Kirby Lumber Corporation v. Laird

• Decision Date: 12 April 1956
• Docket Number: No. 15724.,15724.
• Citation: 231 F.2d 812
• Parties: KIRBY LUMBER CORPORATION, Appellant, v. Webb LAIRD, D. D. Griffin and wife, Etta Griffin, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

231 F.2d 812 (1956)

KIRBY LUMBER CORPORATION, Appellant, v. Webb LAIRD, D. D. Griffin and wife, Etta Griffin, Appellees.

No. 15724.

United States Court of Appeals Fifth Circuit.

April 12, 1956.

William G. Fox, Houston, Tex., Fountain, Cox & Gaines, Houston, Tex., for appellant.

John T. Lindsey, Port Arthur, Tex., for appellees.

Before BORAH, TUTTLE and BROWN, Circuit Judges.

BROWN, Circuit Judge.

The question under Texas law is whether an adverse claim asserted on the basis of possession by a Tenant is broken by the Tenant's attornment to the rightful Owner when the Owner knows of the adverse claim, and the adverse-claimant-Landlord knows of the attornment.¹ By evidence vouched for and binding on Laird and that which we must accept under the jury's verdict in his favor, the situation is simple: Kirby owned the land. In 1932 Laird began possession of a tract, initially four, shortly expanded to approximately seventeen acres and fenced in and a home built on it by him. Griffin (Laird's brother-in-law) and his wife resided on the place, occupying this home as his Tenants, the rental being the care of Laird's minor daughter, cultivation of crops and the general care of the place during his extended absences.²

Their possession with the characteristics essential to support an adverse claim under the Texas 10-year Statute of Limitations³ continued without interruption until 1938 when the Tenants executed a formal Tenancy Agreement acknowledging the ownership of Kirby. The Griffins informed Kirby's agent that they were on the place for Laird who was claiming the land, and within a few months told Laird what they had done. Neither Owner nor Landlord took any action. In 1947 the Griffins again executed a formal year-to-year lease, paid the first year's rent, informed Kirby's agents of Laird's claim and again advised Laird of their action which he warned them never to repeat. No action was taken by either until Kirby brought this suit in trespass to try title, Vernon's Texas Civil Statutes, Article 7364 et seq; cf. Texas Rules Civil Procedure 783-809, on January 6, 1954.

In our role as a vicarious Texas Appellate Court, Humble Oil & Refining Co. v. Sun Oil Co., 5 Cir., 190 F.2d 191, unaided by authoritative Texas pronouncements, we must determine as best we can, and then apply, what we think the Texas Courts would do. Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9; Williams v. Green Bay & W. R. Co., 326 U.S. 549, 66 S.Ct. 284, 90 L.Ed. 311; West v. American Telephone & Telegraph Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139; Linkenhoger v. Owens, 5 Cir., 181 F.2d 97, 99; Cf. Cooper v. American Airlines, 2 Cir., 149 F.2d 355, 162 A.L.R. 318.

The nature of the required possession⁴ is not altered when it is supplied through a Tenant. Dawson v. Tumlinson, 150 Tex. 451, 242 S.W.2d 191; 2 Texas Jurisprudence, Adverse Possession, § 41, page 78. The Tenant, therefore, is the means by which the open, hostile, notorious, continuous exclusive possession under a claim of right, Houston Oil Co. of Texas v. Jones, 109 Tex. 89, 198 S.W. 290; Houston Oil Co. of Texas v. Stepney, Tex.Civ.App., 187 S.W. 1078, error refused; 2 Texas Jurisprudence, Adverse Possession, § 64, page 123, is achieved. In the common figure, the Tenant flies the Landlord's flag.

Ordinarily, one in possession under a lease arrangement is not permitted to challenge the title of his Lessor nor may he take action detrimental to the Lessor's title by attornment to third parties, Carter v. Townsend, Tex.Civ.App., 139 S.W.2d 641, error dismissed, judgment correct; Fowler v. Simpson, 79 Tex. 611, 15 S.W. 682; 2 Texas Jurisprudence, Adverse Possession, §§ 75, 76, Landlord and Tenant, §§ 20, 22. But in limitation situations if the Tenant attorns to the Owner who lacks knowledge of the Landlord's claim, we think that the Texas Courts would hold that the possession by the Tenant then becomes that of the Owner. It is broken for the Landlord, Louisiana and Texas Lumber Company v. Alexander, Tex.Civ.App., 154 S. W. 233, 234⁵; Powell Lumber Company v. Nobles, Tex.Civ.App., 44 S.W.2d 774; see Western Union Beef Co. v. Thurman, 5 Cir., 70 F. 960; he has struck the Landlord's ensign and hoisted the colors of the Owner. This has much reasonableness since the Owner is not obliged to evict one who acknowledges his ownership and is apparently claiming for no one else.

If, however, the Owner knows of the Landlord's claim, the Tenant's attornment does not break possession on behalf of the Landlord ignorant of his Tenant's action, Louisiana and Texas Lumber Company v. Alexander, supra; Powell Lumber Company v. Nobles,⁶ supra 44 S.W.2d 777. There, between the two, the Owner knows, the Landlord does not. The Owner is aware of the adverse claim and the Tenant's renunciation of his undivided loyalty to the Landlord. The Landlord, on the other hand, knows nothing save that his agent presumably continues to fly high the Landlord's banner. It is reasonable here that the Owner must take action to oust the adverse claimant or at least run the risk of being able to establish that the opportunity and necessity was open equally to the Landlord.

But coming then to our facts, both Owner and Landlord know. The Owner, as in the second situation, knows of the adverse claim, but there is one marked difference between this and the two others: here, both Owner and Landlord know that the Tenant has renounced his single tenancy. He now asserts for the Landlord the claim of right against everyone except the Owner. In this impasse upon whom should the obligation rest to take action? Who should gain for want of action? Both on the general equities and the availability of effective means, we approve the rule forecast, Linkenhoger v. Owens, supra, by these Texas precedents which puts the necessity for action on the Landlord, Coyle v. Franklin, 5 Cir., 54 F. 644; Custer v. Hall, 71 W.Va. 119, 76 S.E. 183, 187; Van Deventer v. Lott, C.C.E.D.N.Y., 172 F. 574, 589, 590, affirmed 2 Cir., 180 F. 378; 4 Tiffany Real Property, 2d Edition, Section 1168; 38 A.L.R.2d 826-835; cf. Kimble v. Willey, 8 Cir., 198 F.2d 812, reversed on rehearing, 8 Cir., 204 F.2d 238.

In this equilibrium of knowledge, the law should range itself on the side of protecting, not undermining, ownership. The Landlord is yet a trespasser. His wrongful possession becomes rightful only through continued adverse claim made for him by the Tenant. Knowing that the Tenant no longer proclaims for him against all, it is both up and open to him to remove this duplicitous agent, and when he fails reasonably to take action, Coyle v. Franklin, 5 Cir., supra, his adverse possession is broken.

Laird, with positive knowledge that his Tenant no longer asserted for him alone, nevertheless did nothing from 1938 on. Nothing done by the Griffins between 1938 and 1947 indicated to Kirby that they no longer held for it. The new lease of 1947 made it doubly sure as corroboration of nine years of passive acquiescence. At no time, then, since 1938 has there ever been ten years continuous adverse possession for Laird.

The evidence, with all indulgences in Laird's favor, did not, under Texas law, warrant the finding of a ten-year limitation. In entering judgment for Laird, the District Court mistakenly construed and applied Texas law. This was, of course, a plain error of law in no way placing the Judge in the position of weighing, reexamining or rejecting controverted facts which had been resolved by the jury verdict. Since the evidence did not under any interpretation permit a judgment for Laird, the complaint in the motion for new trial that the evidence was insufficient to support the verdict and judgment, and that verdict and judgment were contrary to the overwhelming weight of the evidence, obviously comprehended the charge that there was no evidence. Texas law, properly construed, applied to all of the facts interpreted most favorably to Laird required judgment for Kirby, not Laird, and, under such circumstances, the motion for new trial should have been sustained, Commercial Credit Corp. v. Pepper, 5 Cir., 187 F.2d 71; Whiteman v. Pitrie, 5 Cir., 220 F.2d 914, 918, 919; Miller v. Tennessee Gas Transmission Co., 5 Cir., 220 F.2d 434; Marsh v. Illinois Central R. Co., 5 Cir., 175 F.2d 498, 500; Moore's Federal Practice, § 59.08(6), page 3827, notes 29, 30, § 59.08(5), page 3816, and the judgment must therefore be reversed and remanded to the District Court for a new trial; see Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S.Ct. 523, 57 L.Ed. 879; Baltimore & Carolina Line, Inc., v. Redman, 295 U.S. 654, 55 S.Ct. 890, 79 L.Ed. 1636; ...