Thompson v. Jones

GAINES, Associate Justice.

—A motion for a rehearing in this cause was granted at the last Tyler Term. Upon a reconsideration of the questions decided in the former opinion we are satisfied with its conclusions except in one or two particulars.

The case was before this court at the Austin Term, 1883, and was reversed and remanded. Tlie opinion is reported in 60 Texas, 94 . We are unable to determine from the record before us whether this is a new suit or but the continuation of the first action. At all events the same case in substance is presented by the two appeals. In the opinion upon the former appeal it was distinctly held that if the land in controversy was the homestead of Thomas Harrison at the time of the execution of the mortgage upon it by him and Francis Harrison, the sale under the judgment of foreclosure to which Haney Harrison, the wife of Thomas, was not a party, did not pass title to the one-half interest owned by him at the date of the encumbrance. That ruling is in accordance with the doctrine announced in the case of Campbell v. Elliott, 52 Texas, 151 , which is cited in suqjport of it. Without reference to our individual views upon the matter, if it were in question, we are of opinion that the decision upon the former appeal should be held the law of the case. In deference to the previous ruling of this court, but contrary to his own opinion as shown by a note which appears in the record, the trial judge charged the jury in accordance with the law announced upon the former appeal. Consequently there was no error in the charge given or in refusing the instructions asked upon this point.

There is an intimation in the former opinion on this appeal that the proof showed that Garnett, the purchaser at the execution sale, went into- *629 possession of the land before the death of the mother of appellant Mrs. Thompson, and that therefore the statute was running at the death of the mother and continued to run against the daughter, notwithstanding her minority. But as we read the record there was a conflict of testimony upon the question whether Mrs. Harrison was living or not at the time Garnett took possession of the land. If it should be shown that she was living at that time, and that the possession of Garnett and others under whom defendants claim continued for the necessary period to complete the bar of the statute, then Mrs. Thompson could not recover anything through her mother. But it is evident that she has recovered in this action not in right of her mother. The recovery is limited to the undivided interest in the land which her father held at the time he and his brother made the mortgage, and it is conceded that this interest was his separate property. The judgment does not so declare, but the evidence and charge of the court make it apparent that this was the interest recovered. In order to set the statute of limitations in operation against Mrs. Thompson as an heir of her father at any time before her marriage it was essential to show that Garnett took possession before the death of the father. The most that defendants can claim upon this issue is that the testimony was conflicting.

By their tenth cross-assignment of error the appellees complain that the verdict of the jury is contrary to the law in allowing appellants the value of the use and occupation of the land. We are unable to see upon what theory the verdict of the jury can be sustained. We think it appears from the testimony that but for the improvements put upon the land by the defendants and the labor expended by them to make it productive it would have yielded no income. The verdict of the jury finds that the defendants were tenants in common with plaintiffs in the premises. We understand the rule to be that one tenant in common who uses and cultivates land can not be made to account to his cotenant until there has been a formal demand by the latter to be admitted to the possession in common and such possession has been refused. Where a tenant in common has nothing to do but to receive the rents a different rule prevails. Neil v. Shackelford, 45 Texas, 119 .

We are clearly of opinion that defendants should not have been charged with rent of the land in this case until a demand for possession was made, and then not upon their improvements. Besides, the defendants claimed in this case that they were possessors in good faith, and asked compensation for their improvements in the event a judgment was recovered against them. The evidence warranted a verdict in their favor upon the issue and the jury so found. Although they may have been tenants in common with the plaintiffs this did not deprive them of their right to compensation, for improvements under the statute. The equity of a defendant who improves real estate, believing he owns the whole when he owns only an undivided *630 interest, is certainly as great as that, of one who thinks he owns the whole when in fact he has no title whatever.

If upon another trial it should be determined that the defendants own one-half of the land, and that only, and if it should be further determined that they are possessors in good faith, then they will be entitled to claim the rights both of tenants in common and of possessors in good faith under the statute. They will be chargeable as such possessors only with one-half of the value of the use and occupation exclusive of the improvements (Rev. Stats., art. 4814), and will be entitled to their improvements or one-half of their value, to be secured to them in the mode provided by the statute. If in the partition their improvements can be set apart to each of them respectively without prejudice to their cotenants, this should be done, and nothing should be allowed for their value, and the value should not be estimated in the partition.

For the error indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.

Delivered June 13, 1890.