On Motion for Rehearing. There are practically but two questions presented in appellants' motion for rehearing — the refusal of the trial court to submit the issue of actual notice, and the exclusion of testimony as to the character of George Liddell's holding of the premises from 1905 to 1910, while the title was in Gunn.
The last question was decided against appellants, upon the ground that it was conclusively shown by the record that George Liddell had transferred all the title he had or claimed to Gunn in 1905. It is now suggested that there was some testimony tending to support a contrary conclusion. As evidence of an actual transfer, there was the general warranty deed from George to Gunn, dated, delivered, and recorded. Gunn testified that he bought the land and thereafter rented it to George and collected the rents in the usual manner. This testimony was uncontradicted by George or any other witness. The only testimony tending to support the suggestion that the transfer was not an actual conveyance was the statement of George that he paid all the taxes during that five years, except for one year, and the proffered testimony of plaintiffs that George told them that he was on the premises managing it for his grandmother as he had done theretofore. The bare statement of George that he had paid the taxes was not sufficient to overcome the presumption of an actual conveyance of the property as disclosed by the deed offered in evidence. The testimony of the appellants of what George had told them concerning the character of his possession, which was excluded, would not have been admissible for the purpose of showing that George had not in fact conveyed the land to Gunn. Such declarations would have been hearsay. If it is correct, then, to say that George was only a tenant during the term of years when Gunn held the title, clearly his unauthorized statement regarding his tenure would not affect the character of Gunn's claim of title or prevent its being adverse to the appellants. For that reason the exclusion of those declarations did the appellants no injury.
We pass, then, to a further consideration of the assignment complaining of the refusal of the court to submit the issue of actual notice. It may be conceded, for the sake of argument, that the possession of George as a cotenant prior to his conveyance to Gunn in 1905 was not adverse to the appellants. Excluding that period, more than 10 years elapsed from the beginning of Gunn's tenure until the institution of this suit. If the claim of title by Gunn was a controverted issue, and if the evidence of notice of his adverse holding was such that a finding either way would not be disturbed on appeal, there might be some reason to complain of the refusal of the court to submit in proper form the question of notice. However, if the record in this case conclusively shows conditions indicating hostile claims of which the appellants were compelled to take notice, it is not essential to the defense of limitation that direct information in some other form should have been communicated to them. The conveyance of the entire property by one cotenant to a stranger, as from George to Gunn, constitutes an ouster of the other cotenants, and information of that fact need not be direct. Madison v. Matthews (Tex. Civ. App.) 66 S.W. 803; Stubblefield v. Hansom (Tex. Civ. App.)94 S.W. 411; Peeler v. Guilkey, 27 Tex. 357; Wood on Limitation, § 266. The recording of such a deed is notice to cotenants. Puckett v. McDaniel, 8 Tex. Civ. App. 630, 28 S.W. 362; Church v. Waggoner,78 Tex. 203, 14 S.W. 581; Joyce v. Dyer, 189 Mass. 64, 75 N.E. 81, 109 Am. St. Rep. 603, and cases cited in the notes.
The case of Lynch v. Lynch (Tex. Civ. App.) 130 S, W. 461, is referred to as holding contrary to the views here expressed regarding the legal effect of the record of such deeds as notice to cotenants out of *Page 757 possession. The facts of that case are radically different from those involved in this. There the husband and his second wife were occupying the premises. During that time the husband conveyed to the second wife by a deed describing the entire property. Suppose that notice of that fact had been actually communicated to the children of the first marriage. They could not have then sued for and recovered their mother's community interest in the land, because that transaction did not destroy the possessory rights of their father. The conveyance of his undivided community interest in the property was not an abandonment of his right to the continued use and occupancy of the homestead. That ground alone was ample justification for affirming the judgment. For it is well-settled that parties having the sole right of possession, as did the second wife and her husband in that instance, who was then residing with her husband, will not be permitted to use that possession as the basis of an adverse claim.
A cotenant out of possession is charged with notice of the manner in which the cotenant in possession manages the property and applies the rents, especially if the cotenant out of possession resides in the vicinity of the land. The undisputed testimony in this case shows that during the 5 years that Gunn held the title the rents were paid to Gunn by George Liddell as a tenant. Those facts were too conspicuous to be disregarded in determining the issue of notice. The appellants could not, in the face of the exclusive appropriation of the rents by the cotenants in possession for so long a period of time, close their eyes and wait until some direct information had been communicated to them of a hostile claim.
The motion for a rehearing is overruled.