The opinion
On Motion for Rehearing.
In her motion for rehearing appellant insists that we erred in our disposition of the case and in affirming the trial court’s judgment upon the ground that appellant could not maintain her contentions because the record shows she had no interest in the subject matter of the controversy. She invokes the familiar rule *586 that, in trespass to try title, the plaintiff must recover upon the strength of his own title and not upon the weakness of the title of his adversary, and contends with much force that appellee, not having connected itself by a valid chain of title with the title held by Panhandle Northern Oil Company, nor having shown it holds a valid title to the involved property which proceeds from any other source, was not entitled to recover as plaintiff in trespass to try title. She contends, therefore, that the judgment of the trial court should have been in her favor and that we erred in not so holding.
We are, of course, familiar with the rule invoked by appellant in these contentions. It is well settled in this state, however, that the rule is not available to a stranger to the title where prior possession is shown in the plaintiff or his predecessors.
The trial court found that, after the forfeiture of the charter of the Panhandle Northern Oil Company on December 10, 1930, the directors of the corporation did not liquidate the company, but continued to operate the property in the name of the corporation. He found that, in their operation of the property, the directors of the corporation incurred indebtedness of more than fifteen thousand dollars to F. A. Denson and that, to represent and secure this indebtedness, three notes were executed by the directors and a deed of trust executed by them in which they conveyed the oil and gas lease to Lewis Tupin as trustee with power of sale in case - of default in payment of the notes. The deed of trust was foreclosed and the oil and gas lease sold to F. A. Denson for $10,000 in accordance with the provisions of the power of sale. The directors, by resolution, acquiesced in the sale by the trustee and Denson thereafter conveyed the property to appellee.
These findings necessarily imply possession of the property by the former directors of the Panhandle Northern Oil Company after its charter was forfeited. The record fails to show any interruption of the possession of the directors before the foreclosure or of Denson or appellee afterwards, until the 2nd of January, 1936, when it is alleged by appellee that appellant entered upon the premises and dispossessed appellee. Indeed, such possession is not challenged by appellant. In defense of the cause of. action, appellant alleged that the title of appelle'e was void and of no force or effect for the reason that it was founded upon the foreclosure of the deed of trust which was void for lack of authority of the board of directors to execute it as well as to execute the notes which it was given to secure.
We have shown in our original opinion that appellant was not the owner of any of the capital stock of the Panhandle Northern Oil Company. The only interest claimed by her in the subject matter of the suit is such as she alleged she owned by virtue of being a stockholder in that company. As such she asserts her rights in the property of the defunct company and also the rights of all other stockholders similarly situated. Since appellant had no such right or interest, she necessarily falls within the category of a naked trespasser. It is a well established rule of law in Texas that the plaintiff in an action of trespass to try title who has established prior possession is permitted to recover as against a trespasser. In such cases his prior possession carries with it the presumption of ownership. Payton v. Loustalott et al., Tex.Com.App., 53 S.W.2d 1012 ; Allen v. Vineyard et al., Tex.Civ.App., 212 S.W. 266 ; Estelle et al. v. Hart et al., Tex.Com.App., 55 S.W.2d 510 ; Byers et al. v. Christian, et al., Tex.Civ.App., 87 S.W.2d 314 ; Bankston et al. v. Fagan, Tex.Civ.App., 64 S.W.2d 820 ; Perez v. Cook, Tex.Civ.App., 208 S.W. 668 ; Fields & Co. v. Allison, Tex.Civ.App., 171 S.W. 274 .
Furthermore, granting that the deed of trust was void, as contended by appellant, because of lack of authority of the former directors of Panhandle Northern Oil Company to execute it, and granting, further, that title through its foreclosure by the trustee is void and that it is the only title to the involved premises that is held by appellee, still appellant, being a stranger to the title, is in no position to attack it. This question was definitely and positively disposed of in principle by the Supreme Court in the case of Buvens v. Brown, 118 Tex. 551 , 18 S.W.2d 1057 . The facts in that case were more susceptible to a contrary rule than those in the case now before us for the reason that the plaintiff in that case introduced his chain of title and one of its muniments was a deed purporting to have been executed by a married woman joined by her husband in which her separate estate in land was attempted *587 to be conveyed. The deed was not acknowledged as required by law and was, for that reason, absolutely void as a conveyance. The defendant in error in that; case contended that, even if the married woman’s deed, unacknowledged, be regarded as absolutely void, yet it was not open to the appellants, entire strangers to the title of the married woman, and trespassers upon the property, to insist upon its invalidity. In disposing of the issue, which was sharply contested, the Supreme Court, speaking through Justice Pierson, said [page 1062]:
“This court has consistently held the privy examination, acknowledgment, and declaration before the officer, as required by the statute, essential to the validity of a married woman’s conveyance, and that a defectively acknowledged - deed to her separate lands did not convey her title to the vendee, and was void. It repeated that ‘to hold otherwise would be practically to repeal the statute.’ In order to give the statute effect and to protect the married woman, such holdings were necessary and correct. But we repeat that the only purpose of the statute was to protect the married woman, and it was enacted for her benefit.
“Though a deed of a married woman which is not acknowledged as required by the statute be considered void as to her and her'privies, we think the proposition that a stranger to such title cannot be heard to raise the issue of its invalidity is thoroughly reasonable and legally sound. Certainly it is equitable and just.”
The question was raised by Justice Stay-ton in pronouncing the opinion of the Supreme Court in the case of Tom et al. v. Sayers et al., 64 Tex. 339 ; but it was not decided because, as stated by Judge Stayton, its decision was not necessary to a disposition of the case.
It came before the same court again in the case of Spivy v. March et al., 105 Tex. 473 , 151 S.W. 1037 , 45 L.R.A.,N.S., 1109, and again was not decided because its decision was not necessary to a disposition of the case; but, by way of dicta, Chief Justice Brown, speaking for the court, said [page 1040] : “We have in this case, by the decision of the Court of Civil Appeals, a stranger setting up a defect which the vendor refused to assert. The injustice and unreasonable character "of the proposition forbids that this court .should approve it, unless required to do so by precedents that we dare not disregard. We do not find the decisions of our courts to be of that character.”
In deciding the Buvens v. Brown Case, supra, Justice Pierson recognized as dicta the statements of the court in those two cases regarding this question, but he stated that: “Therefore, since it is directly before us and is decisive of the case, we do not hesitate to decide the question raised by Judge Stayton in Tom v. Sayers, 64 Tex. 339 , and declared through dicta by Judge Brown in Spivy v. March et al., 105 Tex. [473], 478, 151 S.W. 1037 , 45 L.R.A.,N.S., 1109.”
It is true the cases to which we have referred involved the right of strangers to attack titles defective because of. the absence of legal acknowledgments by married women in conveyances of their separate property and that identical question is not involved in the' case now before us; but the gravamen of the holdings of the court in those cases was the right of a stranger to attack the title of the plaintiff in trespass to try title who was in possession of the property and we can see no difference between the asserted right of a trespasser to attack such a title and his right to attack a title that is void for any other reason where it is established, as in this case, that the plaintiff was in possession of the property.
An exception to the rule has been recognized in the case of a junior lien holder whose rights were attempted to be foreclosed by a void sale of the property under a prior lien and it may be that the experience of the courts in dealing with the subject will develop legal or equitable grounds for other exceptions; but we perceive none such in this case. See Estelle v. Hart, supra.
We have carefully considered 'appellant’s motion and the able written and oral arguments presented by her counsel; but we are unable to overcome the conclusion that our original disposition of the case was the correct one and that the judgment of the trial court should be affirmed. The motion for rehearing is, therefore, overruled.