Hintze v. Krabbenschmidt

• Decision Date: 18 December 1897
• Citation: 44 S.W. 38
• Parties: HINTZE et al. v. KRABBENSCHMIDT et al.
• Court: Texas Court of Appeals

44 S.W. 38

HINTZE et al. v. KRABBENSCHMIDT et al.

Court of Civil Appeals of Texas.

December 18, 1897.

Appeal from district court, Dallas county; W. J. J. Smith, Judge.

Trespass to try title by Ed Krabbenschmidt and others against Ernest Hintze and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

J. W. Moore and A. W. May, for appellants. Geo. A. Titterington, for appellees.

FINLEY, C. J.

This suit was filed in trespass to try title on August 4, 1896, by plaintiffs, as the sole surviving heirs of Henry B. Cook, a German. Plaintiffs' contention was that the real name of Henry B. Cook was Henry B. Krabbenschmidt; that plaintiff Marie E. Krabbenschmidt was his mother, and the other plaintiffs were sister and brothers; that Cook left Germany in 1865, changed his name from Krabbenschmidt to Cook while he lived in Cincinnati, Ohio, came to Texas later, bought the land in controversy, and, taking the deed in the name of H. B. Cook, in 1874, delivered possession of the land to defendants in 1878 or 1879, who agreed, for the use of said land, to improve the land, pay the taxes, and give it up when he called for it; that he went to Arizona in 1879, and there died, unmarried and without issue. Defendants pleaded not guilty, limitations of five and ten years, and improvements in good faith. On February 5, 1897, the cause was tried before a jury, and resulted in a general verdict and judgment for plaintiffs. Defendants have appealed to this court.

Opinion.

The evidence justified the jury in coming to the following conclusions of fact, and, in support of the verdict, we give them as the conclusions of this court: (1) Plaintiffs were shown to be the only living heirs of H. B. Cook. H. B. Cook was not the original true name. The original name was Henry Krabbenschmidt, and the change was made after the party came from Germany to the United States, because of the difficulty in pronouncing his name in English H. B. Cook, alias Henry Krabbenschmidt, was shown to be dead. (2) A deed to the land in controversy from one Obenchain to H. B. Cook was read in evidence, and possession by said Cook under this deed, prior to the possession of defendants, was proven. (3) It was proven that defendants went into possession of the land as tenants at will of H. B. Cook. It was agreed that they might occupy, cultivate the land, and own the crops raised upon it in consideration of their care of the land, payment of taxes, and the improvements they might put upon it. The improvements placed upon the land by defendants were placed thereon under this contract. (4) It was not shown that defendants had held peaceable adverse possession of the land for the period of 10 years next preceding the institution of this suit.

Upon this state of facts we pronounce these general legal conclusions:

1. A tenant will not be permitted to hold possession derived from the landlord, and contest his title to the land. Casey v. Hanrick, 69 Tex. 48, 6 S. W. 405; Word v. Drouthett, 44 Tex. 371; Tyler v. Davis, 61 Tex. 674.

2. It being shown that defendants went into possession as tenants of H. B. Cook, and retained the possession thus acquired, and the death of Cook and the heirship of plaintiffs being established, this was sufficient proof of title to authorize a recovery by plaintiffs.

3. Defendants' possession not being adverse, their defense of limitations failed.

4. The defendants were not entitled to recover for improvements placed upon the land by them, because they were placed there under the contract of tenancy, and not in good faith, believing that they had title to the land, or that they would be paid for such improvements otherwise than by the use of the land.

In addition to these general conclusions, we will notice the principal reasons assigned for a reversal of the judgment:

1. It is assigned that the court erred in a special charge given in answer to a question propounded by the jury, as follows: "Gentlemen of the Jury: You ask further instruction in the above cause, as follows: `Judge: Would the fact that of defendants ceasing to pay taxes in the landlord's name, and paying them or rendering them in their own name, be a repudiation of the contract, in the meaning of the law?' You are instructed that the acts stated in your question, if you find they were done from the evidence, are circumstances which may be considered, but do not alone, as a matter of law, constitute such repudiation. Whether there was repudiation is a question of fact for your determination." It is contended that this charge is upon the weight of the evidence. We do not regard the charge as being upon the weight of the evidence. We will add, however, that the proof did not show that defendants first rendered and paid taxes on the land in the name of Cook, and afterwards changed and rendered the land, and paid the taxes in their own names. Defendants' testimony showed that since the year 1882 they had rendered and paid the taxes on the land in their own names continuously, every year, but it is not shown that previous thereto they rendered the land and paid the taxes in the name of the landlord, Cook. It would seem, under this condition of the evidence, that appellees might complain of the instruction, but we can see no harm that could have resulted to appellants from it. The contention is that the defendants repudiated the title of their landlord, and held adverse to such title for a period of 10 years; that this evidence tended to establish that fact; and that the charge of the court restricted the weight of the evidence. When it is shown, as was done in this case, that the defendants went into possesion as tenants, a trust relation is established between them and their landlord, and their possession does not become adverse, without some open, hostile act inconsistent with such relation, indicating clearly and unequivocally an intention to hold adversely. Carter v. Town of La Grange, 60 Tex. 638; Warren v. Frederichs, 83 Tex. 380, 18 S. W. 750; Udell v. Peak, 70 Tex. 551, 7 S. W. 786. In the case of Udell v. Peak, above, it is said: "It is well settled that before a tenant can dispute the title of his landlord, and invoke the statute of limitations in his own favor, as against the title of his landlord, he must repudiate his tenancy, and notify his landlord of the fact, and then the statute will only run from the time of such notice." In the further course of the opinion it is stated that what acts will constitute a repudiation of the tenancy has not been declared by the law, and must depend upon the particular facts of each case. The question of what will be sufficient notice to the landlord is also made to depend upon the facts of the particular case. It is quite certain, however, that some fact must be brought to the attention of the landlord which is sufficient in its nature to suggest, to a reasonably prudent person, that the possession of the tenant has become adverse. The landlord cannot be supposed to be on the lookout for acts of disloyalty on the part of his tenant, and no such act should be regarded as notice to him unless it be...