Tex-Wis Co. v. Johnson, TEX-WIS

• Citation: 534 S.W.2d 895
• Decision Date: 24 March 1976
• Docket Number: No. B--5503,TEX-WIS,B--5503
• Parties: COMPANY et al., Petitioners, v. Margaret JOHNSON et al., Respondents.
• Court: Supreme Court of Texas

Page 895

534 S.W.2d 895

TEX-WIS COMPANY et al., Petitioners, v. Margaret JOHNSON et al., Respondents.

No. B--5503.

Supreme Court of Texas.

March 24, 1976.

Rehearing Denied April 28, 1976.

Cox, Pakenham & Roady, Joe G. Roady, Houston, for petitioners.

Tillman, Pribilski & Hunt, James R. Hunt, Houston, Haley, Fulbright, Winniford, Bice & Davis, Sherwin A. Winniford, Waco, Mac Leon Bennett, Normangee, for respondents.

GREENHILL, Justice.

This is a suit in trespass to try title.

Plaintiffs Margaret Johnson and others brought suit against Tex-Wis Company and other persons claiming under Tex-Wis for title to, and possession of, a 53-acre tract of land and an adjoining 96-acre tract. In accordance with the jury's findings, the trial court rendered judgment in plaintiffs' favor with respect to both tracts. The Court of Civil Appeals affirmed. 525 S.W.2d 232. We affirm.

The plaintiffs are the heirs of King Alexander. Prior to 1892, King Alexander took possession of the 150 acres of land which constitute the two tracts in controversy.

As a result of litigation with the record titleholder of the 150 acres, Alexander obtained a judgment dated March 16, 1911, which awarded him 50 acres to be 'carved out' from the 150 acres 'in order to cover the house and other improvements thereon placed by King Alexander and the same is to be selected and run out by said King Alexander so as to include the aforesaid improvements, or as much of same as can conveniently in a square (sic).'

A set of field notes dated September 15, 1915, purported to locate '50 acres out of the K. Alexander 151 1/2 acre survey.' ¹ In 1918, Alexander purchased the other 96 acres which make up the 150 acres. In consideration, he executed a note secured by a deed of trust. In 1921, as a result of Alexander's default on the note, the 96 acres were sold under the deed of trust to the predecessor in title of Tex-Wis. In spite of this foreclosure, Alexander continued to occupy the entire 150 acres until his death in 1934, at which time some other members of his family continued in possession.

In 1948, Tex.-Wis obtained from the record owner a quitclaim deed to some 650 acres. This deed covered the 96-acre tract, but it expressly excepted 'an undivided interest of 50 acres which was awarded to King Alexander by decree of court.'

The jury found that the plaintiffs, or those under whom they claim, had held exclusive, peaceable and adverse possession of both the 96-acre tract and the 53-acre tract for a period in excess of ten years. Such possession was found to have begun on March 16, 1911, and to have ended in 1964, a period of some 53 years. ² The jury also found that Tex-Wis did not hold exclusive, peaceable and adverse possession of either tract for a period equal to or exceeding ten years. The trial court accordingly awarded plaintiffs title and possession to both tracts; and as mentioned, that judgment was affirmed by the Court of Civil Appeals.

Tex-Wis first complains that there is no evidence to support the jury's finding of adverse possession of the 96-acre tract by plaintiffs. While there is ample evidence of actual possession, Tex-Wis strongly argues that possession of the land by King Alexander and his family could not be considered Adverse, since such possession was based on a holding over after the 1921 foreclosure sale of the 96 acres.

It is clear that, as a general rule, a party holding over after the execution of a deed or the rendition of an adverse judgment is merely a permissive tenant; and his possession is subservient to the party holding title. Sweeten v. Park, 154 Tex. 266, 276 S.W.2d 794 (1955); Kidd v. Young, 144 Tex. 322, 190 S.W.2d 65 (1945). Consequently, such possession cannot be considered adverse until the tenancy has been repudiated, and notice of such repudiation has been brought home to the titleholder. Sweeten v. Park, supra; Mauritz v. Thatcher, 140 S.W.2d 303 (Tex.Civ.App.1940, writ ref'd).

Actual notice of the repudiation, however, is not required. Under certain circumstances, notice may be inferred. Killough v. Hinds, 161 Tex. 178, 338 S.W.2d 707 (1960); Vasquez v. Meaders, 156 Tex. 28, 291 S.W.2d 926 (1956); Moore v. Knight, 127 Tex. 610, 94 S.W.2d 1137 (1936); Illg v. Garcia, 92 Tex. 251, 47 S.W. 717 (1898); Mauritz v. Thatcher, supra. This is the problem at hand.

While these rules are recognized, it is not clear what circumstances permit an inference of notice. Tex-Wis contends that there must be a change in the use, or the character of possession, of the land to give rise to such an inference. Since there is no evidence that Alexander or his family made any different use of the land, or in any way changed the character of their possession after the foreclosure in 1921, Tex-Wis argues that as a matter of law there could have been no notice of repudiation. There are cases which tend to support this position. See, e.g., Killough v. Hinds, supra; Sweeten v. Park, supra; Kidd v. Young, supra; Achille v. Baird, 361 S.W.2d 439 (Tex.Civ.App.1962, writ ref'd n.r.e.); Brown v. Bickford, 237 S.W.2d 763 (Tex.Civ.App.1951, writ ref'd n.r.e.).

However, there are other cases, involving long-continued use, which permit the jury to infer notice of a repudiation without any change in the use of the land. For example, Mauritz v. Thatcher, 140 S.W.2d 303 (Tex.Civ.App.1940, writ ref'd), states that:

'Such notice may be constructive and will be presumed to have been brought home to the co-tenant or owner when the adverse occupancy and claim of title to the property is so long-continued, open, notorious, exclusive and inconsistent with the existence of title in others, except the occupant, that the law will raise the inference of notice to the co-tenant or owner out of possession, or from which a jury might rightfully presume such notice. It is held that repudiation of the claim of a co-tenant and notice thereof may be shown by circumstances and that a jury may infer such facts from long continued possession of the land under claim of ownership and non-assertion of claim by the owners.' ³ 140 S.W.2d at 304.

See also Moore v. Knight, supra; and Illg v. Garcia, supra.

It is our opinion that this quotation remains an accurate statement of the law. This conclusion is supported by an analysis of the opinions of this Court in Sweeten v. Park and Vasquez v. Meaders, cited above. In Sweeten, this Court approved the holding of the Court of Civil Appeals that there was no evidence to support a finding of repudiation. In addition, however, we approved the following language of the Court of Civil Appeals:

'. . . It was not contended that appellees gave actual notice of a repudiation of tenancy to Mrs. A. J. Hutcherson or to her children, who were the holders of the record title from the date of the judgment until the conveyance to Lon Felts in 1938. As suit was filed on December 23, 1947, repudiation and notorious acts evidencing such repudiation must have taken place between May 30, 1934 (when the holdover tenancy began), And December 23, 1937, a period of approximately three years and seven months after the date of the judgment. When we limit our consideration to this period, it is found that the possession of appellees was of substantially the same nature and kind as that maintained by them prior to the rendition of the judgment. Under ordinary circumstances, it would be sufficient to support a findings of adverse possession under the statute, but it is insufficient to show a repudiation of tenancy by acts of unequivocal notoriety.' 276 S.W.2d 794, at 798.

It is apparent from this quotation that the Court relied on the fact that the length of the adverse claimants' possession had been only thirteen years. Since notice of repudiation is required before the ten-year statutory period begins to run, such notice had to arise during the three-year-and-seven-month period between the beginning of the holdover tenancy and the date ten years prior to the filing of the suit. Three years and seven months was not considered to be 'long-continued possession' under the Mauritz rule. Since there was no change in the use of the property during that relatively brief time period (3 1/2 years), there was no evidence from which the jury could find or infer notice of repudiation.

The Vasquez case, on the other hand, involved twenty-seven years of hostile possession, or seventeen years in excess of the ten-year statutory period. While this Court sustained title in the adverse claimant by concluding that the character of his possession, use and occupancy was distinctly different after the holding over, this Court's opinion also made reference to the rule of long-continued possession:

'We are of the opinion that the (Sweeten) case has no application here, but we do find language in the opinion of the Court of Civil Appeals in the (Sweeten) case which indicates that the court would have reached a different conclusion in the present case had it been of the opinion that the evidence fulfilled the requirements announced by the courts to be necessary to sustain a repudiation of tenancy of acts of unequivocal notoriety as distinguished from actual notice of repudiation. The court said, in part: '. . . The cases sustaining repudiation of tenancy by acts of unequivocal notoriety as distinguished from actual notice of repudiation, generally rely upon long continued possession and user coupled with nonclaimer on the part of the true owner. For instance, it may be that the evidence in this case would fulfill these requirements if the date of December 23 of the year 1945 were taken, but it is not sufficient to show the requisite quality of possession at the time of the crucial date of this lawsuit, that is, December 23, 1937, ten years prior to the filing of appellant's petition. . . .' We simply hold that The crucial time of the present lawsuit is the year 1939, the lawsuit having been filed in 1949, and that the evidence meets the test as laid down by previously...