Our opinion is that there is error .in the record for which the judgment should be reversed.
The first assignment of error, we think, is well taken. What constitutes a delivery of a deed is a matter of law. Whether there was a delivery in this case was a question of fact. If the testimony of Towery is to be believed, which was a question for the jury, we incline to the opinion that there was a delivery of the deed. On the other hand, the testimony of the witness Woodsworth is indefinite at the very point where the utmost clearness is desirable and necessary. He admits that he made the contract; that the parties went to the office of Matthieson to have it reduced to writing; that the deed was written in accordance with their directions, and that he signed it, but says that he did not deliver it. This may mean either that he did not hand the deed to .Towery, as the latter testifies he did, or that his acts at the time did not amount in law to a delivery of the deed. We do not wish to comment on the evidence, but we find nothing in the record pointing to an understanding between the parties that the deed was not to become operative until it was acknowledged. We are by no means certain that the jury may not have been influenced by this part of the charge.
*296The second assignment questions the following clause of the charge: “ If R. B. Francis took possession of the lot . . . without the knowledge or actual consent of Towery, and with or without any contract for the occupation of the lot ás tenant of Mrs. Towery and Mrs: Thomas, made by them or their husbands, or some duly-authorized agent, there would be no privity between Francis and Towery and wife, and the occupation of Francis would interrupt the running of the statute of limitations.”
This, in our opinion, was error. It does not clearly appear when Francis took possession; but it does appear that he was in possession in 1860. Johnson, the father of Mrs. Towery, was in possession in 1850. If ten years elapsed between the time when Johnson took possession and the time of the entry of Francis, the title of Mrs. Towery and her sister by limitation was complete. But if the entry of Francis was before the year 1860, then the question to be determined is whether Francis took possession as the tenant of the defendants and Mrs. Thomas. And in our opinion there can hardly be any doubt that he did.
There seems to be no doubt about the tenancy of Smith, the predecessor of Francis. He received the property from Towery and wife, to hold upon certain terms. He turned it over to Francis, and Francis received it to hold for Towery and wife upon the same terms. Can there be a doubt that this would make him their tenant? If they had returned a month or a year after he took possession, and had demanded the property, he must have surrendered it, just as his family surrendered it,- after his death, in 1867.
We quote some remarks of Mr. Justice Moore upon a case not wholly like this, but which will apply here: “From the instructions the jury were authorized to infer that the relation of landlord and tenant could only be brought about or created by a contract either written or parol. . . . Evidently, in many instances, the owner may claim that the occupant holds as his tenant, although there has been neither a written nor a parol contract to this effect. If one has assumed the rights of a tenant, the owner may so treat him, and though there is no contract between them he will be estopped from denying the tenancy.” Word v. Drouthett, 44 Tex., 371.
Although these remarks refer to the owner and the occupant of land they are equally applicable to the case before us. For we must suppose that Smith, the preceding tenant, acted in good faith towards his landlords, and that Francis could not have obtained the possession without an agreement to become their tenant.
In our opinion the third assignment, also, must be sustained. The *297court directed the jury to find against the defendants, if during the occupancy of the lot they attempted to purchase it from H. D„ Woodsworth, in order to hold it as their own property, or either of them, in exclusion of the claim of Mrs. Thomas or Ella Thomas; that such conduct would be inconsistent with their plea of adverse possession.
It must be kept in mind that this attempt to purchase the lot was made twenty-four years after Johnson, the ancestor of the parties to this suit, had taken possession of it. It is not easy to see how this purchase or attempted purchase could be inconsistent with the plea of adverse possession. If Towery and wife felt any apprehensions about the claim of Woodsworth, it was not unreasonable or improper that they should try to buy it in. Such a purchase could not harm Ella Thomas, inasmuch as the defendants had always recognized her rights, at least up to the da „e of the attempted purchase. “Merely taking a deed, by one of two co-tenants, from a stranger, of the entire estate and putting the same on record, is not an ouster of his co-tenant, nor a notice of a claim to exclusion and adverse possession.” 3 Washb. on Real Prop. (4th ed.), p. 142.
The only effect of their open repudiation of the rights of Ella Thomas would have been to put the statute of limitations into operation against her, if she had not been protected by the disability of infancy.
In the present state of the record, we need hardly notice the fourth assignment of error, except to say that, for the purpose of barring the right of entry of Woodsworth, under the fourteenth section of the act of limitations of 1841 (Pasch. Dig., 4631), we doubt whether the defendants could connect their possession with that of Johnson, their ancestor, because he had not been in possession five years at the date of his death. When the case goes back the defendants might, perhaps, present that question by amending their pleadings, but of this they will judge for themselves.
The questions arising under the fifth assignment have already been sufficiently discussed.
For the errors indicated above, our opinion is that the judgment should be reversed and the cause remanded.
Reversed and remanded.
[Opinion approved November 2, 1883.]