Opinion
No. 14120.
February 21, 1941. Rehearing Denied April 4, 1941.
Appeal from District Court, Upshur County; Bascom Gist, Judge.
Suit in the form of trespass to try title involving boundary question by S.E. Richardson and others against W. C. Turnbow and others, wherein the State of Texas intervened as a party defendant. From an adverse judgment, MV. C. Turnbow and the State of Texas appeal.
Affirmed.
Gerald C. Mann, Atty. Gen., and R. E. Kephe and James Noel, Asst. Attys. Gen., for appellant State.
Edwin NI. Fulton, of Gilmer, Hendricks Brown and Mike E. Powell, both of Fort Worth, and Trueheart, McMillan Russeil, of San Antonio, for appellant Turnbow.
Florence Florence, of Gilmer, for appellees.
This is a suit in the form of trespass to try title, brought by S.E. Richardson and others against W. C. Turnbow, in which the State of Texas intervened as a party defendant. It is one of the four suits mentioned in W. C. Turnbow et al. v. J. F. Bland et al., 149 S.W.2d 604, on this day decided by us.
Except for the questions relating to the, right of S.E. Richardson to maintain this suit, the controlling facts are the same as those in the Bland case, and the issues are the same. What we said in that case is decisive of this case, except as to the matters hereinafter referred to.
Appellants contend that S.E. Richardson failed to prove title in herself sufficient to authorize her to maintain this suit, charging particularly that she failed to prove that she was married to J. D. Richardson, her deceased husband, at the time the land was deeded to him in 1901. Without detailing the evidence, we think it is entirely sufficient to prove such fact; and even if it were not, she would be entitled to maintain the suit as against a trespasser on two other grounds: First, even if the land had been the separate property of her deceased husband, she would have had an interest in the land by inheritance; and second, she was in actual possession of the land as her homestead. A tenant in common may maintain an action to recover the whole of the land from one having no title. Taylor v. Higgins Oil Fuel Co., Tex.Civ.App. 2 S.W.2d 288, and cases cited therein. What we said in the Bland case relative to the rights of those in possession to maintain suit in that case is applicable here.
All assignments of error are overruled.
The judgment of the trial court is affirmed.
On Motion for Rehearing.
Motion for rehearing overruled per conclusions filed in W. C. Turnbow et al. v. J. F. Bland et al., Tex.Civ.App. 149 S.W.2d 604.