11 S.W. 136

MAYES 
v. 
MANNING et al.

Supreme Court of Texas.
February 15, 1889.

Appeal from district court, Freestone county.
George A. Bell and Anderson & Gardiner, for appellant. Kirven, Gardner & Etheridge, for appellees.

HENRY, J.
        This is an action of trespass to try title, commenced on the 6th day of June, 1887, by plaintiff 
against his father's administrator, widow, and children by her, to recover 400 acres of land. Defendants 
answered by plea of not guilty, and 10 years' statute of limitation. The case was tried without a jury, and 
judgment rendered in favor of plaintiff for one-half, and for the defendants for the other half, of the land. 
The record contains the judge's conclusions of fact, from which it appears: T. G. Mayes and Catherine G. 
Boyd were married in Alabama in 1842, and plaintiff, the only child of the marriage, was born in 1846. 
Plaintiff's father and mother moved to Texas in 1852, and in 1853 settled on the land in controversy. In 
1853, T. G. Mayes, the father of plaintiff, purchased the land; paying for it with money


Page 137
then advanced his wife by her father, and taking the deed for it in his own name. The wife, Catherine 
Mayes, died shortly after, in 1853. T. G. Mayes married again, in 1854, and continuously resided on the 
land until his death, in 1886. Plaintiff knew how the land was purchased and paid for as early as 1874, 
and in that year was threatening to sue his father for it. T. G. Mayes always admitted his son's title to half 
of the land, but openly and positively denied his having any interest in the other half; always up to the 
time of his death asserting his own title to the other half. The residence of T. G. Mayes and about 35 acres 
of cultivated land were on the land in controversy; the remainder of his homestead was on a different 
tract owned by him. Plaintiff at no time claimed less than the whole of the 400 acres, and declared to T. 
G. Mayes and others that he would not institute suit for the land during the life-time of his father. T. G. 
Mayes sold 60 acres of the tract, with the consent of his son, (plaintiff.) The trial judge's conclusions of 
law upon said facts were: (1) That the legal title was in T. G. Mayes, and a resulting trust in his first wife, 
which vested at her death in plaintiff; (2) that the statute of limitations began to run against plaintiff as to 
half of the land from the time he reached his majority, and had barred him before he instituted this suit.
        Appellant's assignments of errors are, substantially: (1) The court erred in its conclusions of fact as 
to the time when T. G. Mayes first repudiated the trust, as well as to the time when plaintiff first had 
knowledge of it; (2) that the court erred in concluding that plaintiff was barred of his right to recover half 
of the land by limitation.
        While the evidence is neither full nor explicit on the point, we think it fairly conduces to establish the 
conclusion of the judge as to the dates of the repudiation of the trust, and of plaintiff's knowledge thereof. 
The evidence is of the same character and more satisfactory than that by which plaintiff establishes the 
fact that there was a resulting trust at all. If there is any objection to the conclusions of fact upon the vital 
issues of the case, we think it is that they are more favorable to plaintiff than the evidence justifies. 
Plaintiff stated his title in his pleadings only in general terms, not specifying in any manner how it was 
derived. On the trial he was correctly permitted to prove facts constituting a resulting trust in his favor, 
amounting, substantially, to the equitable title. The defendants' plea of the 10 years' statute of limitation 
was applicable, both to the case made by the plaintiff's pleadings and his evidence. We think, too, that, 
plaintiffs having alleged title and established it by proof of a resulting trust, defendants were properly 
entitled to the application of the doctrine of stale demand, under their plea of not guilty.
        It is contended that the father of plaintiff, having a right under the law to the possession of the 
homestead, and, in addition to that, a one-third interest in the remainder of the tract, his possession, in 
connection with his declarations of ownership and intention to hold more, did not have the effect to put in 
motion the statute of limitations against the plaintiff. Admitting that limitation will not begin to run against 
a party whose property is held by another until he has a right of action against the party holding it to 
establish his right, it still must be granted in this case that the defense is applicable because plaintiff had 
such cause of action against his father for title and possession for more than 10 years before he began 
this suit. Except for the 35 acres held as part of the homestead, he had all the time, during his father's 
life, the same right to sue that he had after his death, and that he had when he instituted this suit. His 
father was entitled to hold as tenant in common with him a one-third interest in the entire tract, and, 
being in possession as a tenant in common, and by virtue of his homestead rights, he could not acquire an 
adverse interest in the land by mere possession. But the doctrine is well established that if one tenant in 
common, in addition to his possession, sets up a claim for a greater interest than he owns, and excludes 
his co-tenant, his holding becomes adverse, and may mature into title by limitation. In such case, the co-
tenant has a right of action, either to establish title and be let into possession with his co-tenant, or to 
have partition. In this case the father, being entitled to only a one-third interest for life, asserted title to 
half in fee. Plaintiff could undoubtedly have maintained at any time a suit against him for title and 
partition or possession, in which the judgment could have been so framed as to give him relief, and at the 
same time protect his father in the enjoyment of the homestead and his life-estate. But, independently of 
the statute of limitation, we believe the doctrine of stale demand ought to apply in this case. The plaintiff's 
case, whatever form it takes, is substantially the assertion of a resulting trust. Whether such a trust exists 
in his favor or not depends upon whether, in point of fact, it was his mother's money that paid for the 
land. His father, while living, would have been an important witness as to whether or not that fact existed. 
The suit was delayed to await his death, and then brought against his widow and children. The father's 
version of the transaction could not then be given by him. His declarations were introduced in evidence 
without objection. Treating them as admissible, and sufficient to establish plaintiff's equitable title, as far 
as they go, we do not think they should be given an effect beyond that and held to establish a claim that 
was always disputed by him. We affirm the judgment.