I cannot assent to the majority holding in this case. It is conceded by all parties that the precise question involved in this case has never been passed upon by the courts of Texas. As I view it, the majority *Page 166 in effect have held that where a plaintiff sues for title and possession of land which he acquired as a single tract, and describes in his pleadings as a single tract, he must show that the defendant, or each defendant if there be more than one, asserts some character of claim or title to all of the tract, in order to make a prima facie title under the common source statute. So far as the two specific tracts involved in this suit are concerned, they were created by conveyances made by the mortgagor to the predecessors in title of the two sets of defendants after the plaintiff acquired its deed of trust. Unquestionably, under all of the authorities, had the mortgagor Hairston not divided up plaintiff's tract by such subsequent conveyances, plaintiff could have established its prima facie title under the common source statute without the trouble and large expense of proving up its title from the sovereign. Yet the majority have held in effect that because of these subsequent conveyances the plaintiff lost such right which it previously had, and because plaintiff's counsel who tried this case did not anticipate that such construction would be placed on the statute by the courts, a judgment has been affirmed which it seems to this writer is clearly unjust. It takes from the plaintiff 71 acres of its land and vests the title in appellees, who so far as the record shows have not a shadow of title or claim to it. It is perfectly apparent that had the other line of defendants adopted the same method of pleading plaintiff would have lost every acre of its land in the same way, and purely upon a technical construction of the statute. It occurs to this writer that even if the construction adopted by the majority be the correct rule, still the case should not be affirmed but should be remanded in order that it may be more fully developed. To affirm the judgment is to impose a severe penalty indeed for counsel not anticipating what the courts would hold on a matter of first impression.
But, regardless of the right or wrong of the instant case, it seems to this writer that the construction placed upon the common source statute will greatly limit its obvious benefits. The common source statute was intended as a rule of convenience and economy, enabling a plaintiff to make a prima facie showing of title to the land sued for by showing that the defendant, or defendants, are asserting some character of claim or title under a common source without the necessity of proving up title by the expensive processes of filing certified copies. It is obvious that the longer the lapse of time after patenting of a tract of land, with the multiplicity of transfers in the chain of title, the greater the expense in proving up the title. This should strongly urge upon the courts the practical benefits of liberally construing the statute so as to effectuate its purpose. Fortunately, that can be done without any serious danger of making it an instrument of injustice. For after all the proof of title by common source merely establishes a prima facie case for the plaintiff, shifting to the defendant the duty of going forward with his proof. It then devolves upon the defendant, in order to defeat the prima facie case, to show title in himself, or to show a superior outstanding title. Keys v. Mason, 44 Tex. 140; Simmons Hardware Co. v. Davis, 87 Tex. 146,27 S.W. 62, 63; Davis v. Lund, Tex.Com.App., 41 S.W.2d 57; Luckel v. Sessums, Tex. Civ. App. 71 S.W.2d 579; Word v. Houston Oil Co., Tex. Civ. App. 144 S.W. 334, 335, writ refused.
To illustrate what to this writer's way of thinking is the harmful effect of the rule announced by the majority, let us suppose that the owner of a tract of land desires to clear his title against the apparent claims of a number of persons holding quitclaim deeds, or other evidences of claim under a common source, to a number of segregated portions of the land involved. In such case, under the majority holding, it will be necessary for the plaintiff to sue each such claimant for the particular portion of the tract which he is known to claim if plaintiff is to rely upon common source to establish his title. And having gone to the added burden and expense of a multiplicity of suits, his title is still not clear when he is through, for he has only barred the claim of each such defendant to the portion for which he was sued. He has not been able to require a disclosure and judicial determination of any claim which the defendant may have to any other portion of the tract. The result will be then that in many such cases the prudent lawyer will be compelled to advise his client to clear up his title by the expensive process of establishing title from the sovereign. In the present case it would seem probable, when the value of the land involved as reflected by the record is taken into consideration, that such a procedure would likely cost as much as the land involved is worth. *Page 167
Finally, the majority rule involves another matter that should be given consideration. For if, as the writer believes, it will greatly add to the expense of land litigation, it will obviously give to many an unfounded and unjust claim, "a nuisance value" which may encourage such claims being asserted merely in the hope of a settlement.
The above observations are submitted in the hope of calling the attention of the bench and bar to the importance of the matter involved. To the writer's way of thinking, we have here come to the fork in the road and prudence should urge upon us very careful consideration of the possible future effects of the rule which may be established in this litigation.
It follows from what is said above that I think the judgment of the trial court should be reversed. It is my further view that since under the rulings of the trial court appellees were not required to offer their proof the case should not be rendered but should be remanded to the trial court in order that appellees may exhibit their title, if any they have.