Garcia v. Illg , 14 Tex. Civ. App. 482 ( 1896 )

As stated in our former opinion, Mrs. Garcia was not in any manner a party to the partition of the land between Guiterez and Lehman. The latter had a partition of the land with Guiterez, and had one-half of it set apart to him by virtue of the deed that he had received from Mrs. Garcia and Josefina Jewett. We hold that the instrument executed by Mrs. Garcia and her husband was intended to be a deed, and not a power of attorney. Any expression in it authorizing Lehman to make a partition of the land was mere surplusage. He had that right by virtue of the deed. Lehman treated it as a deed to him, and had the portion of the land belonging to Mrs. Garcia and Josefina Jewett set apart to him.

There is no testimony that shows adverse possession by Guiterez as to appellants. Guiterez was a tenant in common of the land with the mother of appellants until her death, and then with her children, and there is no testimony to show that there had ever been a repudiation of the rights of his cotenants by Guiterez. The only testimony relied on by appellee to show adverse possession upon the part of Guiterez was the testimony of his son Santiago, who stated that his father had lived on the land during his life-time, had put shanties on it, had paid taxes on it, and had told him that he claimed all of it. This testimony did not show adverse possession as to the cotenants. It is presumed that the possession of one cotenant is in subordination to, and by authority of, the common title. To establish possession on his part adverse to that of his cotenants, the evidence must establish clearly and unequivocally a repudiation of the rights of his cotenants. There must be more than possession and payment of taxes, or the placing of improvements on the land. These are circumstances which, with others, might go to show adverse possession, but taken alone they are not sufficient. Alexander v. Kennedy, 19 Tex. 488; Philipson v. Flynn, 83 Tex. 580. In the last case cited, it is said: "The acts relied upon by the tenant in common in showing an ouster of his cotenants and the assertion of an adverse claim should be more certain and unequivocal in character than would be necessary in ordinary cases where there is no privity of estate between the parties claiming the property; and in order to affect the cotenants with this adverse holding, notice of such fact must be brought to them either by information to this effect given by the tenant in common asserting the adverse right, or by such acts of unequivocal notoriety in the assertion of such adverse and hostile claim that they will be presumed to have notice of such adverse right." The claim of Guiterez expressed to his son at some indefinite period did not give notice of adverse possession. Says the Supreme Court in Moody v. Butler, 63 Tex. 210: "No secret intention on their part, nor intention expressed to third parties, but not brought to the knowledge, or presumed knowledge of Moody's heirs, could give the appellees the benefit of an adverse possession, or one hostile to their intention." The facts here uncontradicted did not show adverse possession; and whatever probative force and effect they may have had was effectually removed by the admission by Guiterez, in the deed of partition, that one-half of the property belonged to the heirs of his sister. "It has been held that acts and declarations made by claimants of land after a possession for sufficient time to bar the owner are admissible to show that such possession was not adverse." Bracken v. Jones, 63 Tex. 184, citing Church v. Burghandt, 8 Pick., 327. As bearing upon the subject of limitations, as applied to one cotenant against another, we refer also to Teal v. Terrell, 58 Tex. 257, Gilkey v. Peeler,22 Tex. 663, and Flanagan v. Boggess, 46 Tex. 330.

The evidence failing to show that Guiterez held the land adversely to the appellants, it will not be necessary to go into any discussion as to the privity existing between his title and that of appellee. In his deed of partition he simply recognized Lehman as standing in the place of Mrs. Garcia and Josefina Jewett.

The motion for rehearing is without merit and is overruled.

Overruled.