(dissenting).
The pleadings are profuse and present some questions not dealt with in the lower court or the majority opinion, but the reversal being for further proceedings not inconsistent with the opinion I discuss only what I understand the opinion to require of the lower court in the further proceedings. The opinion does not hold that ap-pellees arc trustees of the legal title for appellant, which was one theory of appellant’s petition. It does not hold that the partition decree was fraudulent and void. I think it was clearly not fraudulent, for the evidence on which it was granted’ was preserved in full and shows that no fact was misstated or suppressed. Chris Christian-sen testified that he knew his brother Gilbert had this son Alfred, and that if Alfred were then present he would wish him to have his share in the property of his deceased aunt Alette; but that Alfred’s father, when he came to Dallas in 1901, there to live and die, had said he was separated from his wife, and she and the two children then living had left Astoria, Oregon, where their home had been; that nothing had been heard of them since; that he did not know where they had gone or where to look for them in 1934, but went to his sister in South Dakota, who also had heard nothing of them. The court which heard this testimony in 1934 may have erred in point of law in thinking is sufficient to raise a presumption of death1 and in decreeing accordingly, but it shows a full disclosure of the known facts, and not fraud.
The third position of appellant’s petition is that the statute, now Art. 5541, Revised Civil Statutes of Texas, gave her husband Alfred, presumed to be dead by the partition decree, a legal right to have his estate in the land “Restored to him with the rents and profits of the estate with legal interest during such time as he shall be deprived thereof”. That position is sustained by the opinion, and the district court is held in error for deciding that a recovery by appellant as his heir is barred by limitation. She, suing in her husband’s right more than eleven years after the partition decree excluded him from a share, is claiming one-third of the remaining city houses and lots, $10,000 as her share of rents and profits, and one-third of the price, with interest, for which one lot was in 1935 sold to the City of Dallas; and is asking an equitable lien therefor on appellee’s shares. The ap-pellees pleaded the four year limitation as *372to the money recoveries, and the five and ten year limitations as to the land. The majority opinion holds that because a division of the lands of Alette Sullivan was decreed by virtue of a presumption of his death, the title to Alfred’s share vested in appellees as “contingent and conditioned upon” Alfred being really then dead, and possession under the decree “was not hostile, but subordinate to and in recognition of the title of Alfred if alive”, so that no adverse possession could. exist as to Alfred’s share unless by a renunciation of the decree and “a giving of actual notice to Alfred Christiansen that he (Chris Christian-sen) was holding the lands contrary to the decree and hostilely and adversely”.
Such a view of the law is alarming to me. Suppose land devolves by will or deed on one as life tenant, who has been absent so as to raise a presumption of his death under the statute; or that property of a deceased person is partitioned as here, one co-tenant being similarly absent; citation of the absent person is duly made under the Texas law, as was done here, and the court presumes and adjudges him dead and puts the remaindermen or the other co-tenants into possession. If there can be no limitation against the demand of the absent one, and no effectual citation of him to assert his right, the title must be incurably clouded for perhaps seventy-five years; and a person by absconding long enough could get the whole property through his claim for rents and profits and interest. The suggested actual notice to the absent person to start adverse possession is not practicable, for his whereabouts is unknown. A purchaser also would necessarily be put on notice from the record of the “condition” in the title and would take subject to it.
Article 5541 is in the chapter on limitations. Its history is this: In 1840 the Legislature of Texas adopted generally the common law of England, Vernon’s Ann.Civ. St. art. 1, and expressly repealed the limitation laws and prescriptive title laws of Spanish origin. In 1841, referring to this previous legislation, it enacted a comprehensive Act entitled “An Act of Limitations.” 2 Its Section 10 was the present Article 5541. The sections preceding limited suits for money demands and for personal property. Those following fixed the limitations for suits for land under adverse possession, about as they are now. It does not seem reasonable to think the Legislature in Section 10 was erecting an island of immunity in the surrounding sea of universal reposeful limitations. Such immunity ought not to be implied. The section says the estate and rents and profits shall be restored to the presumed dead, but it does not say the restoration may be had at any distance of time. It says “restored to him,” not mentioning his heirs and assigns, though I would not stick on that, but would think an heir or. vendee might assert the demand, it being a property right, in the proper limit of time. I am unable to think the statutory right to have restoration is without a time limit. The right to recover rents and profits ought to be limited as in other cases. The right to recover the land too ought to stand like other cases between co-tenants or life-tenant and remaindermen.
Alfred knew his uncle and aunts and where they lived, but he never communicated with his father or his father’s family after 1901 when his father went to Dallas. The family never heard of Alfred’s wife, the appellant. The uncle and aunts never moved their residence. Alfred, forgetting hi9 kin, forgot also his property prospects through them. I do not see why he deserves any peculiar favor, because they did not know where he was and supposed him dead.
What would be the law aside from Art. 5541? In Cryer v. Andrews, 11 Tex. 170, decided in 1853, a partition decree was made among the heirs of a deceased person. They simply ignored a sister living in another State. The decree was held void as to the absent sister, but the taking possession under it was held a notorious act of ouster that started the running of limitation against her, though she did not know of it. This case was cited and followed in Edwards v. Humphreys, 89 Tex. 512, 36 S.W. 333, 434; and in Honea v. Arledge, 56 Tex.Civ.App. 296, 120 S.W. 508, 511; *373and Gaddis v. Junker, Tex.Civ.App., 29 S.W.2d 911, 919. Numerous cases hold that mere possession by one co-tenant to the exclusion of another does not show adverse possession or ouster; but that notice of adverse holding need not be actual, and exclusive possession alone may be continued for so long a time and under such circumstances as to warrant a jury in finding that it was notoriously adverse and sufficient to sustain limitation. Honea v. Arledge, 120 S.W. at page 511, and cases cited. Edwards v. Humphreys, 89 Tex. 512, 36 S.W. 333, 434; Mauritz v. Thatcher, Tex.Civ.App., 140 S.W.2d 303; Brown v. Phillips Pet. Co., Tex.Civ.App., 144 S.W.2d 358; Vaughn v. Kiesling, Tex.Civ.App., 150 S.W.2d 435, 436; Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81; Kouri v. Kelton, Tex.Civ.App., 178 S.W.2d 712; Houston Oil Co. v. Davis, Tex.Civ.App., 181 S.W. 851. The answer in this case asserts limitation not only because the partition decree is a binding judgment but also because of long exclusive possession, buying and selling of the property, improving it, and paying the taxes, of which a co-tenant would be bound to take notice. This separate defense I think deserves investigation, although the decree is not res judicata.
The partition decree does not expressly refer to Art. 5541, nor say that the shares it adjudges to appellees are given conditionally, or subject to the appearance alive of Alfred. It does say he is presumed and adjudged to be dead, and thereupon awards full title to the parties before the court. In entering under the decree they entered as claimants of the full unconditional title. There was a notorious ouster of Alfred and a possession adverse to him. The statute, though not mentioned in the decree, is nevertheless superior to it, and imposes a liability to make restoration to Alfred should he appear alive, thus making the judgment not really conclusive against him, but that does not prevent their claim of possession from being adverse.
Article 5541 has been the law of Texas for more than a century. This is apparently the first case in which it has been brought forward as arresting limitation. It did not create the presumption of death, which is old in the common law.3 It merely declares that a recovery of land had on the presumption is not a conclusive judgment, an estoppel; that the absentee has not forfeited his rights by seven years absence. It does not protect him from losing them by other means, including the limitation laws; nor prevent the possession under the judgment from being a notorious ouster. I think the district judge was right in so holding.
See W.O.W. Life Ins. Co. v. Cooper, Tex.Civ.App., 164 S.W.2d 729, Buenrostro v. American Nat. Ins. Co., Tex.Civ.App., 105 S.W.2d 393.
Laws of the Republic of Texas, Fifth Congress, p. 163.
Am.Jur., Heath, Sect. 18. There was no such presumption in the civil law. Id., Hayes v. Berwick, 2 Mart.O.S., La. 138, 5 Am.Dec. 727. But prescription runs in a case like this one. Louisiana Civil Code, Art. 78. 1 understand these principles of the civil law were of force in Texas prior to 1840.