On Motion for Rehearing.
In his motion for rehearing appellee asserts that the evidence was such as to warrant a presumption of fact, as distinguished from a presumption, of law, that appellant A. J. Smith had executed a deed conveying the lot in question to J. R. Gaut. He contends that the finding of the trial court to that effect, being a question of fact, and supported by testimony, is binding upon this Court and that we were in error in holding such presumption was not warranted by the evidence. We held that the presumption was not warranted because there was nothing in the testimony which indicated a deed had actually been executed by appellant nor anything which revealed knowledge or acquiescence of appellant concerning Gaut’s possession of the lot nor anything which brought home to appellant and put him upon notice, that Gaut was claiming title to the property.
In support of the motion appellee cites us to the cases of Humphreys v. Green, Tex.Civ.App., 234 S.W. 562; Arthur v. Ridge, 40 Tex.Civ.App. 137, 89 S.W. 15; Brewer v. Cochran, 45 Tex.Civ.App. 179, 99 S.W. 1033; Dailey v. Starr, 26 Tex. 562. A careful reading of those cases will reveal that in each of them there was present one or more of the conditions which we held to be essential to a presumption that appellant had executed the deed which was alleged to have been lost.
In the Humphreys case it was shown that W. F. Hardin, successor in title to the alleged grantee in the lost deed, three years prior to his death in 1905, executed a right-of-way deed to Security Oil Company under which it procured the right to construct a pipe line across the land; that the deed was placed of record and the privilege was exercised by the oil company for more than ten years with no protest from William Green. It was further shown that Hardin’s daughter rented» the land to a tenant and that although William Green lived within two or three miles of it for a number of years, he made no protest or adverse claim of any kind. It was also shown that the land was sold under a judgment against J. B. Simpson, through whom appellant claimed, to her ancestor, Wm. F. Hardin, and, in the ancient constable’s deed, it was described in part as the same land conveyed to Simpson by B. M. Green, appellee’s ancestor, by deed dated April ■18, 1875.
In the Arthur case it was shown that Lindsey, the supposed grantor in the alleged lost deed, had established his home on a certain 640 acres of the Lindsey league ; that Matthew Earle, his brother-in-law and alleged grantee, both before and after the death of Lindsey, openly asserted title to-the rest of the league with the knowledge and approval of Mrs. Lindsey, who was Earle’s sister and the sole devisee of her husband, which assertion and claim continued for many years before and after her death. Earle’s claim to the land was also recognized and acquiesced in by the surviving children after the death of Mrs. Lindsey.
In the Brewer case it was shown that the alleged grantee in the lost deed was negotiating for the land; that he sent his agent to the owner at Beaumont for the purpose of purchasing it; that the agent afterwards wrote him a letter in which he requested the immediate remittance of $600 for the purpose of closing the deal; and it was shown that entries in the cash book of the alleged grantee included the sum *855of $600 “sent to Junker”, the agent who, at the time, was negotiating the purchase. There also were recitals in a number of old deeds in appellee’s chain of title that the alleged lost deed had been theretofore executed by the ancestors of the appellant. The holding was that all this was sufficient to warrant the assumption that the deed had been executed.
The Dailey case involved an alleged lost power of attorney under which one Bean had sold the land as attorney-in-fact for Gavino Aranjo. It was shown that, before his death, Aranjo had made the statement that he had given to Bean the power of attorney authorizing him “to get and sell” the land. There were other circumstances such as long continued use and occupancy of the land.
Thus it will be seen that in each of the cases cited by appellee there was evidence indicating the execution of the deed, or of notice and acquiescence, or evidence of positive statements by the alleged grantors, concerning the claim of the alleged grantee in the lost deed to the land involved. The law is well settled here and in other jurisdictions .that the securing secretly or through false assertions by one of the possession of property rights of another will not invest the former with, nor deprive the latter of, its ownership. There must be something of a tangible nature to form the basis of a presumption even though it be a presumption of fact. In the absence of limitations and adverse possession under statutory provisions, there must be something which brought home to the owner the claim of the one seeking to hold his property before his holding can ripen into a presumption that the owner has conveyed it to him. Neither a jury nor a court trying the case without a jury is warranted in presuming that one who owns property has conveyed the same to another without a showing of some kind that a deed was executed or that the owner was put upon notice that the alleged grantee was claiming the property and exercising acts of ownership over it. Our Supreme Court held in an early day that courts of equity, and sometimes courts of law, have indulged presumptions of grants upon possessions comparatively brief; but, says the court, “such cases will be found, for the most part, to be cases in which the possession is aided by very strong equities in favor of the party in whose behalf the presumption is indulged”. Taylor v. Watkins, 26 Tex. 688. See also Texas Employers’ Insurance Association v. Mints, Tex.Civ.App., 10 S.W.2d 220; Garrett v. Hunt, Tex.Com.App., 283 S.W. 489; Drach v. Isola, 48 Colo. 134, 109 P. 748; Green v. Wilson, 194 Ark. 165, 105 S.W.2d 1074.
We have carefully considered the earnest contentions presented in the motion for rehearing but we find no reason to change the views expressed in the original opinion. The motion will therefore be overruled.