Morgan v. Wertz

HIGGINS, Justice. This is a suit by appellant to recover 105 acrés of land peaceable possession of which he had held for thirteen years preceding the institution of this suit, continuously using and enjoying same. He claimed title under the ten years’ statute of limitations (Vernon’s Ann.Civ.St. art. 5510). Upon an instructed verdict judgment was rendered for defendants. The plaintiff testified: “Q. Did you know who owned it then? A. No, Mr. Smythe fixed up the fence and Mr. Smythe told me to make use of it until I could find out who owned it. I never could find out who owned it. “Q. Now you say you didn’t know who owned it, or whether it was owned privately? A. No, or I would have made some sort of agreement with them. “Q. And you had that in mind all along? A. Yes, but I never could find that anybody owned it. * * * “Q. And you had that in mind up until this suit was filed, that you were willing to buy it if you could find who the owner was? A. Yes sir. “Q. And you looked for the owner of the land with a view to buying it? A. I asked several people and nobody didn’t know nothing about it. “Q. But you were willing to pay for it if you could locate the owner? A. Yes sir. * * * “Q. But you did want to buy it until the time the^ suit was filed, didn’t you? A. I might have made some other agreement. I might have leased it.” This shows the plaintiff’s possession was in recognition of and in subordination to the true owner. His possession therefore was not hostile and not adverse. Nowhere in his testimony does plaintiff modify or contradict his admissions in the testimony quoted. The verdict was properly instructed. Mhoon v. Cain, 77 Tex. 316, 14 S.W. 24; Thompson v. Moor (Tex.Com.App.) 14 S.W. (2d) 803. Affirmed.