury on special issues, as this one was, the statute makes it the duty of the court "to submit all the issues made *Page 756 by the pleading" and the testimony. Article 1985, Vernon's Statutes. In such a case a party has a right to have the jury pass upon the "credibility of the witnesses and the weight to be given their testimony"; and no matter how many witnesses may testify in favor of one side of a controverted fact, nor how strongly in the opinion of the court the weight of the evidence may be on that side, he cannot, without ignoring the statute, deprive the party to the other side of the controversy of a right to have it determined by the jury.
Nor do I agree with the majority that the error of the court in excluding the declarations of George Liddell made during the time Gunn owned the land, tending to show that he was not holding it as Gunn's tenant nor adversely to appellants, was harmless. The ruling of the majority seems to be based on the assumption that when George Liddell made the deed to Gunn he became the latter's tenant. It is true that Gunn's testimony as a witness was to that effect. But George Liddell, as shown above, testified he was then managing and controlling the land for his grandmother. It seems to me it was important to appellants' right that they should have been permitted to show that at the very time, according to Gunn's testimony, George Liddell was in possession of the land as his tenant, George Liddell was asserting, in effect, that he was not Gunn's tenant.
I think the judgment should be reversed, and that the cause should be remanded to the court below for a new trial.