Benskin v. Barksdale

• Decision Date: 10 January 1923
• Docket Number: (No. 349-3086.)
• Citation: 246 S.W. 360
• Parties: BENSKIN et al. v. BARKSDALE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

246 S.W. 360

BENSKIN et al. v. BARKSDALE.^*

(No. 349-3086.)

Commission of Appeals of Texas, Section B.

January 10, 1923.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Trespass to try title by K. H. Barksdale against J. M. Benskin and others. Judgment for defendants was by the Court of Civil Appeals reversed and rendered, 194 S. W. 402, and defendants bring error. Reversed and remanded.

Clarence Martin, of San Antonio, Jno. W. Hill, of Breckenridge, and Chas. L. Black, of Austin, for plaintiffs in error.

J. E. Friestman, of Rock Springs, and Lipscomb & Lipscomb and W. A. Morris, all of San Antonio, for defendant in error.

HAMILTON, J.

On June 20, 1903, J. J. Ellis for a good and sufficient consideration conveyed, by general warranty deed, to Miss K. H. Barksdale, among other tracts of land, the S. W. 7/8 of survey No. 40 and the E. 1/2 of survey No. 44 in Edwards county, in consideration of $4,500 cash. This deed was filed for record in September, 1903. Miss Barksdale at once leased the land to Ellis, grantor, for and in consideration of his paying the taxes and interest, as these became due, to the state. No time for the duration of the lease was agreed upon. Soon after making the lease, Miss Barksdale became a nonresident of Texas. Ellis continued to use the land and to comply with the leasehold agreement, directly and through his subtenants, until December 3, 1906. On that date, Ellis executed a deed conveying to J. M. Benskin, along with several other tracts, the above-described land. That deed was recorded February 7, 1907, and was as follows:

"The State of Texas, County of Edwards:

"Know all men by these presents: That I, J. J. Ellis, of the county of Edwards and state of Texas, for and in consideration of the sum of twenty-five ($2,500.00) hundred cash to me in hand paid by J. M. Benskin of the county of Edwards and state of Texas, the receipt of which is hereby acknowledged, together with the execution and delivery to me by the said J. M. Benskin of his certain promissory note of even date with his instrument for the sum of fifteen hundred ($1,500.00) dollars drawing eight per cent. (8%) interest, payable to the order of J. J. Ellis at Rock Springs, Texas, on the 1st day of May, 1907, which said note is secured by a vendor's lien on the premises hereafter conveyed and described, and which said note is payable only upon the condition that the said J. J. Ellis makes to the said J. M. Benskin a warranty deed to section 53, below, with clear title thereto, do by these presents, bargain, sell, release, and forever quitclaim, unto the said J. M. Benskin his heirs and assigns all of my right, title and interest in and to that certain tracts and parcels of land lying and being situated in Edwards county, Texas, described as follows, to wit:

                Abst.    Sur.  Cert.  Blk.    Original Grantee      Acres
                          39   1740    10   G., H. & S. A. Ry. Co.   581
                          53     68     2   Brooks   &   Burleson.   640
                          45   1743    10   G., H. & S. A. Ry. Co.   640
                          43   1742    10   G., H. & S. A. Ry. Co.   640
                          61   1801    10   G., H. & S. A. Ry. Co.   640
                          38   1739    10   G., H. & S. A. Ry. Co.   474¼
                S. W. 7/8   40   1740    10   G., H. & S. A. Ry. Co.   527 5/8
                          42   1741    10   G., H. & S. A. Ry. Co.   640
                          44   1742    10   G., H. & S. A. Ry. Co.   640
                

"To have and to hold the said premises together with all and singular the rights, privileges and appurtenances thereto in any manner belonging, unto the said J. M. Benskin, his heirs and assigns, forever, so that neither I, the said J. J. Ellis nor my heirs, nor any person or persons claiming under me, shall, at any time hereafter, have, claim or demand any right or title to the aforesaid premises or appurtenances, or any part thereof. But it is expressly agreed, understood and stipulated that a vendor's lien is retained on the aforesaid described premises until the aforementioned and described note and all interest thereon has been fully paid when this deed shall become absolute as a quitclaim deed.

"Witness my hand at Rock Springs, Texas, this the 3d day of December, 1906.

                                               "J. J. Ellis."
                

Benskin had been in possession of the land about a year before he received the deed above set out. He subleased it from J. J. Ellis, and his possession was by virtue of that lease. Ellis died in the latter part of 1907. On June 25, 1907, Benskin sold a part of the land to A. Benton, giving bond for title. On September 8, 1915, Benton sold part of that part to W. C. Strackbein, giving bond for title. Neither Benton nor Strackbein ever had a deed to any of the land, and neither ever paid anything on it except taxes and interest as Ellis had done. On August 15, 1913, Benskin sold and conveyed by deed, together with other land, a part of the land, in controversy, amounting altogether to 2,683 acres, to E. F. Boyce. He paid $1,000 in cash "sixty-six hundred and something" in notes for the whole 2,683 acres. He never paid anything on the notes, but paid interest and taxes to the state.

On November 19, 1915, Miss Barksdale filed this suit in trespass to try title against J. M. Benskin, E. F. Boyce, A. Benton, and W. C. Strackbein for recovery of the land conveyed to her by J. J. Ellis above described. Defendants answered by plea of "not guilty," by pleas of the statutes of limitation of three and five years, plea of valuable improvement made in good faith, and specially pleaded title in J. M. Benskin by virtue of the deed of J. J. Ellis above set out.

Upon the conclusion of the testimony, the trial court instructed the jury to return a verdict for defendants. Upon this verdict the court rendered judgment in their behalf. Plaintiff appealed, and the Court of Civil Appeals reversed the judgment of the trial court, and rendered judgment for appellant. 194 S. W. 402. Appellees then sought and obtained a writ of error.

In the opinion of the Court of Civil Appeals, it is stated that—

"Benskin complied with all the requirements prescribed by article 56744, as essential to acquire land by the five-year limitation."

To that proposition, as a conclusion of law, from the findings of fact stated by the Court of Civil Appeals, amply supported as they are by the evidence, we cannot agree.

It is a well-settled general rule of law that a tenant cannot dispute the title of his landlord by setting up a title either in himself or in a third person during the existence of his lease or tenancy. The principle of estoppel applies and operates with full force to prevent the tenant from violating the contract by which he continues to claim and hold the possession. But the tenant's estoppel must be regarded in two aspects, one in its connection with the question of title to the premises in a real action, such as this one, the other as affecting the tenant's liability in an action for the recovery of rent upon an actual or implied contract. In the last case, in an action for the recovery of rent, the rule that the tenant will not, as a matter of law, be permitted to deny his landlord's title until possession of the premises is surrendered is applicable. This is true because a party cannot, of his own will, put an end to a contract under which he continues to receive that for which he promised to make compensation. In the second case, if the tenant of a lessor give him express notice that he will no longer hold under him, he is regarded as thereby committing an actual disseizin, and the statutes of limitation upon an adverse possession begins to run from the time of such notice. Unless, however, the tenant, by a formal act, disclaim and renounce the title of the landlord, his possession can never become adverse. Buswell's Limitation and Adverse Possession, § 304. He cannot set up an adverse claim which may operate to bar the landlord's title by adverse possession under the statute of limitations, until he shall have expressly disaffirmed such title of his landlord and given him full notice that he claims to hold adversely thereto. A mere holding over after the expiration of the term is not evidence of an adverse possession. The tenant in such case becomes either a trespasser or a tenant at the option of the landlord. One succeeding to the possession of a tenant holding over, whether by purchase or inheritance, is equally disqualified with the original tenant to set up his possession as adverse to the landlord's right. Word v. Drouthett, 44 Tex. 365; Mattfield v. Huntington, 17 Tex. Civ. App. 716, 43 S. W. 53 (writ of error denied); Buford v. Wasson, 49 Tex. Civ. App. 454, 109 S. W. 275 (writ of error denied); Flanagan v. Pierson, 61 Tex. 302; Oury v. Saunders, 77 Tex. 278, 13 S. W. 1030; Carter v. La Grange, 60 Tex. 636; Cobb v. Robertson, 99 Tex. 138, 86 S. W. 746, 87 S. W. 1148, 122 Am. St. Rep. 609. Ellis was the tenant of Barksdale until he leased to Benskin; Benskin became then her tenant. His possession was her possession until his adverse possession is made out, not by inference, but by clear and positive proof of a claim on his part of adverse possession, and an acquiescence therein on the part of Miss Barksdale after knowing the same. Buswell's Limitations and Adverse Possession, § 309; Bedford v. Rayner Cattle Co., 13 Tex. Civ. App. 618, 35 S. W. 931. No such proof is shown in the record of this case. Benskin did not testify that he ever claimed the land adversely to Miss Barksdale. He merely testified that he had had peaceable and undisturbed possession of the land. No testimony that Barksdale ever had notice of any adverse claim to the land appears in the statement of facts, except the testimony of Miss Barksdale on that matter, as follows:

"Mr. Ellis, a short time before he died, told me that he had sold the land to Mr. Benskin, and gave me a note. The note was for $1,500. The note was given in part payment for this land. The same land sued for here under this...