An Adverse Possession or Real Estate Lawyer in Texas can help explain the law of adverse possession in Texas. Adverse possession in Texas is controlled by statute, but as with any statute, case law helps understand how courts apply the law. Dupuy v Dicks was decided in 1919, but still has some interesting takeaways. This case sheds light on some interesting questions surrounding adverse possession, including the sufficiency of the deed giving rise to a claim under the five year statute, when tacking is not recognized, when tacking is recognized, what privity is in the context of adverse possession, and when a delay in filing the deeds breaks up tacking.
The facts are as follows:
- March 3, 1851 Deed to Ann Albright (as separate property)
- April 4, 1951 Deed from Ann and William Albright to Isaac Kirksey. The deed is fatally defective, due to a defective acknowledgement
- Isaac Kirksey put “negroes” and an “overseer” on the property, used to prove cultivation of the land
- Isaac’s son, Granville Kirksey, took possession and cultivated the property until 1855
- Isaac’s other son, Dr. JE Kirksey, took charge in 1855 and controlled the property until 1862, when he joined the Confederate army.
- At that time, Isaac’s other son, Dr. WSA Kirksey took charge until 1867.
- In 1867, Isaac’s son, Dan Rather, in law took charge.
- Plaintiff, Mrs. Georgia Kirksey Dicks, paid taxes from 1885 to 1890
Then the adverse possessors/trespassers begin flipping title back and forth, for the express purpose of obtaining title by adverse possession. Wolverton and Mckinzie were expressly found to have this intent.
- ME Mckinzie granted to Wolverton on 8/30/1910 . The deed was filed on 12/16/1910
- Wolverton granted to Hogg and Webb on 2/12/13 but filed deed on 12/24/13
- The court found that if Hogg and Webb had held for five years under this grant from the time of the recording, they would have met the five year limitation period, but they didn’t.
- Hogg and Webb granted back to Wolverton on 4/30/13 but filed the deed on 12/24/13
- The court found that if Wolverton had held for five years under this grant from the time of the recording, he would have met the five year limitation period, but he didn’t.
- Wolverton granted to JA Dupuy and ME Dupuy, as executors of AG Dupuy, on 11/8/13 and recorded on 12/24/13. Dupuy took possession on 11/8/13.
- The court found that if the Dupuys had held for five years under this grant from the time of the recording, they would have met the five year limitation period, but they didn’t, because Mrs. Georgia Kirksey Dicks sued on November 15, 1916.
The court noted that the void nature of the deed to Isaac Kirksey, was of no consequence and that the concept of adverse possession was meant to cure mistakes of this nature. Specifically, the Court said, “It now appears that [the property] was the separate property of the wife at the time the deed was made, and her acknowledgment being fatally defective the deed was void and passed no title; but notwithstanding this fact, such deed must be held sufficient to support the plea of limitation…It is not essential for the support of the plea of limitation that the deed under which the land is claimed and held should in fact convey title; all that is required is an instrument in the form of a deed purporting to convey the land, and not void upon its face.”
The Court said of the Dupuys successive possession, basically what one would think of when one considers tacking.
[JE Kirksey] took charge and controlled the property until he went into the Confederate army in 1862 is that he continued the use and cultivation of the land which had been begun prior to his father’s death, and that the subsequent possession and occupancy of the property by his brother and brother-in-law was of the same character.
This possession and occupancy of the land by the Kirkseys having covered a period of five consecutive years prior to the suspension of the statute on January 28, 1861, and having been accompanied by the payment of taxes on the land and under a deed duly recorded, the title became vested in the Kirksey estate.
It appears that the Dupuys argued that Wolverton had acquired adverse possession under the five-year statute. They also tried to use the same tacking concept that the Kirksey’s used to argue that their possession should relate back to Wolverton’s possession in 1910. The Court says that the Dupuys could have established title if 1) any predecessor could have established title by limitations and 2) the Court does not expressly mention tacking, even though tacking was already recognized in Texas law. Brownson v. Scanlan (1883) 59 Tex. 222; Medlin v. Wilkins (1883) 60 Tex. 409; Cook v. Dennis (1884) 61 Tex. 246.).
On it’s face, the case is clear that none of the Dupuy’s predecessors could establish title by limitations on their own. That is simple enough.
However, it is difficult, at first glance, to understand why Dupuy was unable to prevail under tacking. The Court clarified, however, “The failure of Hogg and Webb to record their deeds from Wolverton within a reasonable time after their execution destroyed the previous adverse possession of Wolverton, and the failure of Wolverton to record his deeds of reconveyance to him from Hogg and Webb within a reasonable time destroyed the previous adverse possession of his said grantors.”
It is tempting to think the Court is engaging in a sleight of hand to tip the scale in favor of the original owners, especially since the Court does not mention tacking at all. Here, the Court seems to place an additional burden on adverse possessors, namely, that a failure to record a deed in a reasonable time will destroy all of his prior adverse possession. On the other hand, the Court appears to develop a sound evidentiary principle by establishing this requirement.
Without such a requirement, parties could, for example, record three deeds on December 31, 2017, and make it appear that they had all possessed a property over the course of the past five years, when they really had not. The court may simply not be entitled to believe that the alleged possession in 1913 by three different parties actually occurred if there is no timely recordation of the deeds. It does appear that there was a bunch of deed flipping back and forth by some slick actors, who probably did not possess the property. In short, the Court appears to create a subrule that when possession from one adverse possessor to another, a deed must be recorded timely to reflect as much. That rule appears to be in keeping with the requirement of privity, and may just be an evidentiary requirement to prove privity. That rule seems fair, as subsequent adverse possessors could simply conspire and falsify deeds to support a claim of tacking.
An explanation of privity is given below, but, briefly, unlike in other ares of property law, privity, in the adverse possession context, means that a prior possessor intended to pass their prescriptive rights on to their successor, and that there was no gap in possession. Further some case law states that trespassers can never gain adverse possession rights. Finally, at least one secondary source, without citing authority, gives examples as to what would preclude privity.
- each predecessor have the same type of possession and/or use required by the statute
- no interruption in possession occurs when one possessor leaves and another enters and
- transfer between the possessors is by agreement, gift, will or inheritance. A quitclaim between the possessors suffices.
See Tierra Grande Real Estat Journal Publication 1776.
Privity of estate, as said in section 89, vol. 2, Tex. Jur., is shown under the following circumstances: ‘Privity of possession between successive occupants or possessors of the land is shown to have existed, apparently, by proof that the earliest occupant’s possession and claim passed or was transferred to the later occupant by agreement, gift, devise or inheritance. The fact of privity is not established where it simply appears that the land was occupied by different persons successively, there being nothing to show that the claim of the earlier was transferred to the later occupant by contract or otherwise.’ McAnally v. Texas Co., 124 Tex. 196, 76 S.W.2d 997, 1001 (1934).
“In determining the privity of estate by the process of tacking, C. J. vol. 2, p. 91, § 96, states the general rule: ‘The general rule is that possession cannot be tacked to make out title by prescription where the deed under which the last occupant claims title does not include the land in dispute. It must clearly appear that the particular premises were embraced in the particular deed or transfer, in whatever form it may have been made.’ Id.
As between a purchaser and seller, adverse possession does not begin to run until payments have ceased:
They say that defendants’ motion is insufficient to show that no fact issues exist as to adverse possession because defendants allege that plaintiffs’ payment of rent to Gunstream after the trustee’s sale was a recognition of Gunstream’s title, whereas plaintiffs testified in their deposition that they were making ‘house payments’ rather than ‘rent payments.’ This argument is without merit. It is immaterial whether plaintiffs regarded these payments as rent or as payments on the purchase money indebtedness, since, in either event, their possession was not adverse to Gunstream. When a deed reserves a vendor’s lien for unpaid purchase money, possession of the vendee is not adverse to the superior title of the vendor, and limitation does not run against the vendor by the vendee’s possession until the purchase price is paid or unless the vendee gives the vendor unequivocal notice of repudiation of the vendor’s superior title. Roosevelt v. Davis, 49 Tex. 463, 473 (1878).Calverley v. Gunstream, 497 S.W.2d 110, 115 (Tex. App.—Dallas 1973, writ ref’d n.r.e.)