Olsen v. Grelle

• Decision Date: 16 March 1921
• Docket Number: (No. 144-3077.)
• Parties: OLSEN v. GRELLE et al.
• Court: Texas Supreme Court

Page 927

228 S.W. 927

OLSEN v. GRELLE et al.

(No. 144-3077.)

Commission of Appeals of Texas, Section B.

March 16, 1921.

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

Suit by William Olsen against William Grelle and others. The Court of Civil Appeals affirmed a judgment for defendants (190 S. W. 240), and plaintiff brings error. Judgments of the district court and Court of Civil Appeals reversed, and cause remanded, with directions.

Jas. Raley, of San Antonio, for plaintiff in error.

E. B. Anderson, of Goldthwaite, for defendants in error.

McCLENDON, P. J.

This was a suit by William Olsen against William Grelle and others, for the partition of the Joseph T. Bell survey in Hamilton county, containing 320 acres. Plaintiff claimed to be the owner of one-half undivided interest. The defendants set up title in themselves, and among other pleas invoked the statute of limitations of three, five, and ten years. The case was tried before the court without a jury, and judgment was rendered for the defendants; the judgment reciting that the defendants established their pleas of limitations under the five and ten year statutes. The Court of Civil Appeals affirmed this judgment, holding that the evidence sufficiently established title under the five-year statute. 190 S. W. 240. The correctness of this holding by the Court of Civil Appeals is assailed, upon the contention that the evidence was insufficient under the five-year statute upon two grounds: First, because the defendants were cotenants of plaintiff, and no notice of their adverse holding had been brought home to plaintiff; and, second, because defendants, in order to defeat plaintiff's title, would, in the absence of the five-year statute, have to deraign title through a forged deed.

In 1881 the title to the survey was vested in Dortie Olsen for life, with remainder to William Olsen, plaintiff, and Samuel Olsen. On May 17, 1881, Dortie Olsen, "acting for herself, and purporting to be acting as agent and attorney in fact for William Olsen under a power of attorney from him, conveyed the 320 acres to S. R. Thorpe and L. W. Campbell." Six days later Samuel Olsen conveyed to Thorpe and Campbell a one-half undivided interest in the survey. By mesne conveyance under these deeds 240 acres of the survey passed in 1888 in severalty to defendant William Grelle, and in the same year 80 acres passed in like manner to defendant J. T. Priddy. For more than ten years prior to the filing of the suit all the deeds under which Grelle and Priddy claimed had been duly of record, and they had each paid taxes and held such possession of the respective tracts as would meet the requirements of our limitation statutes. Dortie Olsen died about six or seven years before this suit was brought. William Olsen testified that he did not execute any power of attorney in favor of Dortie Olsen, and no evidence was offered showing that any power of attorney was ever executed.

The defendants not being strangers to the life estate of Dortie Olsen, limitation would not begin to run against the remainderman until her death, which precludes reliance upon the ten-year statute of limitations; but limitation would begin to run against the remainderman from the date of the death of the life tenant. Millican v. McNeill, 102 Tex. 189, 114 S. W. 106, 21 L. R. A. (N. S.) 60, 132 Am. St. Rep. 863, 20 Ann. Cas. 74.

We cannot agree with plaintiff's contention that notice of defendants' adverse claim was not brought home to plaintiff so as to charge him with knowledge thereof. That the cotenant not in possession must have actual knowledge of the fact that the cotenant in possession is disputing his right to the property, or such cotenant's...