Robinson v. Bazoon

GAINES, Associate Justice. This was an action of trespass to try-title, brought by appellant against John Mclver and several other defendants, including \V. A. Bazoon and J. T. Whitten, to recover a league of land granted to James W. Robinson by the State of Ooahuila and Texas on the 6th day of October, 1835. Defendants W. A. Bazoon and J. T. Whitten claimed each 160 acres of the survey under the statute of limitations of ten years. The case was tried by the court and the trial resulted in a judgment against all the defendants except the two last named, and, judgment for’them for the two tracts claimed by them respectively. From this judgment the plaintiff appeals and assigns as error so much thereof as was rendered in favor of Bazoon and Whitten. Bazoon testified, in substance, that his father moved on the land claimed by him in 1871, and remained there until he died, about 1880: His father gave him the improvements in 1876, and he had resided upon, used, and cultivated it ever since. He had paid taxes on it for eight or nine years before the trial. Whitten testified that he had moved on the land in 1876 and had lived upon it, using and cultivating it, ever since. The first time he claimed the land was when he paid taxes on it. He commenced paying taxes after he had it surveyed in 1883. In December, 1883, W. A. Bazoon, W. P. Bazoon,-and T. E. Bazoon executed to John Mclver and John R. Peel an instrument in writing by which they acknowledged that they were in possession of the league- of land under Mclver and Peel and promised to continue to hold possession under them and to act as their agents in leasing the land to others. On the 7th of December, 1884, Whitten executed a promissory note to Mclver for the sum of $25, in which it was recited that it was given in consideration of the use and occupation of the premises upon which he resided, the same being situated upon the J. W. Robinson league. He testified that Mclver came to his house and represented to him that he had an interest in the land and that he did not want “ to take any of our places, but to hold the balance. He promised he would be babk in two or three weeks, but never came back.” He further testified that a short while afterwards he repudiated the transaction and posted up notices, etc. Bazoon testified that he signed the contract with Mclver and Peel, but [526] “did not know whether it was on the Robinson league or not; did not know who it belonged to.” Delivered February 3, 1891. We are of opinion that but for the acknowledgment of title in Mclver and Peel by Bazoou, as shown by his contract with them, there was such evidence of adverse possession as would have sustained the judgment as to him. But adverse possession, to be available under the statute, must be continuously hostile and under the same claim of right. The possession must continue in the defendant himself for the full period, or in himself and others with whom he can assert some privity and through whom he claims. When Bazoon acknowledged himself the tenant of Mclver and Peel his possession in his own right ceased, not only against them but against the true owner, and the running of the statute in his favor can only be computed from the time that he disavowed that tenancy and reasserted his own claim. After the execution of his contract with'Peel and Mclver his occupancy was their possession until he repudiated it, and could not be tacked either to his previous or his subsequent possession in his own right. It is not like the case of Portis v. Hill, 14 Texas, 69, in which it was held that the mere acknowledgment of title in a third party did not preelude the defendants from claiming that their possession was adverse to the plaintiff. If his father’s possession had been adverse (which, to say the least, seems to be doubtful), and his title under the statute had become perfect before he made the contract with Mclver and Peel, that contract would not have affected his title against the plaintiffs in this suit. Whitten’s defense is weaker than that of his coappellee. He did not go into possession until 1876, and it seems did not claim the land as his own until about 1883. W„e think the court erred in giving judgment for either of them. The judgment as to them will therefore be reversed and the cause remanded for a new trial. Reversed and remanded.