author: CARL, J.

text:
    MARTINEZ et al. v. GUTIERREZ’S HEIRS.
    (No. 5382.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 6, 1915.
    Rehearing Denied Jan. 27, 1915.)
    1. Appeal and Error (§ 742) — Assignments of Error — Statement.
    An assignment of error will not be reviewed where it is not followed by an adequate statement to show the matters about which complaint is made, and where what purports to be a proposition under the assignment is mere argument.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    2. Appeal and Error (§ 728) — Assignments of Error — Admission of. Evidence.
    An assignment of error relating to the admission of evidence will not be considered, where it does not clearly show whether the evidence was objected to because of the substance thereof, or because it was apparent from the record that the cause of action was barred by limitations, and the statement following the proposition did not set forth the evidence bearing on the objection, but merely copied the 'bill of exceptions.
    LEd. iNote. — Jfor other cases, see Appeal ... Error, Cent. Dig. §§ 3010-3012; Dec. Dig. 728.]
    3. Appeal and Error (§ 1062) — Harmless Error — Is'sues.
    In an action against an administrator and his bondsmen for conversion of assets, submission of an issue as to the number per head and kind of cows, bulls, and heifers that intestate died possessed of, and their value, was not prejudicial on the ground that defendant’s liability was limited to the property that came 'into his possession, where it was expressly so limited by other issues submitted.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212 — 4218; Dec. Dig. § 1062.]
    4. Appeal and Error (§ 724) — Assignments of Error — Reference to Transcript.
    An assignment of error merely referring to a page of the transcript for a certain paragraph of appellants’ motion for a new trial to disclose the errors complained of will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2997-3001, 3022; Dec. Dig. § 724.]
    5. Appeal and Error (§ 742) — Assignments of Error — Statement—Proposition.
    An assignment of error complained of the charge on the statute of limitations because it was claimed that there was nothing in the evidence to show that plaintiffs could not have brought the suit within four years after the cause of action accrued. The proposition recited that the cause of action of every one of the plaintiffs who had passed his twenty-fifth year when the suit was filed was barred by the four-year statute, and the statement declared that the limitation was pleaded by all the defendants, and that various excuses were given for not bringing the suit sooner; no statement, however, having been made as to the facts which would show that the plea of limitation was good. Held, that the statement was not germane either to the assignment or proposition thereunder, and hence the assignment would not be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    6. Limitation of Actions (§ 100) — Fraud.
    In case of fraud, limitations will not run until discovery of the fraud, or until, by the use of reasonable diligence, it could have been discovered.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 323, 480-493; Dec. Dig. § 100.]
    7. Executors and Administrators (§ 537)— Conversion of Assets — Action on Bond— Limitations.
    As against an administrator’s sureties, limitations against an action by heirs to recover for an alleged conversion of the assets by the administrator began to run as against such heirs as were of legal age, from the time of the administrator’s discharge by the probate court, and was not barred in four years thereafter by Rev. St. 1911, art. 5689, declaring that all suits on the bond of any executor, administrator, or guardian shall be commenced and prosecuted within four years next after the death, resignation, removal, or discharge of such administrator, etc.
    [Ed. Note. — For other cases, see Executors and Administrators, Cent. Dig. §§ 2453, 2485-25S1;, Dec. Dig. § 537.]

      Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Action by tbe beirs of Bias Ma. Gutierrez against Eudoxio Martinez and others. Judgment for plaintiffs, and defendants' appeal.
    Reversed and rendered in part and reformed and affirmed in part.
    A. Winslow, of Laredo, for appellants. Greer & Hamilton, of Laredo, for appellees.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       writ of error pending in Supreme Court.

   CARL, J.

Trinidad Martinez, joined by her husband, Fernando Martinez, Isabel Gutierrez, a feme sole, Maria S. Gutierrez, a feme sole, Dolores Gutierrez, a feme sole, Maria del Refugio Gutierrez, a feme sole, Vicente Gutierrez, Jose Gutierrez, and Amado Gutierrez, heirs of Bias Maria Gutierrez, brought this suit against Eudoxio Martinez (as former administrator of the Bias Ma. Gutierrez estate), and his bondsmen, Rroceso Martinez and Manuel C. Garcia, appellants. Tomasa Gutierrez, wife of Eudoxio Martinez, is also a daughter of Bias Ma. Gutierrez, but she was not a party to the suit.

Bias Ma. Gutierrez died intestate on the 1st day of May 1898, and Eudoxio Martinez, his son-in-law, took out letters of administration on his estate in Zapata county, where he lived, and where the estate was situated, first as a temporary, and then as a permanent, administrator, and gave bond in the sum of $5,000. Proceso Martinez and Manuel C. Garcia were sureties on the bond. The appraisement was filed June 3, 1898, showing an aggregate valuation in property, including land, in the sum of $7,215.75. Eudoxio Martinez filed his final account on April 3, 1906, and was discharged.

The petition charges that Martinez was appointed temporary administrator and his bond fixed at $1,000 upon false representations that the estate was of small value, when, in fact, it was of the reasonable value of $23,000; that subsequent thereto he was appointed permanent administrator upon his false and fraudulent representations and showing that said estate, including realty, did not amount to more than $7,215.75, and upon such representations and false and fraudulent showing was placed under a $5,000 bond, which he gave with his codefendants as sureties. The petition further charges:

“That the said administrator reported the following as constituting the separate property of said deceased Bias Maria Gutierrez, to wit: 593 acres of land with river front in Zapata county, and 5,542 acres on the rear of said tract. That he reported falsely the following as constituting all the community property of the said Bias Maria Gutierrez and his wife, to wit: Their homestead in San Ygnacio; 300 head of cattle; 34 mares; 2 stallions; 13 colts; 7 wild mules; 7 colts, large; 4 gentle mules; 70 head of goats; and other personal property, including household furnishings — the total value whereof, as returned by said administrator and the appraisers acting with him, being $7,215.75. That said rendition was made on the 3d day of June, A. D. 1898, and, in truth and in fact, the total value of the personal property received by him was as alleged above, to wit, approximately $23,870; and it is alleged upon information and belief it consisted of seven hundred (700) to eight hundred (800) head of cattle of the value of twelve ($12.00) dollars to fifteen ($15.00) dollars per head; one hundred horse stock, including horses and mules of the value of twenty ($20.00) dollars per head; seventy (70) goats of the value of one ($1.00) dollar per head; cash in trunk about twelve thousand ($12,000.00) dollars; . and other personal property mentioned in the inventory filed by said administrator.”

The petition also alleges that Bias Ma. Gutierrez, just before his death, executed an holographic will and attached to it 'a list of his property, and directed the disposition thereof, and placed same in the' trunk mentioned, but that Eudoxio Martinez took possession of. the trunk and its contents, including about $12,000 in money about $10(000 or $11,000 being in United States currency, and about $500 in Mexican silver coin, as well as papers, documents, bills of sale, accounts of sales, and purchases of cattle, goats, horse, stock, real estate, and money on hand. It is alleged that plaintiffs were small children, and were ignorant of their legal rights, could not read English, were not familiar with the laws of Texas, and did not know that the holographic will could be probated; that Eudo-xio Martinez had all these papers, including the will, or had destroyed same, at the time he took out letters of administration; that Martinez charged all his living expenses to the estate and made “large and extravagant and untrue charges of the items of food and other alleged expenses which these plaintiffs never shared in or used.” And finally it is charged that the administrator mismanaged the estate and appropriated to his own use “the aforesaid stock and various other items of property and money, in that he never fairly and truly reported all of the property of said estate as hereinbefore enumerated, and in that he has never made any true and correct accounting of all of the personal property of said estate to said probate court of Zapata county, and that court had no means of ascertaining the real and true facts, but, of necessity, had to rely upon the sworn statements of said defendant.” The prayer is for $8,000, with interest from 1906.

It is alleged that the jurisdiction of the county court of Zapata county terminated upon the 3d day of April, 1906, and that the ages of the heirs are as follows: Trinidad, born March 13, 1881; Isabel, born November 19, 1882; Maria S., born October 22, 1884; Vicente, born December 19, 1886; Dolores, born December 18, 1888; Jose Maria, born January 14, 1891; Amado, born February 17, 1893; Maria del Refugio, born May 1, 1895 — and that Amado and Maria del Refugio were still minors at the time the plaintiffs’ second amended petition was filed, January 2, 1914. It is alleged that the plaintiffs did not discover the alleged mismanagement and know of their rights until 1913; and it is charged upon information and belief that the bondsmen were aware of and aided and abetted Eudoxio Martinez in bis fraudulent reports and in bis unlawful appropriation of tbe personal property.

Tbe original xxetition was filed in tbis cause on tbe 22d day of September, A. D. 1913.

Eudoxio Martinez answered, denying all tbe material allegations; pleaded tbat tbe Bias Ma. Gutierrez estate was partitioned in tbe probate court of Zapata county by an order dated February 12, 1906, and tbat at that time tbe plaintiffs were all fully advised of tbe condition of said estate and tbe way in which it' bad been bandied, and none of them made any objection, nor bad they or any of them ever claimed tbat said estate bad not been honestly and fairly bandied. Eudoxio Martinez also claimed tbat tbe estate was indebted to him in tbe sum of $600, same being 10 per cent, on $6,000 received and paid out; and also for $195 advanced with which to buy land, as well as for taxes. He claimed $795. He also pleaded the two and four year statutes of limitation.

Tbe bondsmen denied tbe allegations as to any knowledge on their part of any mismanagement of tbe estate on part of Martinez, or of their participation therein; pleaded tbe orders and judgments of tbe probate court as settling tbe property status; and interposed tbe two and four year statutes of limitation.

Tbe case was submitted on special issues, and in response thereto tbe jury answered: ‘ (1) Tbat Eudoxio Gutierrez did not render a full and complete account of tbe estate in bis inventory.

(2) Tbat Bias Gutierrez died possessed of 700 bead of cattle valued at $11 per bead, or a total of $7,700.

(3) Tbat be left 100 horses valued at $15 per bead, or a total value of $1,500.

(4) Tbat be bad 80 goats valued at $80.

(6) Tbat be left $500 (gold).

(7) Tbat Eudoxio Martinez came in possession of $500 in money.

(8) That Bias Gutierrez did not leave an holographic will.

(10) Tbat there was no evidence tbat the bondsmen knew of tbe administrator’s failure to render all of tbe property.

(11) Tbat Trinidad Martinez, Maria S. •Gutierrez, Isabel Gutierrez, Maria S. Gutierrez, and Vicente Gutierrez were not acquainted with and in possession of tbe facts as to the extent and value of tbe property tbat came into Eudoxio Martinez’s possession four years prior to September 22, 1913, ^the date tbe suit was filed.

(12) Tbat tbe above parties came in possession of tbe facts during July, 1913.

(13) That 400 bead of cattle valued at $4,700, 19 head of horses valued at $981, and 10 head of goats valued at $45, or a total •valuation of $5,726, came into tbe possession of Eudoxio Martinez as administrator tbat be did not report in bis inventory and ap-praisement.

(14)Tbat 12 per cent, of tbe cattle tbat were not reported died from tbe effects of tbe drought in 1901 and 1902.

Upon these findings, tbe court entered judgment in favor of the plaintiffs against Eu-doxio Martinez for $6,226, “less 12 per cent, of tbe cattle lost by tbe drought of 1901 and 1902, amounting to tbe sum of $564, leaving tbe eight-ninths remainder, so adjudged to plaintiffs in tbe sum of $5,033, as principal, together-with interest thereon from April 3, 1906, at 6 per cent., amounting to tbe further sum of $2,395.68, making a total so adjudged against Eudoxio Martinez in tbe sum of $7,428.68, for which execution is awarded. The plaintiffs are also awarded a judgment against Proceso Martinez and Manuel G. Garcia in tbe sum of $5,000, stipulated in tbe bond, and execution awarded for tbat.

Tbe first assignment of error is not considered, because not in accordance with the rules of briefing. It has no adequate statement to show tbe matters about which complaint is made, and what purports to be a proposition under tbe assignment is a mere argument.

Neither will tbe second assignment be considered, because it is not clear whether the admission of testimony is the ground of complaint, because of tbe substance of tbe same, or whether because it was apparent of record that tbe cause of action was barred by tbe statute of limitation. And tbe statement following tbe proposition does not set forth tbe evidence bearing on the objection, but merely coioies a bill of exception. Neither are tbe allegations of tbe petition which seek to excuse tbe bringing of a suit earlier set forth.

Tbe third and fourth assignments are without merit, and are overruled.

Tbe fifth assignment complains of tbe second special issue submitted to tbe jury, which is as follows: “What was tbe number per bead and kind — tbat is to say, cows, bulls, and heifers — that Bias Ma. Gutierrez died possessed of, and what was their value?” because the defendants could only be held liable, if at all, for tbe number and value that went into his possession after bis qualification as administrator of tbe estate. Standing alone, we are inclined to agree with appellants tbat tbis charge is not correct. But, when tbe same is considered in connection with tbe other issues submitted, we do not think tbis should reverse tbe case. Tbe first question submitted was: “Did tbe defendant Eudoxio Martinez render a true, full, and complete account of all the property tbat came into bis bands as administrator in tbe inventory which has been read in evidence and which will be given you in your retirement?” To this tbe jury answered, “No.” In the 13th special issue, tbe jury was asked: “What was tbe number and kind of live stock that came into the possession of Eudoxio Martinez, the administrator of said estate, that was not reported in the inventory and appraisement and the value thereof?” This charge was not excepted to on the ground that it assumed that Martinez did not report some of the stock that came into his possession. In answering this question, the jury found that Martinez did not report 400 head of cattle worth $4,700, 19 head of horses valued at $981, and 10 head of goats valued at $45. And the jury also found that Martinez came in possession of a bag of money of the value of $500, gold, which, added to the value of the missing stock, aggregates $6,226, the amount for which the judgment was rendered against Martinez for principal, less one-ninth thereof — his wife’s share. So, while the charge complained of, standing alone, might be objectionable, no harm was done appellant thereby, and the assignment is overruled.

On the matters complained of in the eighth assignment, the jury found that the bondsmen did not know that the administrator had failed to render part of the property, and we are unable to see how injury could result when the jury found with appellants on that issue. This assignment is overruled.

What purports to be the ninth assignment is merely a reference to a page of the transcript for a certain paragraph of appellants’ motion for a new trial. We do not doubt that the paragraph could be found by following the directions given; but the rules of practice require litigants to present their cases in briefs wherein the assignments of error, propositions, statements, authorities; etc., will appear, to the end that this court, in its many heavy duties, may not be required to search out ponderous records to discover the wrong done. The party who complains of an injury has the burden of showing how he got hurt, and, when that is not done, this court will not be called upon to diagnose his case. This assignment will not be considered.

The tenth assignment complains of the charge on the statute of limitation because it is claimed that there is nothing in the evidence that showed or tended to show that plaintiffs could not have brought this suit within four years after, the cause of action accrued. The proposition thereunder is to the effect that the cause of action of every one of the plaintiffs who had passed his twenty-fifth birthday at the time the suit was filed was barred by the four-year statute of limitation. In the statement it is said that limitation was pleaded by all the defendants, and that various excuses were given for not bringing the suit sooner. No statement whatever is made, however, as to the facts which would show a limitation plea good. The statement is not- germane either to the assignment or proposition thereunder, and we cannot consider same.

The evidence in this case discloses that the administration was closed and the property then on hand was partitioned, among the heirs in the probate court of Zapata county in the spring of 1906. Then the administrator and his bondsmen were discharged by an order of that court. The jury found that the bondsmen knew nothing whatever as to any property being withheld by Martinez from the inventory. We have searched the record in vain to see if there was sufficient evidence to excuse the failure to bring the suit sooner. One of the parties testifies positively that Bias Ma. Gutierrez had made a will in his own handwriting, but that she did not know that it was a good will until she conferred with her attorneys shortly before bringing the suit. Another of the parties also testifies in a way to such a will being in existence. The jury, however, found that no such will was ever executed. The way the estate was conducted was a matter of public record in Zapata county, and of this the parties were bound in law to take notice. If Martinez practiced fraud, it was neither of that nature termed in law “sug-gestio falsi,” or of keeping silent when he should speak, nor of “suppressio veri,” because his acts were public acts. There is no legal showing made as to why the same evidence upon which the plaintiffs went to trial could not have been obtained any time from the day the administration was closed up to the time the suit- was filed or within four years; nor is there any evidence that Martinez or any of his bondsmen concealed any of this evidence from the plaintiffs. The evidence is further to the effect that about the time of the settlement of the estate and partition of the property in 1906 there were charges of incorrect accounts, etc., to such an extent that the commissioners could not agree. Limitation will run against, an action for fraud, and it begins to run from the time of the discovery thereof, or from the time when, by the use of reasonable diligence, it could have been discovered.

Miss Maria Salome Gutierrez, one of the plaintiffs, said that her father read .to her his will, and that at that time he had about $12,000 in his trunk, consisting of silver, gold, and currency, and that there was about $500 in silver and $300 Mexican money. Another sister said there was so much silver in a sack that she could not lift it. This is about all of the testimony on the matter of money on hand. And yet the jury found that out of all this treasure there was $500 gold, and at the same time found that Bias Ma. Gutierrez did not leave a will at all. These facts, if they were facts, were known to the plaintiffs all the while, and Miss Salome was in her thirtieth year at the time of the trial. No excuse whatever is given why the suit was not sooner brought, except that most of them were young ladies and did not want to stir up trouble. If stock were withheld from the inventory, no reason is assigned why that fact was not sooner discovered or, by the use of reasonable diligence, could not have been discovered at any time. The will matter may he set aside because there was no will, under the jury’s finding. Miss Salome says she called her brother’s and sisters’ attention to the existence of the will about eight days after her father died, and says she told O. A. MeLane, a lawyer. As to Vicente, she says, “I told him these things as soon as he had use of reason,” and he was 27 years old at the time of the trial. After the final report was filed and the administrator and bondsmen were discharged in 1906, there is no evidence of the concealment of facts or of any conspiracy among Martinez and his co-defendants. The reports were public records, and the witnesses who knew of the cattle on hand that are claimed to have been omitted were as accessible to the appellees then as they were at the time the suit was filed.

In case of fraud, limitation would not run until the discovery of the fraud, or until, by the use of reasonable diligence,, the same could have been discovered. Pitman v. Holmes, 34 Tex. Civ. App. 485, 78 S. W. 961; Standford v. Finks, 45 Tex. Civ. App. 30, 99 S. W. 449; Shuttleworth v. McGee, 47 Tex. Civ. App. 604, 105 S. W. 823; Prosser v. First Nat’l Bank, 134 S. W. 781. In the last-named case it is held that fraud or ignorance thereof, unaccompanied by concealment, will not prevent the running of the statute of limitation. The evidence in this case is totally insufficient to prevent the running of the statute.

Article 5689 of the Revised Statutes provides:

“All suits on the bond of any executor, administrator or guardian shall be commenced and prosecuted within four years next after the death, resignation, removal or discharge of such executor, administrator or guardian, and not thereafter.”

The object of statutes of this character is to fix a time certain for the benefit of sureties, so that they may know definitely when their obligations as sureties will terminate. These statutes are for the benefit of sureties, and not for that of the principal. We are not deciding what the rule would be as to sureties if they were parties to fraud in concealing from the heirs the true condition of the estate, either at the time the inventory was filed or at the time of the closing of the estate, because the jury has found that the bondsmen did not know anything about their principal’s fraud, if he was guilty of such, and there is absolutely no evidence that they have ever gone into any scheme to withhold or conceal information as to the estate from the heirs. As to the sureties the statute of limitation would certainly begin to run, as against those heirs who were of legal age, from the time of the discharge by the probate court of Zapata county. McClellan v. Mangum, 33 Tex. Civ. App. 193, 75 S. W. 840; Marlow v. Lacy, 68 Tex. 154, 2 S. W. 52; Allen v. Stovall, 62 S. W. 87; Freedman v. Vallie, 75 S. W. 322.

The fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, and twentieth assignments are sustained, and this makes it unnecessary to deal specifically with the other assignments.

We therefore hold that, as to those heirs who were of legal age more than four years before the suit was brought, viz., Trinidad Martinez and her husband, Fernando Martinez, Isabel Gutierrez, Maria S. Gutierrez, Dolores Gutierrez, and Vicente Gutierrez, they should take nothing as against Eudoxio Martinez and his bondsmen, Proceso Martinez and Manuel C. Garcia, and the judgment of the trial court is reversed and here so rendered. But as to those heirs who were protected by minority, viz., Jose Maria Gutierrez, Amado Gutierrez, and Maria del Refugio Gutierrez, the judgment of the trial court will be affirmed against Eudoxio Martinez and Proceso Martinez and Manuel C. Garcia for three-eighths of the judgment rendered in the lower , court against Eudoxio Martinez, and that judgment is so reformed as to make it clearly appear that said sum is adjudged against the said Eudoxio Martinez and his bondsmen, Proceso Martinez and Manuel C. Garcia.

Five-eighths of the costs in this court and the court below will be adjudged against ap-pellees, except Jose Maria Gutierrez, Amado Gutierrez, and Maria del Refugio Gutierrez; and the other three-eighths of the costs is adjudged against the said Eudoxio Martinez and his bondsmen, Proceso Martinez and Manuel C.-Garcia.

Reversed and rendered in part and reformed and affirmed in part.


source: Caselaw Access Project

author: ELY, C. J.

license: Public Domain

text:
    KELLY v. BLAKENEY.
    (No. 5380.)

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 6, 1915.
    On Motion for Rehearing Jan. 27, 1915.)
    1. Vendor and Purchaser (§ 232) — Bona Fide Pdrohasek> — Notice—Possession.
    Where plaintiff purchased from a lessor, after ascertaining from the records that the lessor’s title was unincumbered, except by a lease to defendant, who was in possession, and after the lessor had denied making any other conveyance, plaintiff was not chargeable with notice of the lessor’s deed to the lessee, which was- not recorded till after plaintiff’s.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 540-545, 548-562; Dec. Dig. § 232.]
    2. Adverse Possession (§ 60) — Requisites.
    Where one takes possession of the land of another under license, his holding will not become adverse to the owner without some open and hostile act on his part to evidence his claim of adverse possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 282-312, 323, 328; Dec. Dig. § 60.]
    Appeal from District Court, Val Verde County; W. C. Douglas, Judge.
    Action of trespass to try title by J. B. Blakeney against John Kelly. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    J. Q. Henry and Jones & Thurmond, all of Del Bio, for appellant. James Cornell, of Sonora, and John J. Hosier, of Del Rio, for appellee.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       Writ of error pending in Supreme Court.

   ELY, C. J.

This is an action of trespass to try title to recover eight sections of school lands in Yal Yerde county, instituted by appellee against appellant. The latter answered by general denial, general demurrer, and a plea of not guilty. The cause was tried without a jury, and resulted in a judgment for appellee for the land in controversy.

It was agreed by the parties that Juan Antonio Urteaga was the common source. On June 2S, 1909, he leased all the land, except a one-fourth interest in section 54, to Kelly & Norris, for 20 years, and the contract of lease was duly recorded on June 29, 1909. On July 1, 1913, Urteaga conveyed the land by deed to appellant, and the same was recorded on December 5, 1913. On November 28, 1913, appellant sought an injunction to restrain appellee from using 26,240 acres of land, which included the 5,120 acres of land sued for in this case. A temporary writ of injunction was granted.

On December 3, 1913, Urteaga and wife conveyed the land in controversy to appellee, and the deed was filed for record on same date. At that time, and prior thereto, the land was in an inclosure of appellant, together with about 42. other sections of land. Appellant was using the land for grazing purposes. Appellee negotiated with Urteaga for several weeks before he finally secured the conveyance to himself. He examined the records of Yal Verde county, and found nothing against the land, except' the 20 years’ lease, and he also employed an attorney to examine the records of Val Verde county, and also to ascertain the condition of Urte-aga’s title in the General Land Office, and it was ascertained that the title was good. Ap-pellee asked Urteaga, at the time of his conveyance, if he had made any other conveyance, except the lease, and was assured that he had made no other conveyance. Appellant and appellee were not on speaking terms at the time of the conveyance to ap-pellee, and he made no inquiries of Kelly as to his claim of title, nor of any one except Urteaga and appellee’s attorney.

The court concluded that it was not the duty of appellee to inquire of appellant as to any claim to the land he might have other than the lease, and further that the assertion of ownership by appellant in the injunction suit would not require any greater degree of care in making inquiry as to appellant’s claim to the land than would the mere fact of possession.

We think the court was correct in holding that appellee used diligence in ascertaining the nature and extent of appellant’s possession. The recorded lease accounted for the possession of appellant, and appellee might reasonably conclude that, if appellant had any higher or better title, he would place the evidence of it upon the records of the county. None of the decisions cited by appellant hold to the contrary; in fact in the case of Ramires v. Smith, 94 Tex. 184, 59 S. W. 258, it is held:

“That where a possessor of land has two claims to it, one of record and the other not, the possession is not notice of the unrecorded claim; the reason being that the record furnished a sufficient answer to the inquiry excited by the possession.”

The possession of appellant was not inconsistent with his tenancy under Urteaga, and there was nothing to indicate to any one that appellant was claiming title to the land. There is no statement of facts, and the findings of fact of the trial judge do not show that appellant claimed in his injunction suit to own any but a leasehold interest in the land. In order to excite inquiry, the possession of the land must be open, exclusive, and visible. It must evince a claim in his own right by the possessor. The only instrument on record showed the possession of a tenant under his landlord and served to disarm suspicion and stifle inquiry. There was no fact indicating a renunciation of the tenancy by appellant, and reason and common prudence would not require any further inquiry than the inspection of the record. That inspection was made by appellee and inquiries made of the record owner of the land as to whether he had made any other conveyance than the lease for 20 years.

It is the well-established rule that, where a person takes possession of the land of another with his permission, his holding the same will not become adverse to the owner without some open, hostile act clearly indicating a claim adverse to the owner. Carter v. La Grange, 60 Tex. 636; Smith v. Miller, 63 Tex. 72.

The facts in the case of Hamilton v. In’gram, 33 Tex. Civ. App. 604, 35 S. W. 748, are very similar to the facts in this case. Freeman was the owner of certain land, and sold it to Hamilton. Mrs. Ingram was in possession; the only evidence of her right to possession being a recorded lease contract, signed by the owner and Mrs. Ingram. The court held:

“Mrs. Ingram having signed the lease contract, and it having been duly recorded, according to the above authorities, appellant had the right to deal with Freeman on the assumption that Mrs. Ingram was in possession as his tenant.”

The authorities referred to are Eylar v. Eylar, 60 Tex. 315, Hurt v. Cooper, 63 Tex. 363, and Hoffman v. Blume, 64 Tex. 335, and they sustain the decision of the Court of Civil Appeals. As said in the Eylar Case:

“The policy of the law, as evidenced by our statutes, requires all conveyances of land or interests therein for a term longer than one year to be evidenced by writing, and, when parties place in this the most certain and enduring form the evidence of their right, they ought to be held, so far as third persons are concerned, to have therein spoken truly in respect to the title to the land to which the conveyance relates. * * * If the inquiry is prosecuted to the highest source which the law of the land declares shall exist for the determination of title, and to the source which the parties have created as the highest evidence of their respective rights, can it be true that it is further necessary to examine sources inferior and make inquiry as to whether or not there are claims, or even rights, in others not evidenced as the law requires, or otherwise the purchaser _ be charged with constructive notice of secret vices in the title which he buys. To so hold, we are of the opinion, would be to strike at the very foundation of the policy upon which registration laws rest.”

It would make a farce of the laws as to registration, if a man could enter into possession of land under a recorded lease contract, and then secretly buy the land and withhold the deed of conveyance from record, and then claim the land as against another purchaser on the ground that he should have gone to the ostensible tenant, who would not speak to him, and inquire if he was still holding as a tenant. The duty devolved on the tenant to record his deed of conveyance and thereby notify the public that he had changed his relationship towards the land; and it was not the duty of the citizen to follow up the tenant to ascertain if he had a deed in his pocket. In the absence of some circumstance that would cause the intending buyer to suspect that the status of the tenant had been changed to that of landowner, the former was under no obligation to inquire of the tenant as to the position he occupied toward the land. The negligence, failure to comply with the law, and inattention to business of appellant cannot deprive appel-lee of his position of innocent purchaser of the land.

The doctrine of notice must be controlled by facts essential to its existence, as set out by Judge Williams in the case of Paris Grocer Co. v. Burks, 101 Tex. 106, 105 S. W. 174:

“But the fundamental fact essential to the application of this doctrine is that of a possession visibly that of some one who is not the person with whom the purchaser or creditor purposes to deal. He is not required to institute inquiries as to the existence of rights of which there is no evidence upon the records, unless there be some fact which he knows or should know sufficient to excite inquiry in the minds of prudent persons.”

No fraud was shown to exist upon the part of appellee, and not a circumstance to indicate that he knew that appellant had purchased the land. The fact that the consideration recited in the deed to appellee may have been small was not sufficient of itself to indicate that appellee had notice of the claim of appellant. There is no evidence, however, tending to show that full value was not paid for the land.

The judgment is affirmed.

On Motion for. Rehearing.

It is not true, as stated in the motion, that 'one quarter section was not included in the lease contract. It was a one-fourth interest in section 54 that was not included in the lease contract, and that in an inclosure containing 40 sections of land. There was nothing in the fact that the small interest in the land was not included in the lease to put any one upon inquiry as to appellant having purchased the land. The possession that appellant had of the land was not of such character as to put the statute of limitations of 10 years in operation (articles 5677-5678, Rev. Stats.), and it is doubtful if such possession would put a person upon inquiry.

The motion is overruled.


author: HUEE, C. J.

text:
    STREET-WHITTINGTON CO. v. SAYRES.
    (No. 705.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 9, 1915.)
    1. Frauds, Statute of (§ 53) — Performance in a Year — Lease.
    A verbal lease for a term not longer than one year, to commence in the future, is valid.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 69, 80, 92; Dec. Dig. § 53.]
    2. Frauds, Statute of (§ 146) — Lease — Pleading.
    An allegation that defendant orally agreed to take the premises for at least one year, beginning January 1, 1914, and continuing to January 1, 1915, does Uot allege an oral lease for a period longer than one year. •
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 352, 355-357; Dec. Dig. § 146.]
    3.Landlord and Tenant (§ 86) — Construction of Lease — Option for Renewal.
    A clause in a lease, providing that the tenant at the end of the term shall have the refusal of the property for 12 months longer, gives an option for a renewal of the lease on the same terms.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 270-275; Dec. Dig. § 86.*]
    4.Landlord and Tenant (§ 90) — Construction of Lease — Option — Question for Court.
    Where there was evidence that the tenant, before the expiration of his term, notified the landlord that he elected not to take the premises for another year, the court could not say, as a matter of law, that a holding over by the tenant for half a month was an election by him to take a renewal of the lease.
    [Ed. Note. — For other eases, see Landlord and Tenant, Cent. Dig. §§ 28A-289; Dec. Dig. 90

    5.Landlord and Tenant (§ 86) — Construction of Lease — Option for Renewal.
    Such a clause gives an option for a renewal of the lease, not a mere extension of the lease, for an additional term.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 270-275; Dec. Dig. § 86.]

      6.Landlobd and Tenant (§ 90) — 'Option bob Renewai^-Evidence.
    A holding over by a tenant who has an option for a renewal under such a clause, even if presumptive evidence of an election to exercise his option, is not conclusive.
    [Ed. Note. — Eor other cases, see Landlord and Tenant, Oent. Dig. §§ 284-289; Dec. Dig. § 90.]
    7.Landlobd and Tenant (§ 230) — Actions fob Rent — Pleadings—Teems oe Lease.
    Where a lessor, in an action for rent for the year after the expiration of the term, did not plead an election by the tenant to take a renewal of the lease, under an option given him, it was error to instruct a verdict for the lessor on that ground.
    [Ed. Note. — Eor other cases, see Landlord and Tenant, Oent. Dig. §§ 904-925; Dec. Dig. § 230.]
    8.Landlobd and Tenant (§ 90) — Peeiodical Tenancy — Holding Ovee.
    Where a tenant held over after the expiration of his term, but after notifying his landlord that he intended to move as soon as another building was ready, and the landlord made 'no objection, but attempted to collect double the rent reserved by the lease, no agreement that the tenant should hold over for another term under the same lease could be implied.
    [Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. §§ 284-289; Dee. Dig. 90.]
    9.Landlobd and Tenant (§ 118) — “Tenancy at Will” — Holding Ovee by Pebmission.
    A “tenancy at will,” or periodical tenancy, may arise when the tenant holds over with permission of a lessor or with his tacit consent.
    [Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. §§ 402-415; Dec. Dig. § 118.

    Eor other definitions, see Words and Phrases, Eirst and Second Series, Tenant at Will.]
    10.Landlobd and Tenant (§ 90) — Tenancies ERom Yeae to Yeae — Tenant Holding Oveb.
    Where a tenant under a lease for eight months held over after the expiration of the term, the implied lease will not be for a full year, but only for eight months additional.
    [Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. §§ 284-289; Dec. Dig. 901]
    11.Landlobd and Tenant (§ 90) — Renewal of Lease — Holding Oveb.
    Where a landlord, though not expressly consenting thereto, by her words and conduct induced a tenant to believe that she consented to his remaining after the expiration of his term until another building was ready for him, she could not thereafter hold him on an implied contract for an additional term by reason of such holding over.
    [Ed. Note. — Eor other cases, see Landlord and Tenant, Cent. Dig. §§ 284-289; Dec. Dig. § 90.]
    Appeal from District Court, Cottle County; Jo. A. P. Dickson, Judge.
    Action by Mrs. E. P. Sayres against the Street-Whittington Company. Judgment for the plaintiff, and defendant appeals.
    Reversed and remanded.
    Jas. M. Whatley, of Paducah, and G. B. Hamilton, of Matador, for appellant. Browne & Hawkins, of Paducah, for appellee.

      For other oases see same topic and section NUMBER in Deo, Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HUEE, C. J.

Mrs. E. P. Sayres, appellee, sued the Street-Whittington Company, appellant, upon a breach of a rental contract, for damages in the sum of $580. The trial court instructed a verdict for the appellee in the sum of $580. The appellee alleged that she and appellant entered into a written rental contract on the 12th day of May, 1913, for a certain store building, for the term of eight months, beginning May 1, 1913, and continuing up to January 1, 1914; that it was agreed thereby that appellant should pay $100 per month during the term, and under such contract appellant took possession of and used the building, etc.; that thereafter, about July 15, 1913, appellant orally contracted and agreed with appellee that if she would put in certain shelving and improvements in the building, desired by it, it would—

“take the building' for at least one year, beginning from the 1st day of January, 1914, the date the contract above set out should expire, and continuing to the 1st day of January, 1915, at the said price of $100 per month, to be payable monthly on the last of each month, as was also provided in the former contract.”

She further alleged that, being desirous of keeping the storehouse occupied, she agreed to place the improvements required in the building, on the condition" that appellant would rent the building for the ensuing year of 1914; that she did, in accordance with her agreement, put in the shelving and improvements at a cost to her of about $400, and further alleged, in paragraph 3:

“Plaintiff will further show to the court that the defendant continued to use, occupy, and enjoy the said building under said written contract and lease up to and until the 15th day of January, 1914, when, without cause or excuse, the said defendant removed from her said building and abandoned sanie and refused to comply with the rental contract as above set out.”

The appellant, by answer, admitted having entered into a contract in writing up to January 1, 1914, as alleged by appellee, but denies having entered into an oral contract for the lease of the property for the year 1914, as alleged by the appellee; and — ■

“in answer to paragraph 3 of plaintiff’s petition, defendant says it is true it remained in said building until about the 15th day of January, 1914, but further says that it was expressly stipulated, agreed, and understood that it was not to remain in same longer, and did so remain for that length of time until the building it had rented from Craven for 1914 could be vacated by C. E. Jones, who occupied same during the year 1913; that defendant notified plaintiff about the middle of December, 1913, that it would not want to lease said building for the year 1914, and would vacate same just as soon as Jones vacated the Craven building, and did never at any time agree to rent same for the year 1914, but expressly stated to plaintiff that it would not rent same for the year 1914.”

The testimony of appellee and appellant is conflicting on the issue as to whether there was an oral agreement entered into to the effect that appellant would take the building for the year 1914 in consideration that ap-pellee would put in the improvements alleged. The appellee testifies such was the agreement, and that she made the improvements. The manager of appellant testified that it refused to make the written contract for eight months in 1913, until appellee agreed to put the imijrovements in the building, and the effect of appellant’s evidence is that the improvements were the consideration for the written contract set out by appellee, and that there was no agreement whatever to take the building for the year 1914. The trial court on this issue, under the evidence, was not warranted in instructing a verdict for appellee on the ground that the oral contract was conclusively proven. Evidently the trial court so instructed the verdict on the fact that appellant, as the tenant of appel-lee, held over the premises after the expiration of the term under the written lease. It is admitted in the pleadings, and the fact is uncontroverted, that the written lease expired January 1, 1914, and that appellant remained in possession of the premises until January 15, 1914. The written lease in this case stipulates that appellee leased to appellant the premises “for the term of eight months, beginning on the first day of May, 1913, and expiring on the first day of January, 1914. * * * At the end of this contract party of the second part (appellant) shall have the refusal of same property for twelve months longer.” The appellant agreed to pay for such lease “the sum of $800.00 and no/100 dollars, at Paducah, Texas, as follows: $100.00 on the first day of June, July, August, September, October, November and December, each respectively, 1913; and $100.00 on January 1, 1914.” The facts in this case show that the appellant, before the expiration of the term of the written lease, rented another building from a Mr. Craven, in which to move its goods. The appellant notified appellee that they would not want the building for 1914, and that they had rented another building. For the purpose of discussing the other questions involved in this case we make the following quotations from the record: Whittington, the appellant’s manager, testified:

“Mrs. Sayres never did claim at any time before I vacated the building that she had a contract with me that bound me to keep the building for 1914. The first time I heard of any such claim on her part was when they served the subpoena on me in this case. Along about the first days of December, some time just after the 1st of December, Mrs. Sayres came in the store and called for me one day. I went down and she asked me if I wanted to renew the contract for another year. I told her no. She asked me if I wanted the building for another year. I told her I did not know whether I wanted it or not for sure, that Mr. Street would be over here in a few days — he is one of our concern — he is president of the company and lives in Graham. I told her I was looking for Mr. Street. We were figuring on some other propositions, and I would not make a contract until he came over. She said she would like to renew the contract. I told her one thing I knew I wanted; if we stayed there .would be cheaper rent, and she answered me by saying she did not want to rent it cheaper if she could help it, and I told her I did not want to pay the price if I could help it. I called her up immediately after we closed the deal for another building. I do not remember the exact date, but it was somewhere between the 15th and 20th of December, not later than the 20th. It was between those dates. Mr. Street had been here, and I called Mrs. Sayres and told her that we had made a deal for another building and would not want her building for another year. We would vacate the building about January 1st. She did not, at that time, claim to me that she already had it rented to me for the year 1914. She made no protest at all. The first time I saw her with reference to the building was.about the 3d of January. On the 3d of January, I think she came in the store and asked me if I wanted the building during the month of January, and I told her I would not want it all the month — that I wanted it for a few days until I could move, and that Mr. Jones was vacating the building we were to occupy that day. As soon as I could have some shelves arranged in his store we would move out. She said that the reason' she wanted to know was that she had the building rented to a party for $200 a month that wanted it on the 1st of January. Inasmuch as I could not give possession of the building at that time, she would expect me to pay $200. I told her I would not pay it, and she walked out. I paid her $50 for the half of the month of January that I occupied the building. I left it at the First State Bank in a check, just the same as I had instructions to leave all the rent. About the 1st of February, it might have been a day or so after the 1st, I got a statement one day by mail, ‘Rent for the month of January, $100.00,’ and I wrote her a note and explained that I had left her rent at the bank, so the next day I called her and asked her if she got my note, and she said she had not, and I told her I called to explain to her that I left her $50 rent to the 15th of January at the First State Bank, and she said she did not know I had done that, and I told her I had and asked her if it was satisfactory, and she says: T will see about it.’ That is the last conversation I ever had with her concerning this rent.”

Miss Bertha Winton testified that she heard the bonversation between. Whittington and Mrs. Sayres early in January, in which Mrs. 'Sayres told him that she had rented the building to another party for $200 a month.

Mrs. Sayres testified that she went to Whit-tington and told him that she heard that appellant was going to move out of the building, and wanted to know what he meant by it, and he said that he did not know whether he.was going to stay, that he could not pay as much rent as they had been paying, and she stated she could not let him have it for any less, and that Whittington did not notify her that they would not want the building for 1914 until about the 25th or 26th of December, 1913, and that he then told her he would not want the building, that he was going to move out, and said he would be out by the 1st, and did not say about the 1st.

Mrs. Sayres further testified that she had told Mr. Whatley that she could rent the building for $200 if she had it on the 1st of January; that she thought she could get a party in it, but she did not then have any. This $200 party was through a second party, she says, and that she spoke to them to see the party. •

“Mr. McAdams was going to get another party. He thought they would pay $200. He had told me about it. He was in the hardware business. I told Mr. McAdams about it after I found out the building was left on my hands. I did not tell Mr. Whatley that I had a written contract with Street-Whittington.”

The appellant’s first assignment is to the action of the court in overruling appellant’s first exception to the petition. The proposition presented is to the effect that a contract for the lease of real estate for a longer term than one year is void unless in writing. It was held by our Supreme Court that a lease for a term not longer than one year may be made.to commence in the future by a verbal contract. Bateman v. Maddox, 86 Tex. 546, 26 S. W. 51. • The particular allegation referring to the oral contract to which appellant urges the exception is that the term was to be “at least one year.” It wili be noted from our statement of the pleadings that this phrase is immediately followed by an allegation of the term which was to begin January 1, 1914, and continue to January 1,1915. The court properly overruled the exception.

We shall not set out the various assignments assailing the action of the court in peremptorily instructing a verdict for the appellee, but give our views of the case as presented by the record in this ease. As we gather from the brief of appellee, the fact that appellant held over the premises until January 15, 1914, it is contended is sufficient to conclusively prove that it had exercised its option which the contract gave it to take the property for another year.

The clause, “at the end of this contract, party of the second part shall have refusal of same property for twelve months longer,” is construed by us to be an option given to the tenant for a renewal of the lease of the premises for the twelve months on the same terms and rental as given by the contract at appellant’s election. If not so construed, the clause would be ineffectual for any purpose. The rent for which the premises should be had for the 12 months succeeding the end of the term stipulated in the contract is not specifically na,med, and a contract to be rehewed upon such terms as might be agreed upon would be uncertain, and for that reason unenforceable. Whatever ambiguity there may be in the words of the covenant, the intention of the parties to be collected from them, considered in connection with the whole instrument, obviously was that appellant, at its election, should have a renewal of the premises for one year, to commence at the .expiration of the existing lease, for the same rent as the former, payable monthly. Tracy v. Albany, 7 N. Y. 472, 57 Am. Dec. 538.

In this case it appears that appellant had elected not to take the premises for the next succeeding 12 months, and had so notified appellee before the end of the term. In the condition of the record we do not believe the trial court authorized to assume that, because there was a holding over after the end of the term, it conclusively appeared appellant had elected to retain the premises under the covenants for renewal. If the evidence does not conclusively show that appellant had not made such an election, it at least was sufficient to raise the issue, which should have been presented to the jury for their finding. As suggested, the written contract had in it a covenant to renew the lease at the option of the tenant.

We are inclined to interpret this clause as requiring a new lease, and not a mere extension for an additional term. This is clearly the interpretation of a clause almost exactly like the one in question in the case of Tracy v. Albany, supra, and similar to the clause in the case of Grant v. Collins, 157 Ky. 36, 162 S. W. 539. Whether this is true or not, however, the weight of authority appears to be:

“Where a lease provides that the tenant may have, at his option, an extension for a specified time after the expiration of the term agreed upon in the lease, or may occupy for an extended term, including the term specified, the mere holding over after the expiration of the specified term will constitute an election to hold for the additional or extended term, and the tenant, after holding over beyond the first term without any new arrangement, is bound for the additional or extended term as fully and completely as though that term had been originally included in the lease when executed.”

So, also, it has been said:

“A mere holding over and payment of rent had been held sufficient evidence of an election to renew, as distinguished from an election to extend, to justify the landlord in holding the tenant for the additional term.”

Note to Kuhlman v. Lemp, etc., 29 L. R. A. (N. S.) 174.

Some courts make a distinction between extension and renewal, which difference is stated by the text-writers, and some of which are quoted in Grant v. Collins, supra; Taylor on Landlord & Tenant, § 332; Wood on Landlord & Tenant, § 416. Also see Tiffany on Landlord & Tenant, vol. 2, p. 1514, §§ 218-223; Andrews v. Marshall, etc., 118 Iowa, 595, 92 N. W. 706, 60 L. R. A. 399, 96 Am. St. Rep. 412.

In this case the contract being one for renewal for the term specified, the law will require proof of an agreement for such renewal, and whether holding over alone would be sufficient evidence, or a presumption of such an agreement, it is nevertheless not a conclusive presumption, but may be rebutted. If the facts show that such holding over was not intended by the parties to renew the lease, then appellee would not be entitled to recover for the full term specified in the option. Even if the contract shall be held a mere extension of the lease, some courts hold the holding over—

“is a piece of evidence—a strong piece, of evidence—a piece of evidence sufficient of itself,, if unexplained and Uncontrolled, to raise a.fair inference and presumption that the option has been exercised, and thus to make out a prima facie case. But this is the most that can be said of it, and it is still competent for the tenant to offer opposing evidence.” Atlantic National Bank v. Demmon, 139 Mass. 420, 1 N. E. 833.

In Racke v. Anheuser, etc., 17 Tex. Civ. App. 167, 42 S. W. 774, there was an option given for two years, and notice by the tenant that it would not lease for the additional term of two years. It appeared that the option was not intended to be exercised to take further lease. It was there held the option would not be part of the lease, and that the holding over created only a tenancy for one year. It should be noted in that case the question of holding over and liability thereunder for one year’s lease was treated by the court as res adjudieata, and the law with reference to that question was not discussed. We think that ease is conclusive of the question here, even though appellant held over, yet it did not do so under the terms of the option, but if liable, it is so under the general rule with reference to holding over by a tenant after the expiration of his lease. Williams v. Houston, etc., 46 Tex. Civ. App. 70, 101 S. W. 839, 1195. If the trial court instructed a verdict upon the theory that the holding over was an election to take the premises under the option, then we think in the light of the testimony in this record he was in error.

The appellee did not set up in her pleadings the clause giving the option and assert an elecfion thereunder by appellant, and for that reason a verdict on this clause, would not be authorized.

On the question of appellant’s liability for one year’s rent, by reason of holding over under the rules of law governing such cases, independent of the option, we have concluded under the facts the court should have submitted that issue to the jury. The leading case in this state on the question is the City of San Antonio v. French, 80 Tex. 575, 16 S. W. 440, 26 Am. gt. Rep. 763. The Supreme Court quotes several authorities, and among which is an English author, and as follows:

“But, * * * at the end of the lease, if the tenant holds over, he holds as a tenant at sufferance, still if, when the period for the payment of rent becomes due, he pay the landlord the rent reserved by the expired lease, he becomes a tenant from year to year; the payment of such rent by him, and the receipt of it by his landlord, being considered indicative of their mutual intention to create a yearly tenancy.”

The court also quotes from Dorill v. Stephens, 4 McCord (S. C.) 59, as follows:

“When a tenant holds over after the expiration of the lease, with the tacit consent of the landlord, the law implies an agreement on the part of the landlord that he will let, and on the part of the tenant that he will hold, on the terms of the expired lease, * * * thus substituting the contract with respect to the term which is passed for that which is to come, not merely in form, but in its effect and substance.”

Can it be said in this case that there was a tacit consent of either the landlord or tenant to so continue? The tenant asserted he would not take the property for one year, and that he had rented another place and notified the landlord it would leave so soon as the other was ready, stating it desired to occupy the house until such time. The landlord did not object or protest and thereafter demanded $200 for the month of January— a different rent to that provided for in the original contract. If *these facts are true, how can it be said the terms of the past contract were substituted for that which is to come by either the landlord or tenant? Upon what can the law imply such intent? The general rule is stated to be that the option is with the landlord to treat the holdover either as a tenant or as a trespasser, and that the purpose or desire of the tenant is not to be considered in determining, the question. This is not the universal rule, but it is sustained by a decided weight of authority in America. Some courts have rigorously enforced the rule, as for instance where the tenant held over for but a day or so, or was unable to leave on account of sickness or the like;- others have been more liberal.

“In England and in one, if not more, of the states of this country, the courts have not recognized an option in the landlord thus to hold the tenant for another period merely because he wrongfully obtains possession during a part of that period, they applying in this case, as in others, the rule that a tenancy can be created only by the consent of the parties thereto.” Tiffany on Landlord & Tenant, vol. 2, p. 1471, § 209; American & Eng. Enc. of Law, vol. 18, p. 407 (2).

If a tenant holds over for some purpose by permission of the landlord, he will be liable only for the period occupied. A tenancy at will or periodical tenancy may arise when the tenant holds over with the permission of the lessor. American & Eng. Ency. of Law, 407 (3); Tiffany on Landlord & Tenant, vol. 2, p. 1470, §§ 208, 209. Where the tenant remains over with the tacit consent of the landlord for a purpose known to the landlord at the time, such as negotiating for a new lease or under agreement to make improvements or the like, he will not be held liable as a hold-over. Abeel v. McDonnell, 39 Tex. Civ. App. 453, 87 S. W. 1066; Williams v. Houston, etc., 46 Tex. Civ. App. 70, 101 S. W. 839, 1195; Minor v. Kilgore, 38 S. W. 539; Leggett v. Louisiana, etc., 157 Mo. App. 108, 137 S. W. 893, and note to Turner v. Wilcox, 40 L. R. A. (N. S.) 498. In the case of Shipman v. Mitchell, 64 Tex. 174, the Supreme Court held if notice was given to the tenant by the landlord that after the expiration of the term he would be permitted to hold from month to month, such notice would rebut an implied contract to hold under the old lease. The tenant would be presumed to have assented to the proposition, and would remain on the premises as a tenant at will. “The presumption of a continuance of the tenancy upon the same terms, or of the character of tenancy from remaining in possession after the expiration of the term, is a rebuttable one, although it will not be overcome merely by the intention of the tenant, and it will not conclude either party as against the proof of a different agreement between the landlord and tenant or of facts which are inconsistent with the presumption.” 24 Cyc. 1014(B); Puckett v. Scott, 45 Tex. Civ. App. 392, 100 S. W. 969; Tiffany on Landlord & Tenant, vol. 2, § 210, on page 1486, especially at note 89. We quote the note, which appears to us to announce a correct rule;

“So where the overholding tenant’s offer of a certain rent was refused, but to his proposal to pay the rent till he found another place the landlord made no reply, and the property was placed by the latter in the hands of his agent to rent to another, it was held that there was a tenancy in accordance with the tenant’s proposal till he found another place” (citing Hoffman v. McCullum, 93 Ind. 326; Lally v. The New Voice, 128 Ill. App. 455; Montgomery v. Willis, 45 Neb. 434, 63 N. W. 794).

The trial court instructed the jury to find the full amount sued for; that is, rent at $100 per month, less the amount for which the property was rented to other parties, which would have left due for the 12-month term, $580, the amount sued for. The term of the original rental contract was 8 months. Appellant presents the proposition that a tenant holding over is only liable for a term equal to the term of its original lease. It has been generally held that when a lease is for the term of one year or more, the holding over will be presumed for a year. If the original term was for a number of years, an implied contract will not be presumed to extend for a longer term than one year, since such would be invalid under the statute of frauds. Roller v. Zundelowitz, 32 Tex. Civ. App. 165, 73 S. W. 1070. In the French Case, 80 Tex. 575, 16 S. W. 440, 26 Am. St. Rep. 763, supra, it is said;

“The tenant who holds over with the consent of his landlord is deemed to be in possession upon the terms of his prior lease, upon the ground that the parties are presumed to have tacitly renewed the former agreement.”

If such is the presumption, then in holding over in this case the parties renewed the former agreement for eight months. We cannot see upon what theory the law will presume a longer period than the original agreement. We are aware there are a great number of cases which appear arbitrarily to fix the extended period at one year. We are inclined to follow the rule that where the contract provides for a term less than one year, in holding over the tenant will not be held to a longer term than that provided for in the contract of tenancy. Kaufman v. Mastin, 66 W. Va. 99, 66 S. E. 92, 25 L. R. A. (N. S.) 855, and notes under that case which collate a number of authorities. Leggett v. Louisiana, etc., 134 Mo. App. 175, 114 S. W. 92.

It is suggested by appellee that the facts in this case do not show an agreement to allow appellant to remain until it could get possession of the property which it had rented from Craven. We think if the appellee, by her words or conduct, induced the appellant to believe that he had her consent to remain until he could move into the other building, then she could not hold appellant under an implied renewal or an implied contract for the term. If the appellant made the proposition to appellee to remain in the house for a short time for the purpose of preparing the other place and appellee made no objection thereto, the jury might therefrom be able to presume that she assented thereto. We desire to say that the plea of holding over in plaintiff’s petition, in our judgment, is not such as is required under the law. We think the appellee should at least allege that she exercised her option as lessor to hold appellant a tenant rather than as a trespasser. We think the record in this case presents the issues: First, was there an oral agreement entered into as alleged by appellee? Second, did the appellant exercise its option to renew the lease for 12 months? Third, did it remain on the property until it could get the house leased in which it was to move prepared? And. did appellee assent thereto? Or were her words or conduct such as to induce appellant to believe that in remaining on her property he did so by her consent? We think the evidence in this record is sufficient to have taken the case to the jury. We overrule the second proposition under the fifth assignment.

For the reasons above pointed out, the case will be reversed and remanded.
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