On Motion for Rehearing. Though the cases of Mayes v. Manning and Montgomery v. Noyes which we cited and relied on in our former opinion have not been expressly overruled by the Supreme Court, they have been, we have concluded, repudiated. "In suits for recovery of land it matters not whether the title asserted by the plaintiff be legal or equitable; if he has title sufficient to sustain an action of trespass to try title as distinguished from a mere equity which would entitle him to acquire title, his right of recovery will be barred only by adverse occupancy in the manner and for the length of time prescribed by the statutes of limitation relating to suits for the recovery of land." Loomis v. Cobb, Tex.Civ.App.159 S.W. 305, 309, writ of error refused; also the authorities there cited. As appellants have a presumptive equitable title, as distinguished from a mere right to entitle them to acquire title, we were in error in holding that their demand was subject to the doctrine of stale demand.
We erred, also, we believe, in holding that the court was authorized as a matter of law to find a lost grant to sustain appellees' title. The strength of the presumption of a lost grant where a party has been undisturbed in his possession for *Page 792 a great while has been increasing, and its rebuttable character has been steadily receding in the opinion of bench and bar, but such presumption still remains merely a presumptio juris — one for the jury to draw, and not a presumptio juris et de jure, one for the court to draw as a matter of law. Of course, if under the facts proved, reasonable minds could reach no other conclusion but that the long continued and undisturbed possession could be explained only on the presumption of a lost grant, then the court could presume same as a matter of law, or instruct the jury to find such presumption. No doubt, the justification for presuming a lost grant is always the same. Men seldom have rights of value which are unknown to them, and it happens more seldom still, if possible, that they will suffer themselves to be deprived of the enjoyment of such rights for thirty years or more. It is much more reasonable to conclude, after those who know the facts are dead, that the ones who are in the enjoyment of property and have remained so undisturbed for more than a generation, have the better right to such property, or were left so undisturbed because their better right was well recognized. That a person and his predecessor in interest have held the undisturbed possession of property constitutes the strongest kind of vindication and proof of such right. To permit some technical rule of construction to construe the possession away from those who have held it for sixty years, is highly unsatisfactory to judicial reason. But we are unable to hold that the presumption of a lost grant under such circumstances has become one for the court to make. This is a matter for the legislature to consider.
The same grounds of policy that authorize the jury to presume a lost grant to protect long continued occupancy of land, authorize the jury to presume from the sale of property by the surviving spouse, after the lapse of many years, that such sale was made for the purpose of paying community debts. Our Supreme Court said in Veramendi v. Hutchins,48 Tex. 531, 551, "We are of opinion, however, that, in view of the great lapse of time after the sale by Colonel Bowie, being over thirty years before suit brought, that for over twenty-five years before suit parties had been in possession, claiming under this bond [i. e., bond for title], which during all that time was of record; and that during all this time there is no evidence of any claim by Mrs. Bowie's heirs in opposition to the title bond, the jury might have been instructed that they were at liberty to presume that the facts existed which authorized Colonel Bowie to convey. * * * `A power to execute a deed will in many cases be presumed.' * * * In most cases where a deed would be evidence as an ancient deed without proof of its existence, the power under which it purports to have been executed will be presumed. * * * If the heirs of Mrs. Bowie knew that the land was held and claimed under this bond of Colonel Bowie's their failure to assert their rights for so long a period, during which it seems the land has been improved so largely, tends to raise a natural presumption that they knew `that no wrong has been committed.' * * * After the lapse of near forty years, it is not to be expected that direct evidence could be produced of the existence of community debts. The principal ground on which deeds over thirty years old, which have been acted on, and which come from the proper custody under circumstances free from suspicion, are admitted in evidence without proof of execution, is that the subscribing witnesses are presumed to be dead, and other proof beyond the reach of the party. * * * If a deed or a power of attorney may be presumed, why may not the facts which are equivalent to a power of attorney, and which, unlike a power of attorney, would not ordinarily be evidenced by writing, more readily be presumed?"
Appellees say that it ought to be presumed that Elizabeth Hamshire deeded the land in controversy to Louisa Cronea to pay community debts. They say, indeed, that they proved the existence of community debts, and that the existence of community debts does of itself authorize the sale of land by the surviving spouse. Certainly the power to sell community property to pay community debts does not include the power to give community property away, nor does it include the power to exchange property belonging to the community estate, unless it should be shown that such exchange was itself made to pay community debts. At any rate, if the existence of community debts is proved, and it is shown that the surviving spouse exchanged property as Elizabeth Hamshire did, it falls within the province of the jury, and not of the court, to indulge the presumption that the exchange of property was made to facilitate the payment of *Page 793 community debts. We cannot sustain the deed in this case on the presumption, made as a matter of law, that it was authorized as the exercise of the power to pay community debts by the surviving spouse.
We adhere, however, to our former conclusion that the recitals in the deeds were not sufficient to give notice that Elizabeth Hamshire was the wife of John Hamshire at the time she acquired the land, and his widow at the time she conveyed it. The mere fact that the recitals in the deeds were sufficient to indicate that Elizabeth Hamshire was a "Mrs." at the time of the conveyance to her was not sufficient to put a purchaser on notice that she was a married woman at such time. Griggs v. Houston Oil Company, Tex.Com.App., 213 S.W. 261. To paraphrase the language used in the Griggs case and apply it to the instant case we can say, "The deed of February 15, 1858, and September 21, 1876, gave notice that Elizabeth Hamshire was once married to John Hamshire, and that this marriage occurred prior to February 15, 1858; but there is nothing in the two deeds or elsewhere in the record to indicate that John Hamshire was living at the time the land was conveyed to Elizabeth Hamshire." Appellants lean heavily upon the fact that Elizabeth Hamshire was referred to in the deed to Louisa Cronea as the widow of the late John Hamshire. The word late as applied to the deceased husband of a widow is of inexact meaning, except that it is taken to mean that such a woman is still the widow of the deceased, described as her "late" husband. Such a term certainly doesn't mean, of itself, the widow of a man who has died within the last 30 days, or within the last thirty years. Until the day of Victoria's death, it would have been in accordance with custom to refer to Prince Albert as Victoria's late consort, or late husband. So we conclude that the recitals were insufficient to prevent Louisa Cronea from being an innocent purchaser for value.
If, however, we should be in error in our view that the recitals were insufficient to put Louisa Cronea on notice that Elizabeth Hamshire had a husband at the time she acquired the property, and that he died leaving heirs who inherited an undivided half interest, then we think it clear that all of the appellees that pleaded the statute of limitations were entitled to an instructed verdict. The undisputed proof showed that Louisa Cronea and family went into possession of the two hundred acre tract shortly after it was bought in 1876, and that the deed from Elizabeth Hamshire to her was promptly placed of record. This adverse possession, under a recorded deed, was maintained by Louisa Cronea and her family, who actually lived upon the premises until Louisa Cronea's death. Then in 1890, by deed dated December 20, 1890, and recorded, the children of Louisa Cronea partitioned this land among themselves, and continued to live upon this tract of land until such of them as sold their interest, moved off, but their successors in interest continued to use and occupy portions of the land, and at least one of Louisa Cronea's children still lives upon a portion of this tract. When the grantees in a deed take possession under it of any part of the land described in it, their possession constructively extends to the boundaries which it gives unless such possession is limited by the rule laid down in Turner v. Moore, 81 Tex. 206, 16 S.W. 929. Allen v. Boggess, 94 Tex. 83, 58 S.W. 833. The case of Turner v. Moore was the case in which the reasoning employed in Peyton v. Barton, 53 Tex. 298, where it was held that "`where there is only a partial conflict of surveys, the statute will not run in favor of an adverse occupant under the junior title, if his actual possession does not extend to that part of the land in dispute which is within the conflict.'" was extended in its application "to cases where, as in the present case [i. e., Turner v. Moore], there is a conflict between a senior and a junior title, though such conflict does not arise out of the overlapping of a junior survey or location on an older one." [81 Tex. 206,16 S.W. 930.] In other words, in the present case, each of the children of Louisa Cronea that went into possession of a segregated portion of the 200 acre tract, went into possession under and by virtue of the deed to their mother, and they occupied such segregated portions, as the heirs — as the representatives in legal contemplation of their mother. The portion of the 200 acre tract that was not partitioned (which is the 40 acres here in controversy) continued to be owned by such heirs as tenants in common, and the occupancy of any portion of the 200 acre tract by one of such heirs, whether segregated or not, was notice to the world that they were occupying such land in virtue of the deed to their ancestor which was duly recorded, and under the principle adverted to, such possession extended to the limits *Page 794 of the deed so that the possession of each of such children was possession of the 40 acres of land which continued to be held by such children as tenants in common under such deed.
Appellants' motion for rehearing is refused.