McCaslin v. Veasy , 199 S.W. 1173 ( 1917 )

Assuming that the judgment of the court was predicated on a finding that the statute of limitations of ten years had operated to bar a right he had had to recover the 15 or 20 acres of appellees, appellant insists that the finding was without support in the testimony. As the findings of the court were not reduced to writing, we do not know from the record whether the court made such a finding, and based his judgment on it, or not. But if he did, and if it should be conceded that the finding was not authorized by testimony, it would not therefore appear that the judgment was erroneous. That the court may have based his judgment on an untenable ground would not be a reason for setting it aside if it is sustainable on a tenable ground. Insurance Co. v. McCurdy, 183 S.W. 796; O'Fiel v. King, 23 S.W. 696; Walker v. Cole, 27 S.W. 882; League v. Rice Institute, 152 S.W. 1182; Railway Co. v. Purcell, 91 Tex. 585, 44 S.W. 1058; Estey v. Fisher, 44 S.W. 555; A very v. Popper, 92 Tex. 337, 49 S.W. 219,50 S.W. 122, 71 Am. St. Rep. 849; Warren v. Kohr, 20 Tex. Civ. App. 331,64 S.W. 62. And clearly it is, for in no view of the case as made by the record was the court authorized to render judgment in appellant's favor for the land in dispute. It did not appear that appellant ever had the title to the land. It was not shown that he and appellees claimed title from a common source; and the only evidence before the court of title in him was that furnished by a deed dated November 4, 1903, which passed to him the undivided interest one Miller claimed to own in the 307.6 acres. Greenlee v. Taylor, 79 Tex. 149, 14 S.W. 1056; Harris v. Kiber,178 S.W. 673; Griffin v. Hay 135 S.W. 248. In the Taylor Case the court said:

"The suit is trespass to try title, with plea of not guilty, and before boundary questions can be important plaintiff must show title, otherwise defendants will recover."

The judgment is affirmed.