The opinion
Appellees’ Motion for Rehearing.
In passing upon the motions for rehearing filed in this case, we deemed it unnecessary to discuss appellees’ motion, but have since concluded, for reasons satisfactory to us, to briefly discuss the contentions made in such motion.
[44] The first contention is that no error was committed by the lower court in rendering a general judgment that plaintiffs take nothing by their suit. Appellees admit that plaintiffs proved they were jointly the owners of an interest in the land sued for, but say that because it developed on the trial that some of the defendants were cotenants with plaintiffs and that plaintiffs had not been actually ousted, therefore plaintiffs should recover nothing. This court took the view that plaintiffs should recover the interests in the land to which they proved title, and should not recover as to the interests owned by defendants, and also the interests owned by other cotenants not parties to the suit; and we are still of the opinion that we were correct in so holding. Plaintiffs sued for the entire tract of land, and defendants answered with plea of not guilty, statutes of limitation of three, five, and ten years, and filed a cross-action alleging that plaintiffs’ claim cast a cloud upon defendants’ title, which they prayed should be removed. Each side required the other to' file an abstract of title. Upon the trial it developed that plaintiffs were entitled to recover the land unless a grant of two-thirds of the tract (undivided) was established to have been made by their ancestor. The court so stated in his charge, but did not instruct a verdict for plaintiffs for the part to which they established title, but submitted the issues with respect to the conveyance of two-thirds by the plaintiffs’ ancestor, with instructions that, if they found such grant to exist, then to find for defendants. The jury returned a general verdict in favor of defendants, upon which the court entered a judgment that plaintiffs take nothing by their suit, and that defendants recover all costs.
Appellees contend that such judgment was correct, and rely upon the case of Allen v. Long, 80 Tex. 261 , 16 S. W. 43 , 26 Am. St. Rep. 735 , opinion by Judge Marr, in which a similar judgment was upheld; but in that case it appears that the plaintiff was seeking to recover the land as assignee of a joint-stock company, which it was claimed owned the title held by a former joint-stock company. The defendant, after filing general denial and plea of not guilty, filed a cross-bill claiming that he was a stockholder in the first company, and as such was holding the land for himself and the other stockholders of said first company. It was held that the second company, of which plaintiff was the assignee, had acquired no title, and, if plaintiff had any title at all (which it did not decide), it was merely such as he acquired from such of the stockholders of the old company as had consented to the conveyance of the land by the new company; and, if so, then the parties to the suit would be tenants in common, and plaintiff could not maintain the suit under the facts of the cáse. The court said in part: “The court below does not assign its reasons for deciding that the plaintiff could not maintain the *340 suit against defendant as a eotenant; but this was evidently because the court did not regard the claim or possession of the defendant as adverse to the original association, or any one claiming under it, no.r as amounting to an ouster of the old association or of its stockholders, or of the plaintiff, if he can be regarded as claiming any interest in the land under the original association or any of its members. We have seen that the court was justified by the record in these conclusions. While one tenant in common may sue another in case of actual ouster, he cannot when the possession of his cotenant is not adverse to his own interest nor to the title under which they must both claim, if at all. To authorize the suit for recovery of possession (not partition), the ouster and adverse holding must be of such character as would put the statute of limitation in motion. Portis v. Hill, 3 Tex. 273 ; Alexander v. Kennedy, 19 Tex. 493 [ 70 Am. Dec. 358 ].”
It will be noted that the above holding was not considered necessary to the decision of the case, also that it does not appear that there was any basis to render judgment for plaintiff establishing his interest in the land, because, even if it had been held that he owned the interests of those agreeing to the sale by the new company, it does not appear what the extent of such interest would be. It will also be noted that the court felt impelled in affirming the case to do so without prejudice to plaintiffs’ rights, which he had acquired from stockholders of the old company by reason of the conveyance by the new company, under which he claimed. We regard the case of St. L., A. & T. Ry. Co. v. Prather, 75 Tex. 54 , 12 S. W. 969 , opinion by Justice Gaines, as conclusive authority against appellees’ contention. In that case a cotenant sued in trespass to try title to recover an undivided one-half interest in certain lots. The defendant pleaded not guilty and the statute of limitations. The trial court held that plaintiffs were the owners of the half interest sued for, but could not recover in an action of trespass to try title. It was held that they could recover; and, after citing our statute relating to plea of not guilty, the court said: “The defendant’s pleas clearly show that it recognized no right of common ownership in the premises sued for. We think, therefore, that for the purposes of the action, they should be deemed, under the statute, equivalent to an ouster. Hence we conclude that plaintiffs were entitled, upon proof of their ownership of one-half of the lots, to a judgment admitting to possession of the property with defendant, and that it was not competent for the court to decree a partition. If the defendant desired a partition, it should have pleaded the facts and asked a judgment accordingly.” The only difference between that case and this lies in the fact that in this case plaintiffs sued for the entire tract, and that defendants, in addition to the pleading as made in said case, also filed a cross-action praying for removal of cloud upon their title to the land. Appellees say that because plaintiffs sued persons found by the court to be their cotenants, and claimed all the land, they must prove title to all or they cannot recover. This contention is not maintainable under our statutes relating to trespass to try title, which contemplate that all suits to determine title to land may be brought under the provisions of such statutes, of which articles 7753 and 7754 (Statutes of 1911) read as follows:
“Art. 7753. Where the defendant claims the whole premises, and the plaintiff shows himself entitled to recover part, the plaintiff shall recover such part and costs.
“Art. 7754. When there are two or more plaintiffs or defendants, any one or more of the plaintiffs may recover against one or more of the defendants the premises, or any part thereof, or any interest therein, or damages, according to the rights of the parties.”
In the ease of Ballard v. Carmichael, 83 Tex. 366 , 18 S. W. 738 , Justice Gaines said: “There was no error in refusing to enter a judgment for a partition. Neither party specially prayed for that relief; and the plaintiffs were entitled to a judgment of recovery for such interest in the land as they established by their evidence, and for a writ of execution commanding the sheriff to place them in possession with the defendant, their cotenant. The judgment, as here rendered, will be made to conform to this view. If defendants had disclaimed as to the interest in the land to which they were not entitled, they should have recovered their costs. But having defended as to the whole, and plaintiffs have recovered an undivided interest, the costs were properly adjudged in favor of the latter.” See, also, King v. Bock, 80 Tex. 156 , 15 S. W. 804 , and Anderson v. Anderson, 95 Tex. 367 , 67 S. W. 404 .
In the case of Hess v. Webb, 113 S. W. 618 , affirmed by the Supreme Court in 103 Tex. 46 , 123 S. W. 111 , it was held that tenants in common, suing for eight-ninths of a tract of land, could not recover such eight-ninths because some interests included therein were owned by cotenants not shown to have died without issue, and not parties to the suit, and the defendant, a cotenant, had as much right to hold possession of such interests as plaintiffs. But the court held that plaintiffs were entitled to recover the interests to which they were shown to be entitled. The Supreme Court affirmed the case, and, through Chief Justice Gaines, stated that one tenant in common may sue another to establish his interest in land, and may recover a judgment for his admission into joint possession, or he may sue for partition, in which event all the tenants in common must be parties.
In the case of Cain v. Hopkins, 141 S. W. *341 836, this court (opinion by the late Chief Justice James) said: “We recognize the principle of law that one tenant in common, suing another who appears to be also a tenant in common of land, can recover judgment against the defendant only for the undivided interest he shows he has in the land. But that principle'has no application when defendant is a naked trespasser.” Ap-pellees would change the rule so clearly stated by Chief Justice James so as to add a proviso to the effect that a tenant in common can, however, only recover the interest to which he may show himself entitled, provided he sues for that specific interest and no more. We think it is clear that, under our statutes, plaintiffs should have had judgment for the interest in the land owned by them, and protecting them in their right to possession with defendants. Appellees say that the judgment entered below does not have the effect of depriving plaintiffs of their land, for the reason that, if such judgment was offered in support of a plea of res adjudicata, evidence could be offered to show that defendants did not prove title to same. We consider it unnecessary to determine that question, because, even if ap-pellees are correct, why should plaintiffs, if entitled to have their rights fixed by the judgment, be deprived of such right, and be required to depend upon their successful combating of a plea of res adjudicata in order to hold their land? Why should their title be placed in such a precarious and unsatisfactory condition?
[4, 5] Appellees complain of the hardship worked by their being compelled to pay the enormous costs accrued in this case, and say that, if the suit had been brought only for such interests as plaintiffs owned, they would at once have disclaimed. It will be seen, from the cases hereinafter cited, that such hardships frequently occur, and the only way to avoid them is to disclaim, except as to what the defendants feel entitled to hold, and which they think they can show themselves entitled to hold. Our statute governs this matter and permits a defendant to require the plaintiff to show title, and, if he fails to do so, defendant recovers the land; and such being the rule when defendant takes his chance of winning land to which he is not entitled by filing plea of not guilty as to all the land sued for, it appears reasonable that he should not complain of the penalty exacted by law if plaintiff shows himself entitled to recover all or a portion of the land sued for. On the question of costs, in addition to the case of Ballard v. Carmichael, supra,' we cite the following cases on the proposition that plaintiffs should have recovered their coste below as well as their interest in the land: King v. Bock, 80 Tex. 156 , 15 S. W. 804 ; Richmond v. Sims, 144 S. W. 1144 ; Perry v. Rogers, 52 Tex. Civ. App. 594 , 114 S. W. 897 ; Brown v. Humphrey, 43 Tex. Civ. App. 23 , 95 S. W. 23 ; Bexar County v. Voght, 91 Tex. 285 , 43 S. W. 14 ; Dutton v. Thompson, 85 Tex. 120 , 19 S. W. 1026 .
Appellees also say that had appellants suggested in the lower court that the judgment be so worded that it should not be construed as an estoppel to assert the title of Pilar Zarate y Bayerena to an undivided one-third of the land, and to the title of those that had acquired title from him by inheritance or purchase, there would have been no objection to such a modification. Appellees do not say they would have agreed that the judgment should give plaintiffs a recovery of the interests to which they proved title, and in fact it appears that both the trial court and appellees’ counsel tried the case upon the theory that plaintiffs must recover all or nothing.
We assessed the costs of the appeal against appellees, because it appears that plaintiffs, in their motion for new trial, complained of the general verdict of the jury as unsupported by the evidence; and, the matter being thus called to the attention of- the court, the correction should have been made. Sullivan v. Fant, 51 Tex. Civ. App. 6 , 110 S. W. 521 .
Bor the reasons herein stated, we overruled appellees’ motion for rehearing.