The opinion
On Motion for Rehearing.
The appellees have filed in this cause a motion for rehearing, which we have carefully considered in deference to the learning of counsel, and the earnestness with which the motion is urged. They insist that this honorable court erred when it said (referring to the federal court suit) “that, in so far as the title to the land was concerned, the Texas Pine Land Association and its trustees had no interest,” for the reasons: (1) The plaintiffs in that suit expressly alleged that the Texas Pine Land Association had taken possession of the land in controversy on January 1, 1900, and during such time they had *796 cut and removed over $20,000 worth of timber, for which damages were sought, as well as for the rental value of the land, and (2) that the deed of July 31, 1901, irom the trustees of the Texas Pine Land Association to the Houston Oil Company of Texas conveying the land in controversy was a special .warranty deed, and that said deed contained a provision as follows:
“The premises are conveyed subject to a mortgage or a deed of trust dated November 1, 1894, made to the American Loan & Trust Company at Boston, to secure an issue of bonds of said Texas Pine Land Association, amounting to $50,000, of which bonds $39,000 are still unpaid.”
Under the first proposition, it is urged:
“That the Texas Pine Land Association was therefore, not only a proper party to the suit, but it was necessary, in order for the Beresfords, as plaintiffs, to recover therein for the timber cut, and possession held by such defendants, that su.eh plaintiffs show their title to the land, and, conversely, it was a perfect defense for the Texas Pine Land Association to show that they were the owners of such land, or had title thereto when the timber was cut prior to the filing of said suit.”
It is to be observed that the federal suit contained two distinct causes of action in separate counts, one to obtain the title and possession of land in the statutory form of trespass to try title, and the other to obtain a personal money judgment for tort, to wit, the wrongful cutting and conversion of the timber, which, under the statute, could be included in the action of trespass to try title. In the first cause of action the title and possession of the land was directly and primarily involved. To render an effective judgment thereon, as against the real and true owners of the title, at the time of filing the suit, such owners certainly should have been made parties to the suit litigating that title. A judgment against a prior vendor or a third person, erroneously asserted in the pleadings and sued as the true owner, would certainly not affect in any manner the title of the true owners. It is this sort of a judgment that the appellees are relying upon as an estoppel.
As heretofore said, the Texas Pine Land Association had neither the possession nor the title to the land in controversy at the time the suit in the federal court was filed against it and its trustees. That suit was filed November 1, 1901. The deed from, the Texas Pine Land Association to the appellee the Houston Oil Company of Texas was executed on July 31, 1901, and filed for record in Hardin county, Tex., on August 17, 1901, fully 2% months before the federal court suit was filed. Suppose the Texas Pine Land Association had failed or neglected to make a defense to this suit, and judgment by default had been entered against it simply for the title and possession of the land, without any judgment on the claim for damages; can .it be maintained by any authority that the Houston Oil Company of Texas, a prior vendee of the Texas Pine Land Association, would have been bound by that Judgment? The question is so contrary to reason and sound principle that a mere statement of it contains its own refutation.
As an abstract proposition, it may be admitted that, in so far as the second cause of action in the federal court suit is concerned —that is, for the wrongful cutting and conversion of timber from the date of the alleged wrongful entry, January 1, 1900, up to the 31st day of July, 1901 — the Texas Pine Land Association, being the one alleged to have committed the wrong, and from whom damages therefor were claimed, was a necessary party to the suit; and in determining the issue of damages for cutting and removing the timber it may be further conceded that the title to the land, as between the two contending parties to that suit, was incidentally in issue. If, as between them, the court should determine that the Texas Pine Land Association had the title to the lands when the timber was cut and removed, even though that determination is based upon a mistaken assertion of title in plaintiff’s pleadings, as being in the defendant the Texas Pine Land Association continuously from January lj 1900, up to the filing of the suit, that judgment did not and could not in any manner affect the true owner of the title to said land; but, as a matter of fact, no judgment was ■ entered on the second cause of action stated in the petition. Under the disposition made of the first cause, no such judgment was necessary. The determination of the first canse of action in that suit in favor of the defendants ipso facto eliminated the second cause of action from the litigation. The judgment entered was one primarily affecting the title to the land, and, as here-inbefore stated, that judgment in no manner was binding upon Houston Oil Company, the appellee in this suit.
[21] Under the second proposition, it is contended that in Revised Statutes, art. 7735, it is provided:
“When a party is sued for lands, the real owner or warrantor may make himself, or * * * be made, a party defendant in the stsit, and shall be entitled to make such defense as if he had been the original defendant in the action ”
—and that this statute was enacted to enable a warrantor to come into a suit which had been properly instituted against those who really owned the title to the land, who in the event of a judgment would he bound thereby, to assist or take over the defense of the suit, so as to escape. liability on the warranty. This contention may be conceded, but there is nothing in this statute which would modify or dispense with the rule that requires parties really owning the title to the land to be affected by the judgment disposing of the title to be made parties to the suit.
The language used in the main opinion, and about which complaint is made in the motion for rehearing, must be construed in *797 tile light of what is here said and in the application of the rule of estoppel as it applies to judgments. The reasoning of counsel upon the contentions herein contained is academic, and does not apply to the facts and questions as we find them presented for our determination. It is also earnestly insisted that we erred in holding that there were facts and circumstances shown by the record which raised an issue for the jury on the question of forgery of the deed from Montgomery to Samuel Moore of date June 5, 1888, and we are ashed to set out the proof, whether circumstantial or otherwise, which we consider sufficient to require the question of forgery of said deed to be submitted to the jury, and in compliance with that request we enumerate the following circumstances:
In this case the record shows the execution of two deeds out of the original grantee, D. O. Montgomery, one of which was to Arthur Henry, of date January 27, 1836. In connection with this deed it is shown that Arthur Henry paid the government dues on this land, and conveyed it to Beresford in 1SJ5, and delivered with the deed the original testimonio and other original documents in the chain of title. The record does not show any suspicious circumstances surrounding the execution of this deed. There are many acts reflected in the record showing a continuous assertion of claim and title to the land by the Beresfords under the chain of title emanating through this deed.
The second deed purports to have been executed by D. O. Montgomery to Samuel Moore in 1838. Samuel Moore lived in South Carolina, and not in Texas, and he was a relative of David Brown. David Brown is shown to have lived about the date of the execution of the latter deed in San Augustine county; that he came originally from South Carolina; that his real name was Robert Stephens, which he changed to David Brown when he came to Texas; that he was a surveyor, and trafficked in land 'titles; that his character was bad; and that he was commonly known as a “land shark or a forger of land titles.” No claim to this land or any act of ownership on the part of Samuel Moore is reflected in the record, except as hereinafter stated. The land was never assessed by Moore for taxes. The only evidence tending to reflect an assertion of claim by Moore to the land was the execution by him of a power of attorney to Reuben L. Stevens “to convey such lands as may have been granted to him in the state of Texas, provided that all of the proceeds thereof be appropriated by our said attorney to the use and benefit of Mary Brown, daughter of David Brown, both of the state of Texas.” Reuben L. Stevens was a brother of David Brown, and resided in the state of South Carolina, and, as recited in the power of attorney, Mary Brown was the daughter of David Brown, and lived in Texas. Under this power of attorney R. L. Stevens conveyed the land to Mary E. Brown on August 10, 1849. This deed was filed for record October 7, 1854. Samuel Moore subsequently, to wit, on the - day of -, 1849, made a quitclaim deed to the same land to Mary E. Brown. These circumstances are sufficient to raise a strong inference that David Brown was the real owner of the league in question.
The other deeds introduced in evidence tone of which has been judicially determined to have been a forgery, the deed from Samuel Moore to Hurd, of date 20th day of January, 1838, 144 S. W. 334 ), and their manner and form of execution; their peculiar verbiage; the similarity of their dates; the way in which they were filed for record, all of them appearing to' have been filed on the 22d and 23d day of March, 1841, all of the acknowledgments appearing to have been taken before the same notary; the lapse of time appearing between the dates of their execution and the alleged dates of their acknowledgment, all of them appearing to have been executed in Shelby county — all of these matters were circumstances winch could be considered by the jury as reflecting the method, manner, and system of David Brown in his efforts to acquire the beneficial interest in the lands in which he was trafficking, and to cover over such intent and purpose. The taking of conveyances in the names of his brother and other relatives, who subsequently gave powers of attorney or quitclaimed the title back to Mary E. Brown, his daughter; the recitation contained in some of the conveyances found in the record that David Brown was, in fact, the beneficiary and owner, etc.' — these matters reflect more or less light upon the question of forgery of the deed in the instant ease. They» show a studied, roundabout, and indirect way of acquiring titles, which might be considered by the jury as the method a “forger and land shark” would naturally select to cover up the tracks of his unlawful acquisition. The peculiar verbiage of all of the deeds in evidence might have logically been considered by the jury as leading to the conclusion that all of said deeds were written by one and the same hand. The unusual verbiage of said deeds is an extraordinary feature of them. It fixes to each of such conveyances a prominent characteristic, which links them together, and stamps them with features as' pronounced and distinctive as that which heredity gives in family relationships.
It is also to be noted from the evidence that, when the deed from Montgomery to Moore was recorded in Menard county in 1842, the certificate of acknowledgment was unsigned by Lusk, and bore no seal. When recorded in Hardin county in 1859, the certificate bore the signature of G. Lusk, with the seal impressed. This is a circumstance of *798 more or less cogency bearing upon the genuineness of the instrument.
It is earnestly urged that our decision in this case on the question of forgery is directly in conflict with the case of Hanks v. Houston Oil Co., 178 S. W. 635, in which case it is claimed the court held similar facts did not raise the issue of forgery sufficient to cause the trial court to submit that issue to \he jury. The official report of the Hanks Case does not set out the evidence which the court considered “negative, disjointed circumstances not inconsistent with the genuineness of the deed.” However, we have been furnished by counsel with a copy of the briefs in said cause, which specifically set out the circumstances, supported by references to the record, which were relied on in said cause as raising the issue of forgery. We note the following distinction between the facts in the Hanks Case and in the instant case: In the Hanks Case there was but one deed out of the original grantee, A. W. Smith, that deed being to John R. Stevens, under whom the appellees claimed, and against which an affidavit of forgery had been filed. The league of land was granted to Smith in 1835. The evidence showed that Smith lived in the neighborhood of this land for a great many years after the execution of the deed in question; yet up to the time the suit was filed in 1910, a period of 75 years, neither the original owner of the land, Smith, nor any of his heirs, made any claim to the land, by conveyances or otherwise. In the instant case the record is replete with positive, distinct, and continuous assertions of title to the land in controversy by Beres-ford and his heirs from and under the first deed executed by Montgomery to Arthur Henry down to the present time. Another potent fact which does not exist in the Hanks Case is that in the instant case two deeds appear in the record out of the original grantee, under the first one of which appellant claims. In the Hanks Cáse there was only one deed out of the original grantee. In the instant case the probability of forgery of the second deed is fortified with the presumption, which the court always indulges, that people are usually honest, and that a grantor, having already disposed' of his title, would, not defraud nor attempt to defraud the purchaser by the execution of a second deed to the same land. In the Hanks Case there were no circumstances casting suspicion on the deed out of the original grantor by reason of a variance in the signature in the notary’s certificate of the acknowledgment, as was shown in the two registrations of the second deed in the instant case. While a good portion of the facts and circumstances in the two cases are similar, still the matters of difference herein-above set out are sufficient to manifest a marked contrast in the weight and force of the evidence supporting the issue of forgery.
We are also asked to point out the tes-1 timony which, in our judgment, raised the issue of limitation, which should have been submitted to the jury, and in compliance with that request we have again examined more carefully this subject. In a review of the evidence on this issue it may be well to incidentally note, as we proceed, in the compliance with the request aforesaid, to state some of the principles applicable to the facts in the instant case, as we understand them, underlying the acquisitions of land by a claim of adverse possession.
[22] The burden of proving adverse possession is in all cases upon the one who sets it up, and who claims under it. He must show every element necessary to perfection of such title. Cunningham v. Frandtzen, 26 Tex. 35 ; Whitehead v. Foley, 26 Tex. 289 ; Smith v. Power, 23 Tex. 30 ; Mitchell v. Burdett, 22 Tex. 633 ; Sterrett v. Middleegg, 44 Tex. 536 ; Williamson v. Simpson, 16 Tex. 445 ; Dunn v. Taylor, 102 Tex. 80 , 113 S. W. 265 ; White v. Eavenson, 46 Tex. Civ. App. 158 , 101 S. W. 1029 ; Rhodes v. Whitehead, 27 Tex. 304 , 84 Am. Dec. 631 .
[23] The evidence establishing adverse possession ought not to be vague and uncertain. Taylor v. Doom, 43 Tex. Civ. App. 59 , 95 S. W. 4 .
An examination of the record in the instant ease discloses the execution of several tenancy contracts between the Houston Oil Company and its predecessors in title with various persons, under which tenancy contracts appellee is now asserting title by limitation. We may say at the outset that there is no such conclusive evidence in the record as would show a privity of possession and continuity of claim under and by virtue of any of the lease contracts executed prior to the Coekerham lease as would justify a peremptory instruction to the jury to find for the appellee on the issue of limitation. The appellee urges upon us with great force and learning that it has perfected title to the land in controversy by virtue of the five-year statute of limitations, under a lease executed by it with I-I. J. Coekerham and wife, of date June 6, 1906, and, as we shall have occasion to further consider this instrument, we set it out in full:
“The State of Texas, County of Hardin.
“Know all men by these presents that we, H. J. Coekerham and M. A. Coekerham, wife of the said H. J. Coekerham, of the county of Hardin, state aforesaid, in consideration that the Houston Oil Company of Texas, a corporation duly incorporated and existing under and by virtue of the laws of the state of Texas, with its principal office in the city of Houston, Harris county, Tex., now owning in fee simple the following described tract or parcel of land, to wit: All of the D. C. Montgomery league of land lying and being situated in Hardin county, Tex.— and is desirous of placing a tenant upon said land for the purpose of protecting the same and having it guarded against trespassers and preventing any and all persons from cutting and removing the timber now situated, standing, and growing thereupon, and for and in consideration that we are to use and enjoy until the 1st day of January, A. D. 1931, the improvements situated *799 thereon for farming use only, free of charge or rental, we, H. J. Cockerham and M. A. Cocker-ham, husband and wife as aforesaid, do hereby acknowledge our tenancy under the above-named company and obligate and bind ourselves to use said land for farming purposes only until the 1st day of January, 1931, and that we will not cut nor destroy any timber thereupon, and as agents and tenants as aforesaid will prevent any and all trespasses from others, of whatsoever nature, upon said land and timber, and at the expiration of the above-specified time, to wit, January 1, 1931, we will vacate, deliver up, and turn over the above-described premises unto the said company, their successors or assigns, in as good and perfect condition as they are now, free from all charges, costs, expenses, or delay to it, the said company, whatsoever.
“In testimony whereof we hereunto set our hands this 6th day of June, A. D. 1906.
“[Signed] H. J. Cockerham her
“M. A. X Cockerham.
“Duly acknowledged by H. J. Cockerham and his wife, M. A. Cockerham, before J. E. Crawford, notary public Hardin county, Tex., on June 6, 1906. , , ,
, , , “Filed for record June 9, 1906, at 11 o clock a. m., and duly recorded June 26, 1906. at 11 o’clock a. m. in Deed Records of Hardin County, Tex., at Book Vol. 40, on pages 166 and 157, by F. W. Tebbs, clerk of the county court of said Hardin county, Tex.”
The five-year statute of limitations prescribes the following requisites: (1) Peaceable and adverse possession; (2) cultivation, use, and enjoyment of the land in controversy ; (3) the payment of taxes thereon; (4) the claim to the land must be under a deed or deeds duly registered; (5) this statute does not apply to any one in possession of land who, in the absence of the article, would deraign possession of title through a forged deed, or to one claiming under a forged deed. R. S. art. 5674.
The decisions and text-books are unanimous in declaring that in determining what constitutes adverse possession that such possession must be: First, actual; second, visible; third, exclusive; fourth, hostile; and, fifth, it must be continued under a claim of right during the time necessary to create the bar. 1 Cyc. 983 et seq.; Portis v. Hill, 3 Tex. 273 ; Mhoon v. Cain, 77 Tex. 316 , 14 S. W. 24 ; Michie’s Digest, vol. 11, p. 907, for collation of all of the Texas authorities.
The testimony shows that Cockerham had an actual possession of a small portion of the land in controversy, so we will proceed to consider whether his holding was in compliance with the other requisites of “adverse possession,” and we inquire, therefore, into the “visible” feature of his possession.
[24, 25] “Adverse possession” must be open and notorious possession. In order to make a good claim by adverse holding, the true owner must have actual knowledge of the hostile claim, or the possession must be so open, visible, and notorious as to raise the presumption of notice to the world that the rights of the true owner are invaded intentionally, and with the purpose to assert claim of title adversely to him, so patent that the owner could not be deceived in the exercise of ordinary prudence over the true situation. The general rule dedueible from the various authorities and text-books on the subject is that in determining whether possession is open, visible, and notorious, so as to charge the owner with notice of an adverse claim, the nature, situation, and use of the property are to be considered, as well as the'quantity or proportion of the land actually occupied.
It is therefore difficult or impossible to specify the acts which would under any and all circumstances and conditions constitute open and visible possession. The author--ities seem generally to hold that it is sufficient if the land is appropriated in such a manner as to apprise the community that it is in the possession and enjoyment of the party claiming it. And that openness and exclusiveness are shown by such acts will ordinarily be presumed by the owner in appropriating the land, and its avails to his own use, and preventing, so far as practicable, all others from using it. 1 Cyc. 999; Texas, etc., Ry. Co. v. Maynard, 51 S. W; 255; McCarty v. Johnson, 20 Tex. Civ. App. 184 , 49 S. W. 1098 ; Chance v. Branch, 58 Tex. 490 ; Whitehead v. Foley, 28 Tex. 268 ; Holland v. Nance, 102 Tex. 177 , 114 S. W. 346 ; Richards v. Smith, 67 Tex. 610 , 4 S. W. 571 ; Bracken v. Jones, 63 Tex. 184 ; Mhoon v. Cain, 77 Tex. 316 , 14 S. W. 24 ; Craver v. Ragon, 110 S. W. 489 ; Satterwhite v. Rosser, 61 Tex. 166 -170; Fuentes v. McDonald, 85 Tex. 132 , 20 S. W. 43 ; Nona Mills Co. v. Wright, 101 Tex. 14 , 102 S. W. 11188 .
Keeping in mind these rules, let us turn now to the testimony of Cockerham, who was in possession of the land under the above lease, holding for the appellees:
“I lived in Hardin county on the D. C. Montgomery league, an the east part of it. I have lived there something over twelve years. Now, there has been introduced in evidence a lease' of mine from Houston Oil Company of Texas, dated 6th of June, 1906. I made that lease. 1 was living on the land at the time. When I made that lease I was living on the land at the time. I had been living there, and that has been my home and the home of my family. During that time and since the time I leased the land I have been living' right there on that same piece of land all the time. * * * I have been cultivating some of the land. I cleared up about six acres of it and have it in cultivation. I have cultivated it every year, and am still living on it. I am cultivating some land this year. * * * You ask me what I have got there in the way of a house, improvements, and so, and I say that I have a very good double house, one hewed log house, and the other weather-boarded ; made my own boards for it. I have got the following houses; I have got a smokehouse, henhouse, stable, crib, and cow shed. * * * I leased it for twenty-five years. I had been there going on three years before I signed that lease. * * * This arrangement I made with the Houston Oil Company was the first arrangement I made just a little while before I signed the lease was the first arrangement I made with anybody. I had not been bolding it for anybody before that at all, only j. aimed to hold it for myself. The way I got to be on it *800 myself was I thought it was lost land, and I found it. I thought it was lost land. I thought I would try to get me a home on it, like the rest of them was trying to do. A whole lot of them does get homes that way. Well, it is going on three years that I had been there when I signed this lease — between two and three years.”
On cross-examination he said.:
“The improvements that I have got there now were not there at the time. All there now I put there. There was nothing but the briars, sweet gum poles, around it. As to whether it is a fact I was living down there first, well, I was fishing and hunting. That is what I was there for. I went there to make me a home, and didn’t have but little means, and I had to do something to get me something to eat. Ever since that time hunting and fishing has been my occupation; not altogether-, because I have been cultivating this land, trying to make me a living out of that, because I was starving to death. That is not the same house that I had when Mr. McClelland came there, I built a house since. I built the first house there when I first moved on it; nothing tout an old pine pole pen, you might say; one of these 16x18 sheets put over it, wagon sheet, one of those uprights that goes over those big tents, built up to the wall and strapped over to it, the pine poles. That is the way I was living when I signed that lease. It was about a year after I signed that lease before I built my addition to 'that. Yes, sir; about a year after I signed the lease. You ask me to try and get accurately just when it was, and I say it was not over a year, I think. I think I commenced it just about a year, because I commenced the next spring hewing my logs. The springtime I cut the logs and let them dry so I could handle them. I got out my logs and let them dry out in the next spring or summer. A little over a year after I signed the lease, and before the winter came, I commenced constructing my house. I got it finished before Christmas some time in November I moved in. * * * Ño; I built my house along in November, a year from the time I signed the contract, and that would be in November, 1907. * * * I will now describe to the jury how big a house that is. It is about 14x16 feet just one room 1 built at that time. * * * I done nothing out of doors only to try -to clear a little land along at spare times, I done that in the following year. The year after I finished my house I cleared some land, cleared some more land. •I had just' a garden spot about one acre at that time, befox-e I commenced clearing additional land. You ask me how much is an acre, and I say that they tell me it is 70 yards square. Now as to whether I tell the jury that I had 70 yards, well, I tell them it was not exactly in a square, because I had built it of poles, and it was in a eix-cle. Of that inclosure I was cultivating all of it inside the garden; me and my woman was eating the vegetables. Mr. Dies sent me some garden seed, and they made pretty good stuff. I did not eat it up one Sunday for dinner. We did not eat it, it took us two or three Sundays. I did not have anything but that pole tent until I built my hewed log house in the fall of 1907. That’s ali I had outside of my stable for my pony. That is not the same stable I had when I first went there nor the one I got now. You say that you are trying to find out what I had there when I built that hewed log house, and I say just that old house we were living in and the stable for my pony, and this pole garden is all I had.. I was making my, living hunting and fishing, and then it was over a year after I built my hewed log cabin or house. I extended my inclosure for my garden or field. Yes, sir; about two years, after that, something like two years, and I extended my inclosure and took in a little more land. You say that would be then along in the fall of 1909 or 1910, and ask me if that is about right, and I say about 1908. I think it is, I got all the land cleared. When I cleared my garden spot about the house, I added a little bit to it every year until I got about 2 acres. This way I did not make much addition to my garden for two years after I built my house, and I say something like 2 acres; yes, sir. As I extended my inclosure I did not build it up with poles, I built it with pickets. I have a good picket fence there now. I put my picket fence up two years after I put up the first house, and, as I say, I kept adding a little more to it making it bigger. During that time my principal was fishing and hunting. I simply had a garden there as an incident That was just an incident of my profession of hunting and fishing. That is just what it was for. I made my living there. I couldn’t eat fish without some vegetables, not much without some bread. I did not sell much vegetables for a right smart while. The first vegetables I sold was in 1909. I sold to Mr. Dick Griffin at Collier’s store. You ask me how many dollars worth that was, and I say a small patch of onions the first year made $22 and something. The next year it made $31 and something, and the last year it was $86.50. This year I haven’t got through with them; I don’t know what I will get out of it. It was the last three years crops I spoke of that I sold. You ask me what I would say was the value of the improvements there, and I say to get right down to the value it is mighty hard to get at it. To go to the woods and cut and wood and get the land in cultivation if it was mine and I had a deed to it, $1,000 would not move it. I cannot tell you neither what it cost me to build the house, because I done it piecemeal, hour or two at a time. The most of my enlargements of my patch has not been in the last three years. It has been from the time I first built my picket fence, and each year I added to it. You say I did not build my picket fence for two years after I built my house, and I say I added to it each year since that time. If I built my house in the fall of 1907, two years after that would be the fall of 1909, that I first commenced to enlarge my garden, asi near as I can recollect. You say that I never did mai-ket any of that stuff until the last three years, when I commenced that onion business, and I say that onion business is about all I sold except a sack or two of sweet potatoes. You ask me if I had anything to do with the balance of that league of land except that, and I say why my lease calls for all of it. I used no part of that land except that I got about 3 acres about a quarter of a mile below that on the same league of land south. It is a quarter of a mile south. * * * I got that 8 acres four years. I made four crops on it. It was not some old field that was down there. It was a gum sapling and briar thicket. The pine timber was dead; no merchantable timber on it. I went down there about four years ago and made four crops on it. That does not include this year’s crop.’ Done already made four crops on it. I raised corn, pumpkins, and peas down there, and I fed that to my pony and ducks. I sold a few pumpkins; I sold about 40 pumpkins. The sort of fence that I have got around it is part picket and part of it is this new fence 8 feet long. * * * Now at the time I went there it is a fact that Mr. Mattingly was on this side of where I was living near the Massey Lake. He lived there. He lived there at the timo I signed that paper for the Houston Oil Company. He had been living there over two years before that' — about two years. He continued to live there as long as I lived there. If he was there as a tenant of the Houston Oil Company I never heard of it. I knew he was claiming contrary to them. He told me. Said he was getting $5 a month *801 to stay there, and he asked me what the company was giving me, and I told him nothing. * * * what I mean to say when I say I got about 6 acres down there is what I got at the house and what I got down there in that little field; that is what I mean, altogether about 6 acres. I measured the little field there pretty close and found it a fraction over 3 acres. I have measured that at the house, just a rough sketch. It runs from over 2% acres there now, I think; it is right close to 6 acres, the whole thing. You ask me did I not have over about an acre when they got me to sign that lease, and I say I did not have anything hardly only this little old pole fence, and down until about a year and a half after I built my house. * * * You- ask me the question I never used any part of that league of land or anything to do with it except those two pieces, and did I make any other use of it except to live there on it, and I say for my own benefit I did not I kept people from stealing the timber. Now, as to who it was as was trying to steal the timber, well there was a whole lot of timber there, and they knew I was there, and they would not steal it. Now, as to whether I ever went to anybody and said, ‘Here, you must not cut the timber on this land,’ well, I went close enough to see that it was going on other tracts of land, and I did not bother them. As to whether I never said a word to anybody about cutting timber on this land, well, it was none of my business. That was all the tract of land I had to watch over. I did not make any use of this land except such as I have described about the house where I lived, and the patch away over there. That is all the use I put the land to in any way, I hunted a whole lot and killed some deer on it, and caught some fish out of the river. Outside of hunting deer and catching fish, I did not have any other use of that land only what I got in cultivation and getting wood or something like that. I know about the Village Mills cutting some timber on the land. I did not go to them and stop them. I went over there to see about it. I heard they were cutting, and I went oyer there to see about it, and was going to make a report to Mr. Mc-Clelland the next day, and I met him on the train, but I never said anything about it. I did not say anything to Mr. Hooks. Now, as to whether I knew the Village Mills Company had built a house on that land and had got a man living on it, well, I never saw it. I heard they had afterwards. I reckon it is right close to two years that it has been there. * * * If I ever reported a man for cutting on the east end of the league, I do not know it. If anybody was cutting there, if I catched them and knowed who they were, I would have reported it.”
This is a suit for a league of land, 4,428 acres. This court will take judicial notice of the common fact that the location of this league is in the wooded and forested section of Southeast Texas. An analysis of the evidence shows that the tenant, Cockerham, was a man of little means, really in want, and that he went on this league of land to make a home and do something to get something to eat; that he went there for the purpose of hunting and fishing, and incidentally raised what vegetables he could to fill in. The first house he built on the land he described as “a pine pole pen, you might say; one of those 16x18 sheets put over it, a wagon sheet, one of those uprights that goes over those big tents.” A year or so after signing the lease — that is, in the fall of 1907 —he built his present house, and thereafter erected from, time to time the other improvements now found on the land. He did nothing in the way of clearing the land until a year or two after he finished the house. He finally at odd times, two years or more after he had built this house, cleared up as much as 3 acres adjacent to the house, and some time thereafter, which time- is not specifically stated, he cleared another piece of about 3 acres, a fourth of a mile distant, thus making all told about 6 acres in actual occupation and cultivation at the timé of the trial of. this suit During all the time he has resided on the land his principal occupation has .been hunting and fishing. In the last three years he raised onion crops and marketed an amount equal to $119.50. There were other adverse claimants on the land, whom he knew and whom he did not in any manner molest, nor, so far as the record shows, report to his lessor. He never at any time made any use of the balance of the land, except hunting and in using what wood he needed. We are not of the opinion, as was the trial court, that this evidence, as a matter of law, established such visible and notorious possession of the entire league as to raise the presumption of notice to the world that the rights of the true owner were invaded intentionally and with the purpose to assert a claim of title adverse to his, nor are we prepared to say that such evidence, as a matter of law, is such a visible appropriation, use, and enjoyment of the land as contemplated by the statute.
[26] A claim under the five-year statute requires color of title, but not in the sense as contemplated under the three-year statute of limitation, and as defined in article 5673, Vernon’s Sayles’ Civil Statutes. Under the five-year statute it is not necessary that the grantor should have had title to the land in order that the deed given by him may convey color of title. Harris v. Wells, 85 Tex. 312 , 20 S. W. 68 ; McDonough v. Jefferson County, 79 Tex. 539 , 15 S. W. 490 ; Hunton v. Nichols, 55 Tex. 218 -230.
[27] The general rule is that, where one enters under color of title into the actual occupancy of a part of the premises described in the instrument giving color of title, his possession is not considered as confined to that part of the premises in his actual occupancy, but he acquires possession of all of the land embraced in the instrument under which he claims. Porter v. Miller, 84 Tex. 204 , 19 S. W. 467 ; Taliaferro v. Butler, 77 Tex. 578 , 14 S. W. 191 ; Porter v. Miller, 76 Tex. 593 , 13 S. W. 555 , 14 S. W. 334 ; Evitts v. Roth, 61 Tex. 81 ; Cantagrel v. Von Lupin, 58 Tex. 570 ; Texas Land Co. v. Williams, 51 Tex. 51 . The reason for the rule is that one in possession, claiming by metes and bounds under a paper title, and openly and notoriously exercising control and dominion over the land described therein, is presumed to be doing so to the extent of his claim. 1 Cyc. 1126.
*802 [28] So it is to be seen that under the general' rule, and more particularly under the Texas statute of five years (R. S. 5674), which specifically requires “cultivation, use or enjoyment of the land,” there must be evidence of an open and notorious exercise or control or dominion over all of the land in controversy before the benefits of constructive possession under color of title will avail the claimant so as to perfect limitation under that statute. Mere constructive possession of the land to the limits of the bounds described in the instrument-constituting color of title is not sufficient. The adverse nature of the possession and other requisites of the statute must be complied with.
The evidence of Coekerham hereinabove set out does not show, as a matter of law, that he was exercising that control and dominion over the land outside of the boundaries of the 6 acres actually in his possession which conclusively indicates an open, visible, and hostile claim to the entire league; nor was the trial court warranted in assuming as a matter of law that the evidence of Cocker-ham showed he had made such appropriation of the land, considering its nature and kind, in the matter of his use and enjoyment of it, and utilizing of its avails, as might be expected of a true owner, and which would indicate and bring home to the true owner notice of a purpose and intention on the part of the claimant to hold all of the league adversely. To say the most for it, this evidence could only raise an issue for the jury as to whether or not the acts stated were sufficient to show an adverse claim, and were of such a nature as to put the true owner on notice thereof. Word v. Drouthett, 44 Tex. 370 .
[29] There is another serious question in this cause which affects the construction of said lease, and which we have re-examined on our own motion since writing the original opinion. It is earnestly urged that the lease under consideration is restrictive in character, and in support of this contention ap-pellees rely upon the following case: Houston Oil Co. v. Kimball, 114 S. W. 666 , affirmed by the Supreme Court 'in 103 Tex. 94 , 122 S. W. 533 , 124 S. W. 85 . In the Kimball Case it appears that in 1883 John T. Lewis and R. R. Hester were squatters on small pieces of the league. In 1SS3 Lewis signed a lease in favor of Irvine the owner which reads as follows:
“For and in consideration rent free of the house, fields, and improvements then occupied by him, and in consideration of the right to use timber for firewood and to make repairs, he acknowledged himself the tenant of Irvine, and agreed as such tenant to occupy and hold possession of such league of land.”
In the instant case, the lease reads:
“For and in consideration that we are to use and occupy until January 1, 1931, the improvements situated thereon for farm use only, free of charge of rental, * * * do acknowledge our tenancy * * * and oblig-ate and bind ourselves to use said land for farming purposes only, * * * and that we will not cut nor destroy any timber thereon, and will prevent trespassers,” etc.
Both leases are similar in. the following respects: (1) Both the lessees were squatters on the land before the execution of said leases; (2) both of the tenants' were to use and occupy the improvements rent free; (3) both acknowledged tenancy to the alleged owner and agreed to occupy and hold the possession of the entire league; (4) in the first lease no restrictions were placed upon the nature of the use of the improvements, while in the instant case the land could be used “for farming purposes only*’; (5) in the first lease the lessee was granted the right to use the timber for firewood and to make repairs, while in the instant case such privilege was not extended to the lessee, unless it be included within the meaning of the term “farming purposes only,” and that such privilege is included within the meaning of that term, we have serious doubts.
It is therefore to be seen that upon a careful analysis of the two leases in question the one under consideration in the instant case appears to be more restrictive in its nature than the one which the court was considering in the Kimball Case. Under the most liberal view of the language of the lease in the instant case, Coekerham was not permitted to cut or destroy any timber on the lease for. any purpose, and his use of the land was restricted to “farming purposes.”
Here is a situation where we are presented with a claim to 4,42S acres, with actual occupancy of only 6 acres, with the use of the entire league, under the tenancy contract, restricted to farming purposes only, in a densely wooded country, with a positive prohibition as to cutting or destroying any timber for any purpose. The logical effect of these restrictions is to absolutely limit the tenant to the use and enjoyment of the 6 acres, for no other part of the land in its natural state, in so far as the record shows1, could be utilized generally for farming purposes. Speaking of such restrictive leases in the Kimball Case, 114 S. W. 668 , the court said:
“The leases were of restricted parcels. The use essential to title under the statute was restricted to these parcels by the provision in some of the instruments to the effect that the tenant agreed to occupy and hold possession of the league; it was manifestly not intended to lease the whole. Besides, in no instance was there any evidence that any of these tenants ever extended his possession beyond the parcel he was ocupying with bis houses, field, or improvements. In the case of Read v. Allen, 63 Tex. 157 , it appears that the trial court charged the jury: ‘Where one holding a deed to land described by metes and bounds leases a part of said land to a tenant by specific metes and bounds, then the possession of said tenant is only coextensive with the bounds specified in the lease, and not the whole tract.’ Speaking_ of the correctness of this charge, the court said: We understand this to be a correct rule. We cannot perceive upon what ground a landlord who by a lease has restricted the possession and use of his tenant by metes and bounds to a part of a larg *803 er tract can claim tliat his tenant’s possession under such lease extends to that which by the terms of the lease the tenant has no right to possess.’ ”
A more careful examination of the authorities and evidence in this case leads us to the conclusion that this lease is restrictive in its nature, and falls within the rule announced in the Kimball Case, and therefore cannot be made the basis upon which to extend constructive possession to the entire league.
We do not consider that our decision in the instant case is in conflict with the case of Frazier v. Houston Oil Co., 161 S. W. 20 . In the Frazier Case, it was admitted that the legal title to all of the land in controversy was in the Houston Oil 'Company, and that appellant could only recover, if at all, under the ten-year statute of limitation. The claimant was a naked trespasser, having actual possession of only 12 acres of land, including his improvements, and had no color of title upon which to base constructive possession to 160 acres of land. The admitted owner of the land, the Houston Oil Company, was in actual possession, through a tenant, claiming and holding under a lease contract therein set out.
[30, 31] Now, the law is well settled that the true owner of land has constructive possession and seisin of all the land to which he has title, if there be no other person in possession. If, however, there be some other person in possession of a part, under color of title, giving boundaries, such possession, if adverse in its nature, though the posses-, sor enters and holds under inferior title, will create a disseisin of the holder of the superior title to the extent of the boundaries contained in the inferior title, unless the holder of the superior title is in actual possession of some part of the land covered by his title.
[32] If the possessor be without deed or other written memorandum defining the possession — that is, if the claimant be a mere naked trespasser — limitation will be confined to the extent of the actual inclosure. Craig v. Cartwright, 65 Tex. 413 . In the ease of Evitts v. Roth, 61 Tex. 84 , the Supreme Court, discussing this subject, said:
“In Hunnieutt v. Peyton, 102 U. S. 333 [ 26 L. Ed. 113 ], it was held that, where a party enters upon unoccupied land under color of title, and holds the same adversely, his holding will extend to the land included within the boundaries defined by his deed, and to that extent the real owner is disseized. But, if the real owner is on any part of the land, his constructive seisin extends to all of the land not in fact occupied by the other.”
In the case referred to above, Hunnicutt v. Peyton, 102 U. S. 36S, 26 L. Ed. 121 , the court, speaking through Justice Strong, says:
“If the true owner be at the same time in actual possession of part of the land, claiming title to the whole, the constructive possession is in him of all the land not in the actual possession of the intruder, and this though the owner’s actual possession is not within the limits of the defective title. ‘The reason is plain. Both parties cannot be seised at the same time of the same land under different titles. The law therefore adjudges the seisin of all that is not in the actual occupancy of the adverse party to him who has the bette'r title.’ These distinctions are clearly shown in the cases cited from [Clarke v. Courtney] 5 Pet. [319, 8 L. Ed. 140 ], supra.”
See, also, the case of Whitehead v. Foley, 28 Tex. 289 .
The lease under investigation in the Frazier Case was not being considered as the basis of a limitation title to the land in controversy, but simply as a civcumstan&e to show actual possession of a part of the land through a tenant who agreed to hold possession of the whole, so as to limit the recovery of the naked trespasser under the rules above stated to his actual inclosure. Quite another and different set of rules are applicable to such leases when they are made the basis of an adverse claim to land, and what is said in the Frazier Case about the language used in the lease, not having the effect of limiting the possession and use to the improvements, must be viewed in the light of this distinction, and limited to the facts to which it was intended to apply.
We are unable to harmonize our views of the lease contract in question and the conclusions of adverse possession thereunder with the principle announced in the case of Hanks v. Houston Oil Co., 173 S. W. 635 , and therefore this opinion is in conflict therewith. In the Hanks Case, the appellant sued the Houston Oil Company in trespass to try title for the A. W. Smith league of land in Hardin county. Defendant pleaded not guilty and the three, five, and ten year statutes of limitation. In answer to the plea of limitation the plaintiff pleaded by supplemental petition that the defendant, in the absence of the five-year statute, would de-raign title through a forged deed, to wit, through and under a purported deed from A, W. Smith to John R. Stevens, which deed plaintiff alleged was forged. Upon the close of the evidence the court instructed a verdict for the defendants, without indicating upon what particular issue the instruction was based. Upon consideration of the cause in the appellate court that court found that the evidence attacking the deed in question as a forgery was not sufficient to establish that issue, and therefore, as a logical result of this holding, the title was placed in the Houston Oil Company to the land in controversy, and it was the true owner thereof. In addition to this holding, the court also found that appellee had perfected title to said land under the five-year statute of limitation, and upon that issue discussed a lease contract which was the counterpart of the one under investigation in the instant case, saying:
“We think that, under the foregoing undisputed facts, every element essential to a title under the five-year statute was proved. Here we have the assertion' of a claim under a duly registered deed, and actual adverse possession *804 with cultivation, use, and enjoyment of a part by a tenant which drew to it the constructive possession of the claimant to the whole, and the payment of all taxes concurrently with such actual possession; the whole covering a period of full five years. It is our opinion, therefore, that upon the theory that appellee had title under the five-year statute of limitation, the court did not err in instructing a verdict for ap-pellee.”
As we have heretofore stated, we do not understand the five-year statute of limitation to mature title, where the occupant, even though claiming under color of title, is in actual adverse possession of a part of the land, through a tenant, with cultivation, use, and enjoyment of a part only of such land. The only effect of color of title, in so far as the statute of limitations is concerned, is to fix the character of the occupant’s possession and to define its extent and limits. Two of the requisites of the statute are that the claimant must have peaceable and adverse possession of the land and cultivation and use or enjoyment of the same. There must be adverse possession and claim to the whole. Actual possession of part of the land under color of title, with adverse claim to the part in actual possession only, will not draw to it constructive possession of the balance. The claim to the land and the adverse holding thereof must be coextensive with the boundaries of the conveyance. 1 Cyc. 1134; Rope v. Riggs, 43 S. W. 306 .
[33] There must also be an open, notorious exercise of dominion and control over all of the .land to constructively extend the limits of actual possession of a part of the land to the boundaries included under the color of title. Mere possession alone, either actual or constructive, will never mature a limitation title. In order to perfect title by adverse holding, the law contemplates that the true owner must have had actual knowledge of the hostile claim, or the possession must have been so open, visible, and notorious and the dominion exercised over the land of such a character as to raise the presumption of notice to the world that the rights of the true owner are invaded intentionally and with a purpose to assert a claim of title adversely to his. It is not the purpose of limitation statutes to give title to land through a trick or artifice, or through a secret mental process working between the minds of a tenant and one claiming land under color of title, but rather does it seek to assist the one who comes out in the clear light of day and asserts by his acts such dominion over all of the land he claims, although he may have but a small part of it in actual possession, that he who looks may know the hostile purpose and intent upon his part to hold it against the true owner.
There being a conflict between this opinion and the opinion of the Court of Civil Appeals in the case of Powell v. Heckerman, 6 Tex. Civ. App. 304 , 25 S. W. 166 , on the question. of a judgment against a prior vendor involving the title to real estate being available by a subsequent vendee as res ad judi-cata in another action in which he is being sued for the same land, and also a conflict between the opinion in this case and the opinion of the Court of Civil Appeals on the question of the restrictive character of the lease contract under investigation, and the perfection of limitation title thereto by reason of the application of the five-year statute, as announced in the I-Ianks Case, supra, this cause, upon the questions here stated, will be certified to the Supreme Court for final adjudication.