On Motion for Rehearing
In our original opinion we held that the plaintiff’s claim of Kiker for her tenant could not be sustained on either of three possible grounds, namely, that she had made a contract with him, that he or the Bank was estopped to deny a tenancy, under her, and that if Kiker’s occupancy after 1938 were .given the effect of interrupting her adverse possession and thus defeating it in favor of the Bank, she would have been imposed upon. It seemed to us then, and so it seems now, that these were the only possible grounds on which plaintiff could have claimed Kiker as her tenant and used his occupancy to complete ten years of adverse possession; and we have nothing to add to the comments in our opinion respecting contract and estoppel. However, the argument filed in support of the plaintiff’s motion for rehearing has emphasized this matter of imposition, and we add the following comments regarding it.
1. Even though the land in suit was in the adverse possession of the plaintiff when the Bank made its lease to Kiker in the latter part of 1941 or when the Bank made the subsequent-leases to Kiker, the Bank had the power to make a valid lease of said land; arid plaintiff’s adverse posses*945sion did not affect the validity of those leases. The old. rule at common law was to the contrary. ‘ Seer Taylbr’s Landlord,and Tenant, 9th Ed., § 85; Tiffany on Landlord and Tenant, § 75. Tiffany noted that the old rule no longer’ existed in many jurisdictions and we think that this rule does not obtain in this state since it is held that the owner can convey land in the adverse possession of another and, subject to exceptions not applicable here, choses in action are ordinarily assignable. See Carder v. McDermett, 12 Tex. 546; Perry v. Smith, Tex.Com.App., 231 S.W. 340; 5 Tex.Jur. 7, Chap. II; 32 Am.Jur. 49, § 26.
Since Kiker, having made his lease in 1941, later went upon the ground and paid the Bank rent instead of repudiating his lease (he testified that he entered under this lease; Supplemental Findings, pp. 21 to 24, inclusive) we see no reason why the Bank should not claim him for tenant. Whether any effect ought to be given such a tenancy against the plaintiff is a different matter and is really the question involved in plaintiff’s claim of imposition and secret entry.
2. An adverse possession can be interrupted by ouster, and thus it may be inferred that the conduct claimed by .the owner to work an interruption of the possession must be such as would put an ordinary prudent person on notice that he actually had been ousted. Aside from this, it is the general rule that the owner can not interrupt an adverse possession secretly, by stealth. See: 2 C.J.S., Adverse Possession, 142(a) and (b), p. 704; 2 C.J. 96, §118; 1 Am.Jur. 889, §§ l75, 176, and 177; 1 R.C.L. 723, § 39.
Kiker’s entry and occupancy in 1942 (and after) was open and evident, of course, since the land in suit was farmed by him for months, and unless the circumstances of this case make an exception the plaintiff was bound to know, without notice from anybody, that the Bank might at any time elect to exercise any or all of its rights as owner and the plaintiff’s claim of imposition involves an extension of this rule about secret entry. In essence, as we think her position to be, it is that if Kiker was a tenant of the Bank and entered and occupied the land in suit under his 1941 lease from the Bank, then Kiker’s tenancy’ under the Bank ought to be treated as a disguise for the Bank and Kiker’s entry under his lease ought to be treated as a secret entry, and his occupancy as a secret ouster, by the Bank because the plaintiff did not know of Kiker’s lease from the Bank and assumed that Kiker was her own tenant.
Of course, this argument does not help the plaintiff, unless the Bank or Kiker ought to have told plaintiff about the Bank’s lease to Kiker, that is, unleqsi ‘the Bank or Kiker owed plaintiff a duty to tell her of this lease which has some rational, connection with the question, whether Kiker’s occupancy ought to be treated as a seerqt entry by the Bank.
It is our conclusion that whether the-Bank or Kiker owed plaintiff such a duty to tell her of the Bank’s lease to Kiker depends on what the Bank or Kiker actually knew, not on some constructive knowledge which the operation of some rule of law charged upon them.
And the single fact that plaintiff' did not know of the Bank’s lease to Kiker is not enough to give her the benefit of Kiker’s occupancy for as we stated, unless, the facts of this case make an exception, the plaintiff was bound to know without nor tice from any one, that the Bank might at any time elect to exercise its rights as owner.
3. Since she claims benefit of the rule that entry in secret does not interrupt, an adverse possession, the plaintiff had the burden of proof under said rule and was bound to show by a preponderance of the evidence that all facts existed on which the application of the rule depended. This was a matter of replication by her.
4. At this point we come to an apparent conflict in application between two rules of law. One is that already stated, that a secret ouster will not interruptail adverse possession. The other is, that *946ordinarily an adverse possession will not divest title unless it is such as gives notice that it exists and is adverse. Concerning this rule of decision see Roseborough v. Cook, 108 Tex. 364, 194 S.W. 131. Under the rule first stated plaintiff says that she ought not to lose because, she says, her ouster was secret and unknown to her. Under the second the Bank may say that it ought not to lose because it had every reason to belieye that it had a tenant on the land in suit several times during the period of adverse possession which the ‘ plaintiff claims and, accordingly, that the adverse character of plaintiff's possession was concealed from it. The question raised is, whether under the facts of this case the Bank is to be penalized for Kiker’s failure to tell the plaintiff about its lease to him, or, to put the question more precisely, whether the conduct of the owner’s lessee shall have the same effect against the owner under the facts of this case as might be attached to conduct by the owner’s agent. A lessee is not, of course, ordinarily the agent of the owner-lessor, and Kiker was not the agent of the Bank. He was, instead, only the grantee of an estate in land.
We have concluded, although with hesitation and doubt, that the difference between the capacities of agent and lessee is too great to justify our treating the entry and conduct of the one as legally equivalent to the entry and conduct of the other in considering the question of secret ouster; and that unless the owner-lessor is privy to misconduct by the lessee he will, at least ordinarily, not be affected by the lessee’s conduct when the question of secret ouster arises. The owner-lessor ordinarily has no right to control the lessee (the Bank had no right to control Kiker), and to disregard the difference between agent and lessee when considering the question of secret ouster might permit a fraud to be worked on the land owner.
We hold that under the evidence, the Bank was not privy (or to state the matter most favorably to the plaintiff and in terms of the plaintiff’s burden of proof, was at least not shown to be privy.) to Kiker’s failure to-tell plaintiff of his lease from the Bank or to any misconduct by Kiker toward plaintiff which concerned his entry into and occupancy of the land in suit or his relation to the Bank, if such misconduct there was (and we think that none was proved) and that the Bank never violated any duty toward the plaintiff, or referring again to the burden of proof was at least not shown to have violated any duty, and that for these reasons the plaintiff’s ignorance of the Bank’s lease to Kiker made in 1941 is immaterial and does not preclude the Bank from claiming advantage of Kiker’s occupancy in 1942.
As for the Bank being privy of Kiker’s conduct, all the Bank did with Kiker was to lease him the land and to accept its rent. There is no evidence that the Bank had any information about the agreement of 1938, nor was there evidence that the Bank knew or suspected Kiker of having farmed the land in suit in 1938. Pondrom did say, as we construe his testimony at S.F. 10 that he “had a pretty good idea” that Kiker was then farming on his mother-in-law’s land but we do not construe this testimony as showing that he knew or suspected that Kiker had been farming the land in suit, it seems rather to’ have been Pondrom’s intention to say that he did not know Kiker had farmed the land in suit under the plaintiff. Further, Pondrom testified that when he made the first lease to Kiker in 1941, in behalf of the Bank, Kiker did not tell him that he proposed to make a lease with plaintiff for her own part of the land in the enclosure. (See S.F. 25) Still further, according to Pondrom and Peyton, the Bank did hot actually know of plaintiff’s adverse claim until shortly before the suit was filed in 1951. We note that Kiker said (S.F. 326) he did not tell the Bank of plaintiff’s intention .to claim the land, although he had learned of this in 1947, and Huffman said (S.F. 190) that he had not told the Bank of the declarations made to him. We said, in our opinion, that the Bank did not know of plaintiff’s adverse claim until shortly before this action was filed, and plaintiff says that it was an issue of fact, whether the Bank had this knowledge, because the Bank’s witnesses who testified on this matter were of*947ficers of the Bank. It may be that plaintiff is right here but if the Bank’s knowledge or not of plaintiff’s adverse possession is material to plaintiff’s claim of secret entry or imposition, then under the rules stated above, the plaintiff had the burden of proving that the Bank did have that knowledge when it made the lease to Kiker in 1941 and when Kiker farmed on the land in suit during 1942, and as we read the proof there is no affirmative evidence, circumstantial or otherwise, that the Bank had such knowledge. See pages 13, 14, and 15 of our supplemental findings in addition to matters already mentioned. Even though the jury had the right to disbelieve the Bank’s officers the jury could not then, without affirmative evidence in addition, find that the Bank actually did have notice. Pondrom said that he had be'en down to the land as early as “about 1940”, and he had seen, a fence about the enclosure, and he knew, the land in suit was in the enclosure, and the jury could have found that he saw the fence which plaintiff’s witnesses said had been put up in 1938, two years or more before. However, this is not enough to support a finding that Pondrom had actual knowledge of the plaintiff’s claim when he made the lease to Kiker in 1941, or when Kiker farmed in 1942, and it is the actual knowledge of the Bank’s officers which is material to plaintiff’s claim of imposition, disguise, and secrecy, not the constructive knowledge charged an owner under the statutes of adverse possession. The Bank and the plaintiff were not tenants in common and, if we put aside plaintiff’s claiming advantage of an occupancy by one whom the Bank thought its own tenant, the plaintiff’s adverse possession, if suitably evidenced on the ground, could have operated against the Bank even though the Bank never did have actual knowledge of the possession.
These comments also show that the Bank violated no duty to the plaintiff or to revert again to the burden of proof, serve at least to show that no duty was proved.
Our conclusion requires that the motion for rehearing be overruled. The motion has assigned error to our rendering judgment instead of remanding the cause, on the ground that the evidence was not fully developed; but we think the evidence pertaining to the Bank’s connection with Kiker and his conduct toward the plaintiff has been developed so far as to show that a retrial would add nothing to it and thus this evidence, which we think controlling, may be said to have been fully developed.
5. However, even if we were to hold that when one who has a lease from the owner enters secretly or by imposition upon the adverse claimant, this entry ought to be given the same effect as a like entry by the owner himself or by the owner’s agent, we are still of the opinion that plaintiff failed to prove her case.
We proceed first to a consideration of some parts of the evidence.
Plaintiff argues that the leases from the Bank to Kiker were .secret. Plaintiff testified that she had not known of them, and some other witnesses, friends of Kiker, said they had not but there is ho evidence that information about the leases was deliberately suppressed and there is some evidence that it was not suppressed. See p. 23 of our supplemental findings.
In our opinion we stated that Kiker first learned of plaintiff’s adverse claim in 1947. This conclusion was based on Kiker’s testimony,, and plaintiff says that Kiker’s testimony only, raised an issue of fact for the jury because he was an interested witness, having made an agreement in 1950 or 1951 with the Bank, prior to the filing of this suit, to purchase the land (or, according to Peyton, the surface: S.F. 73) and there is evidence (See S.F. 7, 8; 302) that the agreement is still in force, to be performed if the Bank wins this suit. So, it may be said that Kiker was interested in seeing that plaintiff lost the suit and plaintiff, in fact, now argues that Kiker is her real adversary and the true defendant. In addition to pointing out Kiker’s interest the plaintiff also argues that Kiker was charged with knowledge of her adverse claim by circumstances.
We will first consider the argument that Kiker was charged with knowledge of *948plaintiff’s adverse claim when he dealt -with the Bank. If it he meant that this information was charged by law, then the notice given would be constructive, not actual, and as we have stated, we think that only actual knowledge counts on plaintiff’s claim of a secret entry.
Then, will the Circumstances in proof support a finding that Kiker actually did know or suspect when he took his lease from the Bank in 1941 or when he farmed the land in suit in 1942, that plaintiff claimed the land adversely? Kiker testified that he first learned of plaintiff’s adverse, claim, or of her intent to claim the land, from plaintiff’s son; Rube Wingate, and the evidence is that this occurred in 1947 or later. In our original opinion we accepted this as true. Did this testimony, considered with the other circumstances, including Kiker’s agreement for the purchase of the land in suit, only raise an issue of fact for the jury?
The circumstances to which we referred may be summarized in plaintiff’s favor as follows: Kiker joined in plaintiff’s fleed of 1937 to the Bank and it may be assumed that he knew, from this time, that the Bank owned the land in suit. In 1938, he made an oral agreement with the plaintiff that he might farm in rice all of the land in the enclosure which’could be farmed for that purpose. This agreement was to continue as long as he wished. He did grow a rice crop in the enclosure in 1938 under this agreement arid cultivated some of the land in suit. This was done under the said agreement and, he was the plaintiff’s tenant. It was also in 1938 that plaintiff restored the fence about the enclosure; and Kiker participated in this for plaintiff; he knew of this work and what had been done. After he concluded his 1938 farming operations, Kiker told plaintiff that he wanted to let the land in the enclosure lie follow, and he left the land and farmed elsewhere until 1942. He intended to return to tire enclosure and to farm there. During the interval between his 1938 and his 1942 farming operations in the enclosure, which covered a little more than, three years, plaintiff kept cattle in the enclosure. Ki-ker may or may not (see p. 161 Supp.Find;) have had some of his own cattle in there but it may be inferred that he knew during this three year period what-plaintiff was using the enclosure for. He may or may not (we cannot say) have known of Christ’s cultivation of the small area, described at p. 84 of our supplemental findings. According to Kiker’s testimony, one of his reasons for taking the lease from the Bank in 1941 was that the agency furnishing water for irrigation required this to be done.
These are circumstances which plaintiff would emphasize under the rule of decision hereinafter quoted, as showing the plaintiff’s possession and use of the. land in suit and Kiker’s knowledge of this possession and use; but there are other circumstances which must be considered, too. Thus, it was open to Kiker to see, and he had been acquainted with the land for many years before, 1941, that the plaintiff owned or rightfully controlled most of the land in the enclosure.and had good reasons .of expense and convenience for maintaining the enclosure. and not separating the Bank’s, land from that she owned or leased. This, circumstance is to be considered with the fencing work done in 1938 and later. Further, when she decided to claim the land the plaintiff told no one about her intention except her two sons, Rube, and Hal. Wingate, and there-is no evidence that she ever told any one else. The evidence is that she never had told Kiker of this intention. See pp. 11 et seq. of our supplemental findings of fact. The Only declarations to third persons about the plaintiff’s claim which were proved was that to which Kiker himself testified, unless we are to count that made to Huffman, and this, seems to have been more an expression of an intention to claim some defect in the Bank’s title than to claim adversely. See pp. 13 and 14 of our supplemental findings.’ Further, the plaintiff had not rendered the land for taxation or paid taxes levied on it. See pp. 218, 213 and 214, 217. to 221, inclusive, of the statement of facts. Further, althoqgh plaintiff and ;her sons Rube, and Hal Wingate testified *949and presumably would have some information about the matter, Kiker’s testimony concerning his first information of plaintiff’s claim was not contradicted or’ .‘the subject matter of this testimony discussed by any other witness. The plaintiff seems to have relied on her conduct-'respecting the land to-notify the world of- her'intentions; and there was something about it suggesting secrecy, a desif’e.ñot to have it widely known; and in our ’Supplemental-findings (p. 11) we expressed this characteristic of plaintiff’s claim in the following words: “The plaintiff’s claim of adverse possession seems not to have been advertised, although it was not suppressed.” -
In support of her position that Kiker was charged with knowledge of her claim, the plaintiff seems to rely on a rule of circumstantial evidence much used in actions in which a claim of title by adverse possession is asserted against one .claiming to be the owner. This rule sometimes, though not invariably, treats possession and use for the statutory period as being circumstantial evidence of adverse claim, as well as being proof of compliance with other requirements of the statute. Justice Williams stated the rule as follows in Hartman v. Huntington, 11 Tex.Civ.App., 32 S.W. 562 at page 563: “Ordinarily, when a person in possession of land is shown to have used and enjoyed it as owners of lands usually do, the natural inference is that his possession was taken and held for himself as owner, and that it was ‘therefore inconsistent with and hostile to the claim of another.’ This inference prevails unless something else is shown to qualify and explain the possession.” The court then held that other evidence had rebutted the inference of claim by showing the occupant’s intent in beginning his possession. Other sorts of circumstances were held to rebut this inference’ of claim in the following cases: McKee v. Stewart, 139 Tex. 260, 162 S.W.2d 948; Hilbert v. Green, Tex.Sup., 242 S.W.2d 879; Boy v. McDowell, Tex.Civ.App., 207 S.W. 937. None of these decisions involves the questions we are considering nor does any other which we have seen; but the decisions just cited do show that whether an inference of adverse claim, ought to be drawn from possession and use depends upon the circumstances of the particular case.
We are .not satisfied that, this rule of decision ought to be applied to this case, where we are concerned with actual knowledge, but regardless o.f this, it must be said of the case under review and in.reference to the rule of decision just stated, that possession has different meanings according to what the person.observing it knows. A stranger, not knowing the facts, might well have thought the plaintiff the owner; and the Bank, knowing that plaintiff, had ho authority to use the land and learning of plaintiff’s conduct might (subject to the rule about a vendor remaining in possession which the Bank invoked) have suspected that plaintiff intended, a claim. But at the time of his lease in, 1941 and in 1942 Kiker was neither in the position of the stranger nor in that of the owner. He knew (we are using the summary of proof favorable to the plaintiff which has been made above) that the plaintiff was not the owner and he also knew that plaintiff had assumed to restore the fence around the enclosure and had used the land, once for farming in rice and then for three years as pasture for cattle. This covered only about four years before his entry in 1942; and it was not enough to satisfy the five or the ten year statutes of adverse, possession From this he might have drawn the inference that plaintiff assumed to exercise a right but, could he say what kind of a right this was? The plaintiff might have had authority to do what she had done, or she might also have intended no claim at all either.vyas a. possibility. A part of her conduct, namely the restoration of the fence and the pasturage for cattle if considered-plone vyould particularly exhibit this ambiguity because the land, in suit divides the enclosure; and, it would hayb been expensive and,inconvenient.for.plaintiff, to have separated, her land and that she leased from, the land in suit. See p. 6 and pp. 2 and 3; of our supplemental, findings. The fact that plaintiff had assumed in 1938 *950to lease for fanning all of the land in the enclosure which could be cultivated in rice, and to continue this arrangement for an indefinite time, is not so uncertain in implication as the restoration of the fence and the use for pasturage but could the jury say that, knowing this and acting on it, Kiker knew or actually had in mind a suspicion that plaintiff, so soon after her deed to the Bank, had decided to reacquire title by adverse possession? Or if not in 1938, then in 1941 or 1942? Adding together both softs of use by the plaintiff over the period of about four years before Kiker’s entry in 1942, we have to consider the element of secrecy attaching to plaintiff’s claim, and there is another matter which is relevant: Kiker owned no interest in the land in suit and was not concerned with whether the plaintiff claimed it adversely. Protection of his own interests did require him to learn whether his landlord, if the plaintiff, had authority to lease the land in suit to him (whether he did or not we cannot say) but it did not require him to go further and find out whether plaintiff also intended to claim the land adversely, that is, whether the plaintiff intended to reacquire title to the land by adverse possession.
The question is whether the jury could have found that Kiker actually knew or had in mind the suspicion, when he took his first lease from the Bank in the latter part of 1941 or when he farmed the land in suit in 1942, that plaintiff was claiming the land adversely to the Bank. Kiker’s testimony puts his first information about this claim in 1947 or later, and he was not contradicted. The only evidence which might prove that he was wrong and did have this knowledge in 1941 and 1942 consists wholly of circumstances. It is our conclusion, bearing in mind Kiker’s own testimony and the absence of contradiction, the fact that plaintiff’s conduct need not have been hostile to the Bank, the element of secrecy attaching to plaintiff’s claim,' and the fact that Kiker was not concerned with whether plaintiff claimed the land, that the evidence would not support a finding that he did have the actual knowledge or suspicion mentioned at the times stated.
Because of this conclusion it is not material whether Kiker’s testimony concerning the time he first learned of plaintiff’s claim only raised a question for the jury , or not, for the burden of proof was. on the plaintiff and if the jury could disbelieve Kiker, then there was no affirmative evidence to show when Kiker really did find out about her claim. But we' have not changed our opinion that Kiker’s. testimony as to when he first learned of' plaintiff’s adverse claim may be accepted as true. This opinion was based on the secrecy accompanying the plaintiff’s claim and on the absence of any contradiction of' Kiker, although persons testified who could,, presumably, have given information about Kiker’s knowledge of plaintiff’s claim or lack of it; and these circumstances support Kiker’s testimony.
In our opinion we adopted as true Ki-ker’s statements that he did not pay two rents, that is, that he paid the Bank rent for that part of the land in suit which he used and paid the plaintiff rent for her land. We adhere to our conclusion for the reasons given in our supplemental findings;. there are some circumstances which support it. See pp. 25, 26 and 27 of our supplemental findings. And all plaintiff testified was that Kiker told her he was paying her for her “rice ground”. I do not. See that Gilmore’s actions subtract anything from Kiker’s testimony about what, he did, himself.
(6) Having discussed some elements of' the proof let us now consider as a whole the evidence on which plaintiff must depend to raise an issue for the jury, whether Kiker’s occupancy of the land in suit, or that part of it he farmed in rice in 1942 represented an imposition on plaintiff or a-secret, that is, concealed or disguised entry-by him. This evidence may be summarized in plaintiff’s favor as follows:
Kiker is plaintiff’s son-in-law.
*951Kiker has known since the plaintiff’s deed of 1937 to the Bank that the Bank had the title to the land.
In 1938, the plaintiff made an agreement with Kiker that he might farm the land in the enclosure in rice, and Kiker did farm in the enclosure in 1938, under this agreement and as the plaintiff’s tenant. The authority conferred by the agreement extended to all the land in the enclosure and Kiker, farmed on the land in suit in 1938. This agreement was to continue as long as Kiker, and of course, the plaintiff, wished. Since 1938 the plaintiff has regarded this agreement as being in force and has refused requests by one of her sons to be substituted for Kiker. According to plaintiff this is the only agreement she made with Kiker.
Also in 1938 the work was done on the fence which is described in our opinion and supplemental findings, and Kiker participated in this work.
After his farming operations for 1938, Kiker told the plaintiff that he wanted to let the land in the enclosure .lie fallow, and he removed his farming operations to another area and did not farm in the enclosure again until 1942, more than three years later. Plaintiff in the meantime had cattle in the enclosure and Kiker may, or may not (see p. 161 Supp.Find.) have had some of his own in there. At any rate, Kiker must have known that Plaintiff had some cattle in the enclosure. He also must have known that plaintiff owned or rightfully controlled most of the land in the enclosure and had ground for not separating her land from the Bank’s.
In the latter part of 1941, the Bank leased to Kiker for farming in 1942 that part of its land in the enclosure which the parties thought to be cultivable in rice, and Kiker did farm this land in 1942 and paid the Bank for the use of this land the rent which was reserved in the lease.
Kiker did not tell the plaintiff of this lease from the Bank and plaintiff did not know of it while Kiker was. farming in the enclosure in 1942. From this and from some general statements by plaintiff as to Kiker having kept the “lease”, that is, the agreement of 1938, and that “it” had been leased ever since the fencing (S.F. 202, 203) it may be inferred that plaintiff assumed Kiker to be her tenant of all the land he was farming in the enclosure. See p. 27, Supp.Find. This is all we meant by-the following statement in our opinion: “We assume that this evidence raised an issue for the- jury,, whether the plaintiff knew that Kiker intended to pay her rent only for her own property.” Kiker actually testified on deposition that he told plaintiff he was paying her rent for her land. (S.F. 318, 319): and it is not clear to us that this testimony at S.F. 332 and 333 contradicts these statements.
However, information about this lease from the Bank was not suppressed and Kiker made no misrepresentations to the plaintiff about it.
There is no evidence, except plaintiff’s adverse claim, as to what plaintiff would have done had she known of Kiker’s leases from the Bank.
In 1942 Kiker also farmed plaintiff’s land in the enclosure and he did this under his 1938 agreement with the plaintiff. This is all his testimony'at S.F. 331 and 332 means. He paid the plaintiff rent for this' land, not for the Bank’s land, and he did not tell plaintiff that he was paying her for the Bank’s land. Instead, he told her that-he was. paying her for her “rice ground” — that is, her own land. (p. 30 Supp.Find.) It may be inferred that plaintiff did not then know that Kiker paid the Bank rent since she did not know of the Bank’s lease, but she lived on the land and she and her sons, who lived near by her (p. 3 Supp.Find.) had Kiker’s cultivation before them and they could have quickly and easily determined whether Kiker had paid plaintiff the right rent had they, been minded so to do. These circumstances bear on Kiker’s good faith. On the other hand, Kiker was plaintiff’s son-in-law, and this fact would normally affect the sort of inquiry plaintiff might make. It would also normally affect the *952truth of statements Kiker might make to her and the good faith he might bear toward her.
Under plaintiff’s theory of the facts, the evidence does not show how Kiker.got into the enclosure in 1942 or when he made his arrangement to do so. On deposition Kiker said that he had made separate agreements with the plaintiff and with the" Bank for the use-of the land owned by each, for the year 1942 and for the years afterward. when he farmed in the enclosure, and he never did contradict this testimony. However, plaintiff testified that only one agreement was made between her and Kiker, and this was the agreement of 1938. Obviously, Kiker had to make some kind of an arrangement to get into the enclosure if cattle were in the enclosure (See p. 34, Supp.Find.) but, as we have stated, the evidence does not show when and how this was done.
The evidence will not support an affirmative finding that either the Bank or Kiker liad adtual knowledge of plaintiff’s adverse claim or suspected this when the Bank made the lease to Kiker in 1941 or when Kiker farmed the land in 1942. We think that Kiker’s statements showing that he did not know, of the claim at that time ought to be. taken as true, but it is not material whether this be. done or not.
There is nothing to show that the Bank ever knew of the 1938 agreement between Kiker arid piairitiff before the present controversy arose, and no circumstance is in proof which would charge the Bank with knowledge, of that agreement. Pondrom testified that Kiker did not tell him of the intention to lease, land in the enclosure from plaintiff.
Under our conclusion that plaintiff had the burden Of proof to show that if Kiker be regarded as the Bank’s tenant then Kiker’s entry and occupancy in 1942 was a disguise for the Bank and the Bank’s entry and Occupancy would] in effect, ‘be secret, the plaintiff failed to raise an issue for the jury "that anything of the sort had happened. The theory of entry by stealth wholly depends on the fact that Kiker did not tell plaintiff of his 1941 lease from the Bank (we are not considering the period after 1942); and the Bank had nothing to do with this. And since there is nothing to show that the Bank knew about that 1938 agreement between plaintiff and Kiker and for the reasons stated in Section 4 of the opinion, there is no reason for charging the Bank with the burden of notifying plaintiff about the lease of 1941, if under any circumstance the Bank might be so obligated. Kiker’s case is different because of his close relation to plaintiff (son-in-law) and because of his 1938 agreement with her. If Kiker was under a duty to tell the plaintiff of his lease from the Bank th,en the plaintiff might claim that she had been imposed upon by Kiker in not telling her of the lease. Did Kiker owe plaintiff such a duty? Let us consider first only the agreement. This did not make. Kiker plaintiff’s tenant while he was out of possession and it would not raise, alone and of itself, any estoppel against Kiker. It was not a contract and did not bind Kiker, but perhaps it did put him under some kind of a duty, under some circumstances., of giving plaintiff notice that he would no longer act under it. This, however, would be an incident of its nature as an agreement which was to continue indefinitely and would not be a consequence of the fact that if plaintiff was not told about the lease from the Bank she would be injured in her rights as an adverse claimant. That is, the consequences to be expected from a simple failure to notify plaintiff of termination would be such as might be predicted from a simple breach of contract—unless, of course, Kiker knew or had in mind the suspicion that plaintiff was an adverse claimant. How could plaintiff be injured by Kiker’s limiting his performance of the 1938 agreement to land plaintiff owned or leased? We do not see that such a duty to notify plaintiff of termination, or the consequences of its breach, has any connection with the question, whether Kiker’s occupancy under the Bank’s lease ought.to be treated as a secret ouster.
*953Let us consider next the question, of good faith between Kiker and plaintiff, apart from any question of breach of contract. Did such good faith require Kiker to tell plaintiff of his 1941 lease from the Bank? Did he act in bad faith in not telling her? It seems to us that no question of such good faith could arise unless Kiker knew or suspected that his failure to disclose this information to plaintiff would do her some injury or be in conflict with some right she had. As for the right to occupy, that was his; he had a lease from the owner, and the rent he would pay the Bank was no loss to plaintiff because she was not entitled to it. What other right could plaintiff have had? Unless he knew or suspected that plaintiff had an adverse claim to the land there was no reason for Kiker to think that information about the lease from the Bank was material to plaintiff’s rights or any concern of hers; and it seems to us that if Kiker did not know of plaintiff’s adverse claim or suspect its existence he owed plaintiff no duty of good faith to tell her of the lease, because the lease was something, which
otherwise did not concern her. The Bank owned the land arid had the power to and the right to lease it, and Kiker, being out of possession and thus not then being the tenant of plaintiff, had the right to take a lease on the land in suit from the Bank, and having done so had a right to enter upon the land and farm it. Neither by contract nor by estoppel was he barred from doing this. We think that Kiker did hot know of plaintiff’s adverse claim when he farmed the land in 1942, and it seems an unusual sort of imposition for him to attempt on his mother-in-law by farming operations which necessarily extended over months and, in effect, were dpne and carried on before the eyes of plaintiff and her sons and when, the rent which Kiker paid the Bank instead of the plaintiff was a material addition (one which would ordinarly have been missed) to the rent he paid the plaintiff. However, the plaintiff not the Bank, had the burden on this claim of secret entry and imposition and, so, we think, had to show that Kiker, knew of her adverse claim or suspected the same, and we think that she failed to do so.
Why, then, did Kiker fail to tell plaintiff about the 1941 lease from the Bank? Did he fear that she would bar his entry into the enclosure? That she would terminate her oral agreement with him? Can bad faith from this fact alone be inferred? We think that the evidence does not--show why Kiker failed to tell the plaintiff about the lease; he may as well not have done so because he thought it no - concern of plaintiff’s as that he wished to take advantage of plaintiff. The inference of bad faith from his failure to tell plaintiff amounts to no more than a suspicion at most, it does not exceed the scintilla held insufficient in Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.
On page 5 of her argument in support of her motion for rehearing plaintiff has directed our attention to evidence at page 300 of the Statement of facts"which shows that Kiker was to pay plaintiff $3 an acre, canal survey, as rental for the land which he farmed in 1938. We accordingly withdraw the statement on page 25 of our supplemental findings that “we infer that he paid some rent.” We adhere to the statement accompanying that corrected that “there is no evidence as to the amount of the rent paid the plaintiff in 1938 by Kiker:”
We do not agree with plaintiff that Kiker’s testimony, at S.F. 300 shows that he had agreed to pay (and that plaintiff had agreed to accept) a future rental of $3 an acre. As we construe the evidence concerning the oral agreement of 1938 between plaintiff and Kiker it was the intention of the parties to give Kiker no more than a preference and to bind the plaintiff no further. We think that she was free, to demand more rental if she wished just as we think Kiker was free to farm only so much of the land as he wished or was free to terminate the agreement when he wished.
In paragraph No. 11 of the motion for rehearing plaintiff has assigned, error to *954the sentence stating that “judgment for title and possession must be rendered in behalf of the defendant bank and against plaintiff” for the reason that such relief was not prayed for. Plaintiff is correct and the quoted statement is withdrawn but the concluding paragraph of our opinion states that judgment was rendered that plaintiff take nothing against the defendant, and the correction which we have made is immaterial to the appeal.
The motion for rehearing is overruled.