Brown v. Bickford

• Decision Date: 14 February 1951
• Docket Number: No. 12149,12149
• Citation: 237 S.W.2d 763
• Parties: BROWN v. BICKFORD.
• Court: Texas Court of Appeals

Page 763

237 S.W.2d 763

BROWN v. BICKFORD.

No. 12149.

Court of Civil Appeals of Texas, San Antonio.

Feb. 14, 1951.

Rehearing Denied March 21, 1951.

Huson & Bissett, Refugio, Benckenstein, Wells & Duncan, Peter B. Wells, Beaumont, for appellant.

K. D. Hall, Refugio, Archer & Archer, and L. Hamilton Lowe, Austin, for appellee.

NORVELL, Justice.

This lawsuit involves 88 acres of land situated in Refugio County on the Guadalupe River near Hines Bay (a part of San Antonio Bay) close to the Gulf Coast. The general locality is referred to as Duncan's Point, a promontory extending into they bay and named after a family that owned the property for a number of years. For the most part it consists of a wilderness of brush land, not well suited to cultivation.

The appellee, Will Bickford, was admittedly a tenant of the Duncan family at one time. His claim to the small cultivated tract involved is based upon the ten-year statute of limitations, Article 5510, Vernon's Civil Stats. A jury sustained his claim of adverse possession and the controlling question in the case is whether or not there is any evidence to support the finding that Bickford's claim was one of such unequivocal notoriety as to charge the record title holder with notice thereof, in view of the fact that Bickford's entry into possession was in recognition of and under the title of the record owner.

In 1915, Bickford came to Duncan's Point as an employee of the Duncan Family and has resided there ever since. He farmed the tract of land now in dispute as a tenant of the Duncans, but it seems that about 1921 he ceased to pay rent thereon. The trial court in his charge to the jury treated Bickford as a tenant of the Duncans, holding under them and in recognition of their title. ¹

In 1926, a mortgage against the Duncan property, which included the tract in litigation, was foreclosed and the property was purchased by the Victoria National Bank of Victoria, Texas. At that time, Mrs. M. E. Duncan, Miss Mary A. Duncan and Bickford resided in a single household on the premises and continued to reside there until 1942 when Mrs. Duncan died. Bickford at the time the suit was filed still lived in the Duncan house which adjoins the tract in dispute.

Shortly prior to 1940, Mrs. M. E. Duncan and Mary A. Duncan made application to the federal court for a discharge in bankruptcy and for an order setting aside to them a homestead tract. Negotiations were had with the Victoria Bank, which resulted in the bank's releasing to them all claims (except as to certain mineral interests) in and to a tract of 201 acres. Mrs. M. E. Duncan and Mary A. Duncan in turn released all claims to lands covered by the 1926 foreclosure sale other than the 201 acre homestead tract. This release covered the 88 acre tract now in dispute. In 1946, the Victoria Bank conveyed all the Duncan properties acquired by it to the appellant, H. L. Brown. The tract now claimed by Bickford was included in this conveyance.

It seems well settled that as Bickford was a permissive tenant of the Duncans prior to the 1926 foreclosure sale, he became the permissive tenant of the Victoria Bank after said sale. In Davis v. Morley, Tex.Civ.App., 169 S.W.2d 561, 567, it was said: 'The record does not show any act performed or word spoken by appellant until this suit was filed which would constitute notice to appellee that her continued possession of the land after the judgment was rendered by the District Court of Yoakum County was adverse or in hostility to the rights of appellee. The law is well settled that the continued possession of land after a judgment of a court of competent jurisdiction has been rendered in which the possor is divested of title and the title is vested in another is considered in subordination to the title so adjudicated. Appellant could not assert adverse possession after the decree against her without bringing express notice to appellee that her claim was adverse and hostile to that of the latter. Without such notice, her possession during the time intervening between the decree and the institution of the instant suit gave her no better right than she possessed before the decree was entered. Such notice not having been given, her possession was not adverse but was subordinate to the title of appellee. Root v. Woolworth, 150 U.S. 401, 14 S.Ct. 136, 37 L.Ed. 1123; Green v. Strubbe, 234 Ky. 380, 28 S.W.2d 469; Du Pont v. Charleston Bridge Co., 65 S.C. 524, 44 S.E. 86; Voight v. Mackle, 71 Tex. 78, 8 S.W. 623.'

When the bank acquired title to the land in 1926, it was justified in assuming that Bickford, the permissive tenant of the Duncans, remained in possession of the property in recognition of the title asserted by it as the successor in title to Bickford's former landlords. Before Bickford's possession could become adverse to the bank, notice of his hostile claim would have to be brought home to the bank. West Lumber Co. v. Sanders, Tex.Civ.App., 224 S.W. 828; Warren v. Haverkorn, Tex.Civ.App., 191 S.W.2d 793. The legal situation of one presently claiming adversely who had originally entered as a permissive tenant, is treated in the briefs (and we think rightly so) as being similar to that of one who originally entered as a tenant in common and thereafter seeks to establish an adverse claim against his cotenants. In neither case will ordinary possession and use suffice, for such possession will be construed as that of a permissive tenant holding in recognition of the title of a landlord or, in case of a cotenant, in recognition of the title held by him in common with others. Notice of a change in the nature of the claim of possession must be given to those against whom it is asserted.

In the present case, there is no evidence that Bickford gave actual notice to the Victoria Bank that the nature of his claim or possession after 1926 differed in any way from that asserted by him as a permissive tenant of the Duncans. Appellee depended upon 'constructive notice' and in accordance with such theory, in addition to the usual definitions given in connection with the limitation issue (i. e., peaceable possession, adverse possession, visible appropriation and claim of right), the court gave the following explanatory instruction, viz.:

'You are hereby instructed in connection with the Special Issue No. 1 (relating to the ten-year statute), that the possession of the defendant and cross-plaintiff Bickford could not be adverse until June 1, 1926 (the date of the foreclosure sale), nor thereafter until such notice of such adverse possession was given to the record owner of the land.

'By 'notice' is not necessarily meant actual notice of such adverse possession and claim, but such notice may be presumed by the jury to have been brought home to the record owner of the title if the jury find from a preponderance of the evidence that the adverse occupancy, if any, and claim of title, if any, on the part of the said Will Bickford was open, notorious, exclusive and unequivocal for such a length of time as to be inconsistent with the existence of title in such record owner, and of such notoriety as to constitute notice to the record owner and those under whom the record owner claims title of the adverse possession, if any, and claim of title, if any, of the said Will Bickford. The inference of notice is one of fact to be determined by the jury.'

The above instruction seems to be supported by a number of reported cases. The wording is practically identical with that employed in Vaughan v. Kiesling, Tex.Civ.App., 150 S.W.2d 435. See also, Moore v. Knight, 127 Tex. 610, 94 S.W.2d 1137; Leonard v. Cleburne Roller Mills Co., Tex.Com.App., 239 S.W. 605; Vidaurri v. Bruni, Tex.Civ.App., 154 S.W.2d 498, reversed in part, Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81.

As above pointed out, possession which in ordinary cases would satisfy the statute is not sufficient in cases where the entry into possession was made as a tenant holding under the owner or as a tenant in common with others. In these cases where no actual notice of repudiation is shown the element of 'unequivocal notoriety' sufficient to charge the owner with notic of repudiation must be present. In order to ascertain the sufficiency of the evidence upon the point it is necessary to examine certain reported cases and obtain the controlling principles applicable to the facts presented by the present record.

Appellee has cited a number of cases which he contends support his position that the evidence is sufficient to sustain his claim under the ten-year statute.

In Vaughan v. Kiesling, Tex.Civ.App., 150 S.W.2d 435, it appears that appellant, Vaughan, and appellees, Kiesling and Dixon, jointly purchased certain property in 1910. In 1911, through connivance with Kiesling and Dixon (according to a jury's finding), T. J. Collins the holder of a lien against the property foreclosed the same and the property was purchased by Kiesling and Dixon at an execution sale held in February of 1912. In 1940 Vaughan brought suit to establish his one-third interest in the property. It appears that Vaughan was absent from the State from about 1911 to 1922. However, upon his return, he made no investigation...