Petitioner Robert L. Wright sued the respondent Vernon Compress Company for the title and possession of Lots Two (2) and Three (3) in Block Seven (7) of the R. F. Jones Addition to the town of Vernon, Wilbarger County, Texas. In addition to the usual allegations in trespass to try title, petitioner specially plead title by adverse possession under the 3, 5, 10, and 25-year statutes of limitations of the State of Texas. The respondent answered by pleas of not guilty and also alleged title by adverse possession under the 3, 5, 10, and 25-year statutes of limitations of the State of Texas. It further alleged the placing in good faith of valuable improvements upon said land and consequently it sought judgment against the petitioner for all sums so expended in the event petitioner should recover title to the lots of land involved. After trial by the court, with the aid of a jury, the court entered judgment in favor of the petitioner for the title and possession of the land involved, and entered judgment in favor of the respondent for the sum of $500 being the sum found by the jury to be the enhanced value of the land by virtue of improvements placed on said land in good faith. This latter part of the judgment is not involved in this Court, hence, needs no further consideration, except to say that the judgment of the trial court on this phase of the case having become final must be affirmed. On appeal the Court of Civil Appeals has reversed the judgment of the trial court and rendered judgment that respondent Vernon Compress Company have title and possession of Lots Two and Three of Block Seven of the R. F. Jones Addition to the town of Vernon, Wilbarger County, Texas. 284 S.W.2d 168.
The facts are rather involved but we believe that the following statement will afford a proper background for our decision in this case.
The land here involved was patented to T. Windsor Robinson on July 16, 1883 by the State of Texas. R. F. Jones was conveyed the property when a partition deed was executed by T. Windsor Robinson, trustee, and the other owners of the property on September 11, 1883. R. F. Jones conveyed the property to J. A. Rogers on October 15, 1889 and he conveyed to F. P. Heare on March 15, 1890. On April 11, 1892, A. C. McKinney, as Tax Collector for the City of Vernon, sold the property by summary sale for taxes to the City of Vernon, since there were no other bidders. The title acquired under this sale remained outstanding in the City of Vernon until after the commencement of this suit. The City of Vernon conveyed these lots to the Vernon Compress Company, defendant and respondent here, on November 17, 1954. Notwithstanding the conveyance to the City of Vernon in 1892 for delinquent taxes, F. P. Heare conveyed the property to Chester Clark, Milton May, W. D. Austin, and J. A. Cummins on March 6, 1894; J. A. Cummins taking a one-half interest, Clark and May each taking one-sixth interest, and W. D. Austin and R. N. Austin each taking one-twelfth interest. On May 24, 1894 J. A. Cummins conveyed his undivided one-half interest in this property to Milton May, C. C. Clark and S. W. Merchant. Since the deed does not designate the share each received, this would give each one-third of Cummins' one-half interest or one-sixth interest of the whole. Milton May already owned a one-sixth interest, therefore, May's share would be one-third interest in the property. In 1901 the County Attorney of Wilbarger County, Texas instituted a suit against Milton May for the collection of state and county taxes and a foreclosure of the tax lien but did not join the City of Vernon nor any of the other part owners of said property. The suit was prosecuted to judgment and an order of sale was issued and the property in
At the close of the petitioner's evidence in this case and thereafter at the close of all the evidence, the respondent presented its motion for an instructed verdict which was by the court overruled. The respondent urged in its motion that it was entitled to an instructed verdict for the reasons (1) that the plaintiff-petitioner failed to establish title either by the record or by limitations, (2) that the undisputed record title and prior outstanding record title reposes either in respondent through its deed from the City of Vernon, or else the prior legal outstanding title reposes in the City of Vernon and not in anyway in the respondent, and further contended that the record title being in the City, limitations will not run against any political subdivision of the State of Texas, and (3) that if the petitioner ever acquired any title to the property by limitation or otherwise, the same had been lost and now reposes in the defendant-respondent by virtue of the continuous, adverse, open, notorious, hostile, and peaceable possession of the respondent.
In its submission of special issues to the jury, the court did not submit any issues inquiring as to petitioner's claim of title under either of the statutes of limitations of the State of Texas. The only issue of limitations submitted was an inquiry as to whether or not the respondent, Vernon Compress Company, acquired title under the ten-year statutes of limitations. In answer to this issue the jury gave a negative answer. The jury further found that the Thomasons, petitioner's predecessors in title, did not abandon the land in question.
The respondent-defendant filed its motion for judgment non obstante veredicto which was to the effect that under the undisputed evidence the respondent had acquired title under the ten-year statutes of limitations, and, therefore, no issue of fact was raised for submission to the jury. The Court of Civil Appeals has sustained this contention as well as the respondent's contention that it conclusively proved that it was the owner of the outstanding title which had been acquired by the City of Vernon under the tax sale above mentioned. We do not agree with the Court of Civil Appeals on either of these questions. First, we shall consider the question of outstanding title. Respondent relies on the title acquired by the City
One relying on a City Tax Collector's deed as a valid source of title must sustain that deed as to the authority to sell the land and that the statutory conditions were complied with. Meredith v. Coker, 1885, 65 Tex. 29; Clayton v. Rehm, 1886, 67 Tex. 52, 2 S.W. 45; Dawson v. Ward, 1888, 71 Tex. 72, 9 S.W. 106; Earle v. City of Henrietta, 1897, 91 Tex. 301, 43 S.W. 15, answering certified questions of Tex.Civ. App.1897, 41 S.W. 727. Under this rule, the Vernon Compress Company, the claimant under the deed to land sold by summary proceedings, has the burden of proof to sustain the sale because the collector's deed is not in itself conclusive proof that the authority conferred under the statute has been complied with. Justice Brown, in the case of City of Henrietta v. Eustis, 1894, 87 Tex. 14, 18, 26 S.W. 619, 620, when speaking of the collection of taxes by summary sale under statute stated:
Independent of constitutional or statutory law, a tax deed does not affect title, unless the authority of the maker of the deed is shown by proof of the performance of all precedent requisites. Meredith v. Coker, supra; Dawson v. Ward, supra; Clayton v. Rehm, supra. Article 8, Section 13, of the Texas Constitution, Vernon's Ann.St., provides that the deed of conveyance to the purchaser for all lands and other property sold for taxes shall be held to vest good and perfect title in the purchaser thereof subject to be impeached only for actual fraud. The Constitution only states the effect of the deed when the law has been complied with—it dispenses with no proof. Meredith v. Coker, supra. However, under this provisions of the Constitution, enabling legislation has been passed. Article 1059, Vernon's Annotated Civil Statutes of Texas, relating to Cities, Towns, and Villages, was passed by the Legislature pursuant to the Constitution. It is as follows:
"And in all controversies and suits involving the title to land claimed and
This statute has undergone little change since its inception in 1875. It is to be understood that the Vernon Compress Company tendered the collector's deed without any proof of the levy of the tax by the city. The question then arises whether the respondent had to make this proof before obtaining the advantage of Article 1059, supra. Stating it in another way, did Article 1059, supra, change or dispense with any of the proof necessary for one relying upon a tax deed as a source of title? The case of Earle v. City of Henrietta, supra, sufficiently answers the question before us. This Court, in answering the question as to whether the deed constituted prima facie evidence that the tax had been levied according to law, stated [91 Tex. 301, 43 S.W. 17]:
It is to be noted again that Article 518 appears substantially the same as Article
The respondent claims title under the ten-year statute of limitations of the State of Texas and must rely upon the character of adverse possession as claimed to have been shown through the claimed adverse possession through one Charley Shahay from September 1941 to September 1946; the possession of J. B. (Barney) Hardin from September 1946 to January 21, 1952; the possession of Doug Edwards and his heirs from January 21, 1952 to August 14, 1953, and the respondent's possession from August 14, 1953 to March 11, 1954, the date this suit was filed. We hold that the evidence offered in support of respondent's claim of peaceable and adverse possession under the ten-year statutes of limitation failed to raise an issue of fact on the question of limitation and unquestionably since the issue was submitted and answered by the jury in the negative, the trial court properly overruled respondent's motion for judgment non obstante veredicto so far as this issue was concerned. The evidence shows only mere occupancy of the land by Charley Shahay. There is no evidence showing that the claim of Shahay was adverse. There is evidence that he lived on the land, but none that he claimed the land as his own. The testimony of J. B. Hardin, respondent's witness, shows that the fences were down when he (Hardin) purchased from Shahay by deed which was claimed to have been lost. The only improvements on the property were a tent and a small cardboard house. There was no evidence that these improvements were put there by Shahay. Shahay did not testify. Mere occupancy of land without any intention to appropriate it will not support the statute of limitation. Nona Mills Company v. Wright, 101 Tex. 14, 102 S.W. 1118; Sellman v. Hardin, 58 Tex. 86; Osborn v. Deep Rock Oil Corporation, 153 Tex. 281, 267 S.W.2d 781. It is unnecessary to discuss the evidence touching upon the use and occupancy and possession by Hardin, the Edwards, and the respondent for the reason that without being able to tack on to the Shahay possession, the proof, if sufficient, falls short of the requirements of the ten-year statute of limitations. Since we have concluded that the judgment of the Court of Civil Appeals must be reversed on the two points upon which its judgment rests, we now look to the points in respondent's brief in that Court to determine whether its judgment in favor of defendant-respondent can be affirmed.
The only remaining question presented in the respondent's brief in the Court of Civil Appeals was its contention that although petitioner offered evidence on his affirmative plea of title to all of the land involved in this suit by virtue of the ten-year statute of limitations of the State of Texas, he failed to request or submit any issues upon that theory of the case, and,
The trial court in its judgment found that "Under the facts, title and possession of said land and premises in question, as a matter of law, were vested in petitioner." Respondent makes no attack upon this finding, and in its brief in the Court of Civil Appeals made no effort to point out wherein the evidence of limitation on the part of plaintiff-petitioner was not conclusive.
The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.