author: MURRAY, Justice. NORVELL, Justice.

text:
    PEAL v. LULING OIL & GAS CO. et al.
    No. 10491.
    Court of Civil Appeals of Texas. San Antonio.
    July 26, 1940.
    Rehearing Denied Eeb. 14, 1940.
    Second Motion for Rehearing Denied March 6, 1940.
    Kazen & Kazen and Mann & Mann, all of Laredo, and Black, Graves & Stayton, of Austin, for appellant.
    George Cannon and Harold A. Neuhaus, both of San Antonio, for appellees.
   MURRAY, Justice.

This suit was instituted by J. B. Peal, as plaintiff, against Luling Oil and Gas Company and others, as defendants, to remove cloud from the title to a one-half royalty interest in a certain 70.236-acre tract in Duval County, and, in the alternative, to reform (because of mutual mistake) the description incorporated in a royalty conveyance executed by appellant, Peal, to appellee, Luling Oil and Gas Company, so as to exclude such 70.236-acre tract from such royalty conveyance.

Magnolia Petroleum Company is the owner of an oil and gas lease executed by appellant, Peal, prior to the time of the execution of the royalty conveyance in question to the Luling Company. The Magnolia lease covers the 70.236-acre tract in dispute, as well as other lands. The validity of the Magnolia lease is not questioned. The dispute is between Peal and the Luling Company, and it involves the question of who is entitled to one-half of the royalties produced under the Magnolia lease upon the 70.236-acre tract, or, in other words, whether or not the 70.236-acre tract was included in the royalty conveyance.

The trial was to a jury but at the con-elusion of the evidence the court granted Luling Company’s motion for an instructed verdict. Judgment was entered decreeing, among other things, that Peal take nothing by reason of his suit. J. B. Peal has prosecuted this appeal from that judgment.

The real question to be here decided is whether or not the 70.236-acre tract herein involved is included within the description of the land set forth in the royalty deed from Peal to Luling Company, dated April 11, 1936.

The description contained in that conveyance is as follows:

“The East half of the Southeast quarter of Survey 72, Certificate 436, Block 1, Original Grantee C. C. S. D. & R. G. N. G. Railway Company, which East half of the Southeast quarter of such Survey contains eighty (80) acres of land, more or less, which land is situated partly in Webb County and partly in Duval County.
“Also the following described portion of Survey 383, Certificate 36/99, Abstract No. 1914, Original Grantee Mary H. Chatham, situated in Duval County, Texas, which portion of said Survey 383 covered by this lease is described as follows:
“Beginning at the Northeast corner of above described Survey 72 for the Northwest corner hereof;
“thence East along the South boundary line of adjoining Survey 115 and an extension thereof to the East to a point in the West boundary line of Survey 796 for the Northeast corner hereof;
“thence South along the West boundary line of said Survey 796 to its Southwest corner for the Southeast corner hereof;
' “thence West along the North boundary line of Survey 794 and an extension thereof to the West to a point in the East boundary line of said Survey 72 for the Southwest corner hereof;
“thence North along the East boundary ime of said Survey 72 to the place of be-gmnmg, and containing one hundred and forty three (143) acres of land, more or *ess- ’ ■

The above description was prepared by G. C. Mann, Esq., an .attorney of Laredo, after the land had been indicated to him on what is called in the record the Luling map, by the drawing of a red line around the land, a royalty interest in which was to be conveyed by Peal to the Luling Company.

The trouble here arose as a result of Surveys 796 and 794 not being located on the ground as they were supposed to be located, and as they were shown to be located by the official map in the General Land Office. The land covered by the royalty deed is in Survey 72, and Survey 383. There is no dispute about the location of part of the land which lies in Sur-vey 72. The entire dispute is with reference to the land located in Survey 383.

Below is a sketch showing the relative position of the various surveys, which sheds light upon the land involved:

dicates the land ciaimed by Luling Company> while the rectangle A. E. F. and G. is the land whidl peal contends was described by the royalty deed. Thus the question arises in the tract E. B. C. D. G. F. in-eluded in the royalty deed. The dotted lines show the supposed location of Surveys 796 and 794 at the time the royalty deed was executed. The land included in the rectangle A. B. C. and D. in-

It will be noted that there are no calls for course and distance, nor for specific number of acres. All calls are either to follow certain boundary lines, or the extension thereof, or for adjoinder. If the description of the land is applied to the calls for adjoinder as Surveys 796 and 794, as they were supposed to be located at the time the deed was executed, then Peal’s contention would be correct, but if the description is applied as those surveys were found to be actually located upon the ground, then the contention of the Luling Company must be upheld.

We have concluded that the description must be applied as Surveys 796 and 794 are actually located upon the ground, and that it cannot be applied as they were supposed to be located.

In arriving at this conclusion we first consider that there are no calls for course and distance, nor is there any call for a specific number of acres. The parties first agreed that the land should be surveyed and the number of acres determined and the consideration paid accordingly, but later this was abandoned and settlement had on the original estimate of 143 acres; the parties agreeing, in effect, that if there were more acres Peal would be the loser, and if there were less acres Luling Company would be the loser. Therefore, the calls for adjoinder and to follow certain survey lines is all the description we have.

We do not have here a conflict between course and distance and a call for ad-joinder, as was the case in State v. Sullivan, 127 Tex. 525, 92 S.W.2d 228, and other similar cases. Here, if we disregard the call for adjoinder we have nothing. It is not a case of a conflict in calls, one of which must be disregarded, but a case where you must give weight to the call of adjoinder or render the description meaningless.

There is, however, .some difficulty in applying the description on the ground, when Surveys 796 and 794 are given their true locations. There is no difficulty about the starting point. The northeast corner of Survey 72 is a definitely known point and easily located on the ground, as is also the south boundary line of Survey 115. The first call is as follows: “thence East along the South boundary line of adjoining Survey 115 and an extension thereof to the East to a point in the West boundary line of Survey 796 for the Northeast corner hereof.”

It is apparent that when you go east along the south boundary line of Survey 115 and an extension thereof you will never reach the west boundary line of Survey 796, if Survey 796 is given its true location on the ground, but you would reach an extension of the west boundary line of 796 extended to the north. We conclude that in keeping with the testimony given by the surveyors this west boundary line should be extended to the north so as to complete this first call with an intersection of such extended line.

The second call is as follows: “thence South along the West boundary line of said Survey 796 to its Southwest corner for the Southeast corner hereof.” The question here arises, are you going to the southwest corner of Survey 796 as it was supposed to be located, or as it is actually located? We have concluded that in the absence of any call for distance you must go to the true southwest corner of Survey 796.

The third call is as follows: “thence West along the North boundary line of Survey 794 and an extension thereof to the West to a point in the East boundary line of said Survey 72 for the Southwest corner hereof.” It is true that when you leave the true southwest corner of Survey 796 and pass along the true north boundary line of Survey 794 and an extension thereof, you do not arrive at a point in the east boundary line of Survey 72, and in order to complete this call you would have to extend the east boundary line of Survey 72 to the south. We have concluded this should be done.

There is no trouble with the fourth call when you follow along the east boundary of Survey 72, as thus extended, and the east boundary of 72 to the place of beginning.

The only trouble in the field notes is caused by the fact that the map prior to 1936 showed the north boundary line of Survey 796 to be north of the south boundary line of Survey 115, while its true location on the ground is south of Survey 115, and the north boundary line of Survey 794 to be north of Survey 72, while its true location on the ground is south of Survey 72.

We have arrived at the above conclusions because it is apparent from the description given in the royalty deed, when taken in connection with all the surrounding facts and circumstances, that it was the intention of the parties to describe all of the land located in Survey 282 lying generally between Surveys 796 and 72, which was south of the south boundary line of Survey 115 and an extension thereof to the east, and north of the north boundary line of Survey 794 and an extension thereof to the west. This is true because there were no calls for course and distance, nor for objects on the ground, nor for specific number of acres, and the only calls were to follow certain survey lines and for ad-joinder of surveys which were senior to Survey 383.

In placing the above interpretation on the description contained in the royalty deed we have followed the rules laid down in the following cases: Stafford v. King, 30 Tex. 257, 94 Am.Dec. 304; Lilley v. Blum, 70 Tex. 704, 6 S.W. 279; Miller v. Southland Life Ins. Co., 68 S.W.2d 558; Gulf Production Co. v. Spear, 125 Tex. 530, 84 S.W.2d 452.

We can come to no other conclusion than that there being no call for distance, and no call for a specific number of acres, the call for adjoinder must be given effect.

The judgment is affirmed.

On Motion for Rehearing.

NORVELL, Justice.

In the motion for rehearing filed herein the appellant presents, among others, the contention that if the evidence in the case is not sufficient to establish appellant’s right in and to the property sued for, it was nevertheless sufficient to raise a fact issue with reference to appellant’s alternative count seeking a reformation of the royalty deed involved. Stated another way, it is contended that there was a jury issue as to the existence of a mutual mistake between the parties.

The matters of law involved are comparatively simple. The mistake in order to justify a reformation must be mutual. 36 Tex.Jur. 746 and 750. It was therefore the burden of appellant to present evidence which would sustain a finding, or group of findings, by a jury, supporting the contention that the appellee, Luling Oil & Gas Company, intended to purchase the tract of land shown on the map included in the original opinion which is bounded by the letters A. E. F. and G.

Upon the trial, the following agreement was made by the parties: “It is further agreed that plaintiff (appellant) is not questioning the title acquired by defendant (appellee), Luling Oil and Gas Company, to the 80 acres of Survey 72, described in the royalty conveyance involved in this suit, and that the only dispute is the 70.236 acre tract of land out of Survey 383, described in plaintiff’s pleadings.”

The 70.236-acre tract of land covered by the stipulation is that tract indicated by diagonal lines on the map contained in the original opinion. This agreement eliminates any question of rescission. 7 Tex. Jur. 1011.

The question presented is whether or not there is sufficient evidence in the record to support a jury finding that the Luling Company did not intend to purchase the particular tract of land designated by the diagonal lines upon the map as above mentioned.

We have come to the conclusion that the evidence would be insufficient to support such a finding. In order to make clear the basis for such a holding it is necessary to state some additional facts disclosed by the record.

Appellee’s brief herein contains a statement as to the various positions and locations of surveys surrounding Survey No. 383, which is involved here. This statement has been examined by us and found correct, and is as follows:

“On May 10, 1886, in the vicinity of the Webb and Duval County lines, there existed four tiers of surveys. The north tier of surveys extended southward to the southern boundary line of Surveys 901 and 902, which were laid down on the ground by Samuel M. Jarvis on October 25, 1876. To the south, and not adjoining the north tier of surveys, was another tier of surveys consisting of surveys 733, 734, 789, 790, 791, 792, 793, 794, 795 and 796, which were actually surveyed on the ground by Samuel M. Jarvis during the period of time from January 22, 1876, to March 16, 1876. To the west, and adjoining both the south and north tiers of surveys, there existed a tier of surveys consisting of Surveys 116, 115, 72, 73, 114, 111 and 110, all of which were actually surveyed on the ground in September, 1879, by A. M. French. To the east, and adjoining Surveys 795 and 793, there existed another tier of surveys consisting of Surveys 36, 35, 34, 33, 37 and 40 (all surveyed by J. J. Dix in September, 1878), which, to the north, adjoined the Duval County School Land surveyed by French in 1880 which, in. turn, adjoined the east line of Survey 901. * * *
“On May 10, 1886, J. J. Dix located ‘fill-in’ Surveys- Nos. 321 and 322, taking up the east portion of the unappropriated public domain lying between the aforementioned north, south, west and east tiers of surveys. . * * *
“On May 13, 1886, when J. J. Dix located Survey 383, there existed the following situation: senior surveys had been placed on the ground to the north, south, west and east. The State of Texas was obligated, under Confederate Land Scrip issued to Mary H. Chatham, to locate a section of land for her. Accordingly, John J. Dix, as District Surveyor of the Duval Land District, was instructed by the State of Texas to locate vacant public domain and to survey same for Mary H. Chatham. Having formerly located on the ground the most easterly tier of surveys, and knowing that vacant public domain remained, Dix located Survey 383 on May 13, 1886, a portion of which is the land now in controversy, filling in and taking up all of the vacant lands lying in between and being bounded by these older tiers of senior surveys, except on the extreme south. * * *
“On November 8, 1907, Survey 383, under the Dix field notes of 1886, was awarded, by the State of Texas to one Juan Guzman, * * *. On January 29, 1910, Juan Guzman conveyed Survey 383 to J. B. Peal. * * *”

At the time of the transaction whereby Luling Company acquired a royalty interest in Survey 383 from Peal no patent on said Survey had been issued by the State of Texas. The attorney for Luling, upon examination of the abstracts, required that Peal file his deed from Guzman in the General Land Office and that any remainder of the purchase price due to the State of Texas be paid and patent issued to J. B. Peal, in accordance with field notes to be disclosed by a survey on the ground.

The attorney for Luling also pointed out that there was a possible conflict between Surveys 383 and 115, and this was given as an additional reason for the requirement that “a competent State licensed surveyor survey the land on the ground.”

The attorneys for Peal wrote the Commissioner of the General Land Office with reference to securing a patent and were informed by the Commissioner that an excess was indicated and field notes were required to be furnished by the County Surveyor of Duval County, or some licensed land surveyor, and further that the amount due the State would vary according to the excess acreage shown by field notes.

It was originally agreed between the parties that the consideration moving from the Luling Company to Peal should be paid upon a per acre basis, the exact amount thereof to be determined by a survey upon the ground. However, prior to the making of the resurvey (and subsequent to the notification of a probable excess), Peal agreed to accept payment of the consideration upon the acreage basis set out in the royalty deed.

After the consideration had been paid, E. J. Foster, a State licensed surveyor, made a resurvey of Survey 383, which disclosed the fact that the Dix Survey and field notes of May 13, 1886, were incorrect in several particulars. The most serious error in the Dix field notes was the distance given for the east boundary line of Survey 383; that is, the distance from the south boundary line of Survey 901 to the north boundary line of Survey 796. The distances given for the west boundary line of Survey 383 were correspondingly incorrect. The distance from the south boundary line of Survey 901 to the north boundary line of 796, as given by Dix, was 1,274 varas. By a survey upon the ground, Foster found this distance to be 1,627 varas, a discrepancy of 353 varas.

The map referred to in the original opinion as the Luling map, was not prepared by the Luling Company but was evidently purchased from a civil engineer and map maker of Laredo, Texas. This map shows more than 80 surveys of an approximate average of 640 acres each, upon a scale of one inch to 1,600 feet. It is conceded by the parties that this map is incorrect and does not correctly show the position of Survey 796 as the same is located on the ground. This inaccuracy was apparently caused by a use of the Dix field notes, which were incorrect in the distances given on the east and west boundary lines of Survey No. 383, as above pointed out. The broken line upon the map contained in the original opinion indicates the south boundary line of Survey 796, as shown on the so-called “Luling” map. However, it clearly appears from the evidence that there was no doubt as to the exact location of this south boundary line upon the ground.

This Survey (796), as above pointed out, was located and surveyed by Jarvis in June 1876. The beginning point of the Jarvis Survey was a stake at the southwest corner of Survey 795 and the southeast comer of Survey 796.

Foster made a resurvey of 796 in June, 1936, and begun at the southeast corner of said Survey 796, and from these field notes it appears that the original Jarvis beginning point had been reestablished by J. J. Dix in the year 1892. Foster found the Jarvis field notes substantially correct. The southeast corner of the survey and the south boundary line thereof appear to be well es- ! tablished and their actual location is beyond dispute. The record shows that Peal’s fence runs along the east boundary line of Survey 794 to the south boundary line of 796, thence in an easterly direction along the south boundary line of 796 to the southeast corner thereof, and thence in a northerly direction along the east boundary line of Survey 796. It therefore appears that the southeast corner of 796 was also an outside corner of Peal’s fence line.

The testimony shows that the Luling Company intended to buy a tract of land in Survey 383, which would be bounded on the south by an extension of the south line of Survey 796 crossing Survey 383. The lines marked off on the Luling map indicate that this is true. Even though that map was incorrect in its portrayal of the distance between the south line of Survey 901 and the north line of Survey 796, the lines drawn thereon indicate that the parties intended to describe a tract of land bounded on the south by an extension of the south line of 796.

It further appears that one Mortimer drilled a well for oil, which well was located 330 feet north of the south boundary line of Survey 796 and 330 feet west of the east boundary of the west half of said Survey 796. It also appears that the Luling Company drilled a well in the northwest quarter of the southeast quarter of Survey 72. There is no doubt as to the location of the Mortimer well with reference to the true south boundary line of Survey 796.

Guy Ratliff, the chief geologist of the Luling Company, who conducted negotiations for the purchase of the royalty interest from Peal, testified that he indicated to Peal the tract of land on the Luling map which he desired to purchase, and in so doing he projected the north line of Survey 794 (which was the south line of Survey 796) in a westerly direction across Survey 383.

Mr. Ratliff, by his testimony, explained fully why he desired to purchase royalty under the tract of land having the south boundary indicated by him. His testimony shows that he intended to buy a tract of land which would be bounded upon the south by the continuation of a line lying 330 feet south of the Mortimer well and that he did not intend to buy a tract of land which would be bounded on the south by an east and west line which when extended would lie north of the Mortimer well.

Mr. Thomas W. Smith, vice-president and treasurer of the Luling Company, testified that the location of the tract of land in controversy with reference to the Mortimer well, as well as the Luling well, was an important consideration in his company’s decision to purchase the same.

The testimony of appellant, J. B. Peal, also indicates that the south boundary line of the tract which he discussed selling to Luling Company was the one deemed of importance to the parties. When asked to identify the tract of land upon the Luling map, he did so by extending the south line of Survey 796 across Survey 383 to a point where he supposed it would intersect the west line of Survey 72.

We therefore conclude that a jury finding to the effect that the Luling Company intended to purchase royalty under a tract of land in Survey 383, the south boundary line of which would lie a substantial distance north of the extended south boundary line of Survey 796 could not be supported by the evidence.

The motion for rehearing is overruled.

In view of the foregoing, appellant may file a second motion for rehearing, should he so desire.


source: Caselaw Access Project

author: BROWN, Justice.

license: Public Domain

text:
    ANDERSON v. HALL et al.
    No. 14033.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 16, 1940.
    Rehearing Denied March 15, 1940.

      Ernest May and Lloyd Hutcheson, both of Fort Worth, for appellant.
    Webb, Bransford & Matthews, of Fort Worth, for appellee B. G. Hall.
    J. Elwood Winters, of Fort Worth, for appellee Truman Jones.
   BROWN, Justice.

Appellant sued B. G. Hall, Truman Jones and C. H. Anderson in the County Court at Law No. 2 of Tarrant County, alleging that he owned, on or about December 16th, 1937, a certain two door master coach Chevrolet automobile of the value of $300. That defendant Hall was engaged in the business of trading and dealing in used ■cars in the City of Fort Worth, and the defendant Jones was likewise engaged in such business under some kind of agency or partnership arrangement with Hall. That on the date above given, the defendant C. H. Anderson, acting in behalf of his said co-defendants, proposed to plaintiff that he purchase from or through said Anderspn a 1937 Pontiac four door sedan, and trade in his said Chevrolet, at an agreed trade-in allowance of $300.

That the proposal was accepted and plaintiff agreed to pay a balance of $650 in monthly instalments, and that he was induced to part with his Chevrolet and to agree to the transaction, by reason of fraudulent representations made by C. H. Anderson of and concerning the said Pontiac: that he represented that the Pontiac was as good as new; that it had been purchased originally from the authorized Frontier Pontiac dealer in Fort Worth, and was used only as a family car in the said City from the time of its original purchase until the date of the proposed trade; that its original purchase price was $1,295, and that its value had been scarcely affected by its use.

That such representations were relied upon by the plaintiff when he agreed to the trade, but same were false, in that the defendant Hall had purchased the car from a used car dealer in the State of Arkansas, and it had not been operated only as a family car in the City of Fort Worth, but in fact had sustained hard usage prior to the time plaintiff agreed to purchase it; that it did not originally cost $1,295, but cost $1,095, and that its value had been materially affected by its prior use.

That plaintiff, after these false representations were made to him, executed a bill of sale on his Chevrolet, conveying same to defendant Truman Jones; that upon learning of the false representations made relative to the Pontiac car, plaintiff refused to accept the Pontiac and demanded the return of his Chevrolet, but the defendants have refused to deliver the Chevrolet to him.

By trial amendment, the plaintiff pleaded : That if -the defendant Hall was not a partner of the defendant Jones and acquired the Chevrolet automobile by purchase from Jones, that Hall was not an innocent purchaser thereof, but acquired same subject to the rights of the plaintiff.

The defendant Jones answered by certain special exceptions and ■ a general denial. The defendant Hall answered by certain special exceptions, a general denial and specially denied many allegations of plaintiff’s petition, and alleged that he purchased plaintiff’s automobile from Truman Jones, in the usual course of trade, for a valuable consideration and that he is an innocent purchaser.

Hall then pleaded in cross-action against his co-defendant Jones for whatever -sum he, Hall, should be compelled to pay the plaintiff, and alleged certain repairs done on plaintiff’s car and asked judgment for such sum.

The cause was tried to a jury. Plaintiff dismissed as to defendant C. H. Anderson, he not having been served with process.

The jury found, in answer to special issues submitted, the following: (1) that C. H. Anderson told plaintiff the list price of the Pontiac car was $1,295; (2) the statement was untrue; (3) that C. H. Anderson knew it was untrue; (4) that the representation was material and (5) plaintiff acted upon the representation; (6) that C. H. Anderson told plaintiff that the Pontiac car had been used only as a family car in Fort Worth; (7) such statement was untrue; (8) that C. H. Anderson knew it was untrue; (9) that such representation was material; (10) that plaintiff relied upon the representation; (11) that on December 16th, 1937, C. H. Anderson was an agent or employee of Truman Jones; (12) that he was acting within the scope of his employment on such date; (13) that C. H. Anderson was an agent or employee of B. G. Hall on December 16th, 1937; (14) and was acting within the scope of his employment; (IS) that the reasonable cash market value of plaintiff’s Chevrolet on or about December 17th, 1937, was $300; (16) that plaintiff sold the Chevrolet to Truman Jones; (17) that Jones sold the Chevrolet to Hall; (18) that when Jones sold the Chevrolet to Hall, plaintiff was asserting a claim to it, but (19) that Hall did not know of such asserted claim; (20) that Hall spent $86.35 for labor and materials repairing the Chevrolet car; (21) these repairs were necessary, and (22) were reasonable; (23) that B. G. Hall did not sell the Pontiac automobile to Truman Jones; (24) not answered under instructions as to Issue No. 23; (25) that plaintiff did not rely upon his own inspection of the Pontiac before he agreed to purchase it.

The defendant Hall filed a motion for judgment in his favor notwithstanding the verdict.

The trial court rendered judgment for the defendants Hall and Jones which recites, in substance, that the verdict was received and accepted and the jury discharged, and that Plall and Jones each duly filed a proper motion for judgment non obstante veredicto, upon the ground that there was no pleading on file and no evidence introduced to raise the issues submitted or to sustain the findings of the jury thereon, and on the ground that plaintiff wholly failed to plead, allege or prove that he was injured by the alleged fraud, and that there is no pleading and no evidence to raise and sustain any issue or finding as to any partnership or agency between Hall and the other defendants, that the court finds these contentions are true, and sustains the motion to disregard the jury’s findings on special issues 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14.

The plaintiff excepted to the ruling and to the judgment of the court and promptly gave notice of appeal to this Court, and perfected his appeal.

There is no motion for judgment notwithstanding the verdict in behalf of defendant Jones, in the record before us.

The special exceptions and demurrers of the defendants Hall and Jones were not ruled upon by the trial court, and the plaintiff’s pleading must stand for' what it is worth.

He has pleaded a state of facts which join the salesman C. H. Anderson, and B. G. Hall and Truman Jones in a joint transaction by and through which his Chevrolet car was to be traded in at an agreed price of $300, in part payment on the Pontiac car to be purchased by the plaintiff, and about which Pontiac car the salesman C. H. Anderson made material misrepresentations as to its use, from whom it was purchased, and its original purchase price.

We next review the testimony which went to the jury.

Truman Jones did not appear and testify, and no reason is given for his failure to do so.

Plaintiff testified to the visit made by C. H. Anderson out to his place of business at Rotan, Texas, when he brought the Pontiac out to show it to plaintiff and when he made the representations set out in plaintiff’s pleading. Plaintiff testified that after he had the talk with C. H. Anderson, some one sent him a note and mortgage to sign. He produced the papers and introduced them in evidence; they are dated December 17th, 1937, and constitute a note made payable to B. G. Plall in the sum of $650, payable in instalments, and a mortgage with plaintiff as mortgagor and B. G. Hall as mortgagee, conveying the Pontiac that was to be sold to the plaintiff. Plaintiff testified that he did not execute the note and mortgage because he had, in the meantime, learned about the Pontiac car; that he came to Fort Worth with these papers in his pocket; that he could not find Truman Jones and he went to see B. G. Hall and asked him what his name was doing on the papers because he had not heard of Hall before, and Hall answered: “I own all of those cars on Truman Jones’ lot; that is the reason my name is on that paper.”

Plaintiff testified that he tried to get his Chevrolet back, but Hall told him that Truman Jones had some papers on his car and he (Hall) intended to keep it. That he had talked to C. H. Anderson before he talked to Mr. Hall and Anderson had told him that he could get his car back.

The witness Odell Atwood testified that he knew the plaintiff and B. G. Hall; that in 1937, he knew plaintiff was in the market for a car; that witness went to Mr. Hall and told him about plaintiff as a prospective buyer; that this was in December, 1937, he thought; that he went to see Hall after the plaintiff had wrecked his own car.

The bill of sale from plaintiff to Truman Jones, conveying the Chevrolet, is dated December 17th, 1937; the bill of sale to said car from Jones to B. G. Hall is dated December 20th, 1937.

B. G. Hall testified that in December, 1937, he did not own a Pontiac car such as the one involved in this suit; that he bought such a car from a second-hand dealer in Arkansas and sold it, the latter part of November or first of December, 1937, to Truman Jones and gave him a bill of sale to it, but no such bill of sale was produced at the trial; that he did not know whether the bill of sale was recorded or not; that he did not execute a bill of sale to such Pontiac to the plaintiff on December 21st, 1937; that no one is interested with him in his business and Truman Jones had no interest in it; that he did not employ Jones to work for him and Jones did not employ him to work for Jones; that he knew C. H. Anderson but he had no interest in his business and was not employed by witness in the operation of his business; that he did not have any dealings with the plaintiff, and that, so far as he knew, no one authorized by him or as his salesman or representative ever sold the Pontiac car to the plaintiff, and that witness did not sell the car to plaintiff; that he bought plaintiff’s Chevrolet from Truman Jones (and he produced the bill of sale, to which we referred above) ; he testified about plaintiff coming to his place of business and denied plaintiff’s statements as to the conversation had between them; he said plaintiff wanted to buy a car from him and told him about his trying to make a deal with Truman Jones and Jones had misrepresented the car to him; and witness said that he told plaintiff he could make no trade with him until he got his Chevrolet car back from Jones; he denied that plaintiff tried to get his Chevrolet car back from him and in detailing his conversation with plaintiff, Hall said: “I knew I had the Chevrolet and I knew that when he came down there. I also knew I had a bill of sale to it. It wasn’t my business to say anything to him about it.”

He denied any knowledge of a note and •mortgage to be signed by plaintiff in his favor and covering the Pontiac car. He said he bought the Chevrolet car from Jones as follows: “I got the Chevrolet from Truman Jones on an indebtedness. I paid him about $1,000.00 for it; he owed me some money, and I just made a credit on my books for it.”

Abe Eckert, employed in the tax collect- or’s office of Tarrant County, as a deputy, testified that he has custody of the records and transfers of automobiles. From the records he showed that the Pontiac car in question was sold by Jesse and Earl of Arkansas to B. G. Hall at Fort Worth; the receipt being dated October 1st, 1937; that the next record shows that on December 21st, it was transferred to C. O. Anderson (plaintiff) and Truman Jones as mortgagee; that witness had looked for the original bill of sale and could not find it; that “the records do not show any other transfer in the intermediate time before it was transferred to Mr. Anderson (the plaintiff).”

Some defendant introduced in evidence a chattel mortgage dated December 16th, 1937, signed by C. O. Anderson (plaintiff) to Truman Jones as mortgagee, covering the Pontiac car in controversy, and to secure twelve notes aggregating $650. It is not shown that such mortgage was ever placed of record, and it is certain that such mortgage was not relied upon by any party to this transaction, because shortly after December 16th, 1937, some one sent the note and mortgage dated December 17th, 1937, to plaintiff, requesting him to execute same, and those instruments run to B. G. Hall, not to Truman Jones. Plaintiff declined to execute these instruments and endeavored to get his Chevrolet back.

When Mr. Hall was cross-examined about the note and mortgage running in his favor, he said: “It does look like some one is just trying to put one over on me, in writing out a note and mortgage in my favor.”

Hall testified that he knew in about 30 days after plaintiff executed the bill of sale' to Jones that plaintiff wanted his Chevrolet back, and was claiming it.

Plaintiff sequestrated the Chevrolet car, and Hall replevied it and sold it before this case was tried.

The record discloses no objections to the court’s charge.

We believe that the trial court has fallen into error on a mistaken theory of what is involved in this suit.

The plaintiff endeavored to get all of the parties with whom he was to deal and dealt before the court. The salesman, C. H. Anderson, could not be found and was dismissed. The defendants Hall and Jones were served with process, and answered by written pleadings, but Jones did not take the witness stand.

It is not a matter of insignificance that neither Hall nor Jones sought to recover from the plaintiff on the theory of a sale made to him of the Pontiac car.

No one seeks to require the plaintiff to live tip to his bargain. The Pontiac car is not tendered to the plaintiff by either Hall or Jones. So, we have the plaintiff standing in court stripped of his own car and with no Pontiac delivered, or tendered, by any one in its place, and the two defendants, Hall and Jones claiming to own plaintiff’s car.

According to the record before us, no one ever tendered the Pontiac car to plaintiff before this suit was brought by him.

Here we find the plaintiff executing a bill of sale covering his Chevrolet to one Truman Jones, dated December 17th, 1937, and executing a chattel mortgage and note in the sum of $650, payable to Truman Jones, dated December 16th, 1937, covering the Pontiac car, for which he was to trade his Chevrolet and pay a balance of $650, all such papers having been executed out at Rotan, Texas, when the salesman, C. H. Anderson, came out with the Pontiac and sought to interest him in a trade.

Then, in a “day or two”, we find “some one” — the plaintiff did not say whom —sent plaintiff, through the mails, to his place of business at Rotan, a chattel mortgage and note covering the Pontiac car, and in favor of B. G. Hall. Take either horn of the dilemma, where do we find the defendants Hall and Jones? They have undoubtedly converted plaintiff’s Chevrolet to their own use and benefit. The defendant Hall cannot contend that he is an innocent purchaser for value and without notice of plaintiff’s claims. He gave nothing of value for plaintiff’s car. He only credited his debtor, Jones, with some sum that he did not disclose at the trial. See 37 Tex.Juri. para 217, pages 480 et seq., and many cases cited.

After Hall learned the facts, he had not sold the plaintiff’s Chevrolet. In fact, he sold it after this suit was brought and after the plaintiff had sequestrated the car and Hall had replevied it.

Hall has not lost the debt that Jones owes him, since he -is not a bona fide purchaser of the Chevrolet car for value and without notice of plaintiff’s rights.

With the testimony and facts in evidence before the jury, all admitted without objection, and the absence of any tender of the Pontiac car by either Hall or Jones, and the failure of Jones to testify to his part in the transaction, the jury were warranted in believing that C. H. Anderson and Hall and Jones were working together in this transaction, in which event the salesman, C. H. Anderson, having worked up the trade with plaintiff, and Hall and Jones having accepted his services in connection with the trade, he would become the agent of each of them, as a matter of law, even though he may never have acted as agent for either of them before or at any time afterward. To be an agent one does not have to be regularly employed.

Let us take the other horn of the dilemma and view the matter from the angle most favorable to Hall. The evidence is ample to support the jury’s verdict that C. H. Anderson was the agent of Jones-in the transaction, and that he made false representations as to the Pontiac car, which1 were material, and Hall, by his own testimony, having shown that he was not an innocent purchaser for value without notice of appellant’s claims, appellant was entitled to a joint and several judgment against Plall and Jones.

We are of opinion that appellant’s testimony and other evidence, notably Hall’s admissions, show injury sustained by appellant. Appellant was entitled to that for which he was bargaining. Appellees could not put off on him something different and' say to him: “What we sell you is as good or better than the thing we represented that we were selling to you.” Nance v. McClellan, 126 Tex. 580, 89 S.W.2d 774, 106 A.L.R. 117; 12 R.C.L. § 138.

A well considered opinion that covers the case before us is J. I. Case Threshing Mach. Co. v. Webb, Tex.Civ.App., 181 S.W. 853, writ denied, and cases cited therein.

It follows that appellant is entitled to a joint and several judgment against appel-lees Hall and Jones for the value of his Chevrolet.

■ It is ordered that the judgment of the trial court to the effect that appellant take nothing as against Hall and Jones be and it is hereby reversed and judgment is here rendered for appellant, jointly and severally against appellees Hall and Jones, in the sum of $300, and for all costs, and that execution issue in due season, and that plaintiff’s contract of purchase of the Pontiac automobile be in all things cancelled.

The issues as to appellant’s cause of action and appellee Hall’s cross-action against his co-defendant Jones being sever-able, and the facts in issue on such cross-action not having been fully developed, it is ordered that this cause as it relates to the cross-action between Hall and Jones be remanded for a trial as to such issues.

Appellant Anderson not having-been shown to be a party to repairing the Chevrolet car, it is the judgment of this court that appellee Hall take nothing against appellant as to the cross-action .against appellant for such repairs.

The judgment of dismissal as to defend.ant C. H. Anderson is by us undisturbed.

The judgment of the trial court is undisturbed in part, reversed and rendered in part, and reversed and remanded in part.


author: DUNKLIN, Chief Justice.

text:
    BERRY v. CHADWICK et al.
    No. 14030.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 9, 1940.
    Rehearing Denied March 15, 1940.
    Geo. M. Hopkins, of Denton, for appellant.
    Davenport & Tipps and Bullington, Humphrey & King, all of Wichita Falls, for appellees.
   DUNKLIN, Chief Justice.

This is a suit in trespass to try title to a tract of 755 acres of land, situated in Denton County, instituted by Pearl Chadwick against Irene Berry, and from a judgment in favor of the plaintiff the defendant has appealed.

The land was acquired by Lee Litsey, and was owned by him at the date of his death, on June 3, 1936. He was never married and died without leaving any will disposing of his estate. Mrs. Pearl Chadwick and Mrs. Cora McMakin were his sisters and only heirs. Mrs. Chadwick went to live with him on the property in controversy about two years prior to his death, and has remained in possession thereof since his death.

Robert H. Hopkins was appointed administrator of his estate on June 29, 1936, and on August 16, 1937, the probate court of Denton County entered an order authorizing the sale of this property, to pay debts due to the estate’s creditors. No immediate action was taken with respect to this order, and Mr. Hopkins died at some time between August 16, 1937, and February 14, 1938, and on the date last noted, Alvin C. Owsley was appointed administrator de bonis non of the estate. Thereafter, on March 9, 1938, Alvin Owsley filed in the probate court a report of the sale of this property to S. C. Caruthers, under and by virtue of the order of the probate court to sell the property, of date August 16, 1937. In that report of sale, it was recited that the property had been bid in by S. C. Caruthers for the consideration of $21,973.87, and that he is now ready and able to comply with his bid, with money to be acquired by him under and by virtue of the terms of his written agreement with the administrator, signed by the administrator and Caruthers, which was attached to the report of sale, as an exhibit, and made a part thereof. That exhibit recites an agreement by Owsley. to sell and convey to Caruthers the property in controversy, subject to the approval of the court, for the sum of $21,973.87, subject to a prior lien held by the Federal Mortgage Bank, amounting to about $5,611, to be assumed and discharged by Caruthers; that the taxes on the property prior to 1938 were to be paid by the estate, but the taxes for the year 1938 should be paid by Caruthers, and that the rents for the year 1938 shall pass with the sale to. S. C. Caruthers.

Following those recitals are these stipulations :

“It is understood that the said S. C. Caruthers has made application to .The Travelers Insurance Company for a loan of Sixteen Thousand Dollars and the said application has been allowed subject to the approval of the title by the attorneys of said Insurance Company and the said Alvin C. Owsley has furnished to said attorneys an abstract of the title to said land for their examination and upon'its approval by the said attorneys the title will be accepted by the said S. C. Caruthers.
“It is understood that Cora McMakin, one of the two heirs of Lee Litsey, deceased, has executed and placed in escrow a deed conveying to Mrs. Pearl Chadwick all of her interest in the estate of Lee Litsey, deceased, to be delivered and take effect upon the payment of six thousand dollars in cash and it is agreed that the said S. C. Caruthers shall pay to the said Cora McMakin the said sum of six thousand dollars and procure the delivery of said deed on gr before the fifth day of April, 1938.
“It is further agreed that upon the approval of the said sale the said Alvin C. Owsley shall procure a deed to be executed by the said Pearl Chadwick conveying all of her interest of every kind in said land to the said S. C. Caruthers to be delivered contemporaneous with the deed executed by said administrator upon the payment of the purchase money for the said land.
“It is understood that Mrs. Pearl Chadwick is now occupying one of the houses on the land above mentioned as a home and that she shall be allowed a period of sixty days from the time the sale of said land is closed to procure another home and that at the expiration of said term of sixty days she will remove from said premises and deliver the quiet and peaceable possession thereof to the said S. C. Caruthers.
“The said sum of six thousand dollars to be paid by the said S. C. Caruthers to the said Cora McMakin for her interest in said estate is a part of the purchase money for said land and the balance of the purchase money shall be paid to the said Alvin C. Owsley.”

On March 25, 1938, the probate court of Denton County entered an order approving the report of sale so made by the administrator, and the terms thereof, reciting that the administrator had filed a bond in the sum of $50,000, conditioned as the law requires, with good and sufficient sureties thereon, and was duly approved by the court, with directions that upon compliance by Caruthers with the terms of said sale, “said Alvin C. Owsley shall execute. and deliver a good and sufficient deed conveying to him the said several tracts of land above described absolutely and in fee simple.”

Thereafter, the quitclaim deed from Pearl Chadwick to S. C. Caruthers, of date March 24, 1938, referred to in that exhibit, was executed and delivered to S. C. Caruthers, -reciting a nominal consideration of $5 cash paid; and Mrs. McMakin executed a deed conveying all her interest to Mrs. Chadwick. A loan of $16,000 was then procured by Caruthers from the Travelers Insurance Company, as recited in the exhibit, and out of the sum so borrowed, $6,000 was paid to Mrs. McMakin.

By deed of date March 28, 1938, Alvin C. Owsley, administrator, executed to S. C. Caruthers a deed conveying the property in controversy, for a recited consideration of $21,973.87 in hand paid, and the further consideration of the assumption by Caruthers of an unpaid balance of $5,627.44, owing to the Federal Land Bank of Houston, reciting that the deed was made under and by virtue of the order of the probate court, on March 19, 1938, approving the sale. That deed was duly filed of record March 28, 1938.

The undisputed evidence shows that Mr. Caruthers procured said loan for Mrs. Chadwick, in order to pay off the indebtedness on the land, and that he has never claimed any title in it in his own right at any time,' and further, that Mrs. Chadwick has paid him the' sum of $500 for his services in procuring the loan, in accordance with her agreement so to do, which was the only interest he had in the transaction; and that he has recognized Mrs. Chadwick as the owner of the land, ever since he purchased it.

On March 30, 1938, which was subsequent to the sale by the administrator to Caruthers, a written agreement was entered into by S. C. Caruthers and Pearl Chadwick, duly acknowledged by the parties thereto, reading as follows:

“The State of Texas, County of Den-ton.
“Whereas the several tracts of land belonging to the estate of Lee Litsey, deceased, were being sold under an order of the court, and Pearl Chadwick, the sister and most interested heir of the said Lee Litsey, was unable to purchase and pay for the same and at her special instance and request S. C. Caruthers has purchased and paid for said land with the understanding that he will hold the same for a reasonable time for the benefit of the said Pearl Chadwick and convey the said land to her upon payment of the amount he has paid for the land and a reasonable compensation for the risks he has encountered in buying said land; Now Therefore it is hereby agreed by and between the said S. C. Caruthers and the said Pearl Chadwick, a feme sole, that if and when the said Pearl Chadwick shall pay to the said S. C. Caruthers the money he has expended and an additional sum of five hundred dollars he will sell and convey the said land to the said Pearl Chadwick but if the said S. G Caruthers shall sell the said land to some other person, at an advanced price satisfactory to said Pearl Chadwick the sum of five hundred dollars he shall be allowed and paid a commission in addition to of five per cent of the amount for which the said land is sold.
“Witness our hands at Denton, Texas, this March 30th, 1938.
“(Signed) S. C. Caruthers.
“Pearl Chadwick.”

On June 5, 1938, the defendant, Mrs. Irene Berry, recovered a judgment against S. C. Caruthers, for $2,267.25, on his promissory note, in favor of the First National Bank of Louisville, in a suit originally filed by the Bank, in November, 1931. Mrs. Irene Berry became a successor in interest of the bank in that suit, and the bank has filed a disclaimer of any interest thereunder. That judgment was duly filed in the Abstract Records of Denton County, on June 28, 1938, but neither the bank nor Mrs. Berry’s acquisition of the note was in any way induced by the ostensible ownership of Caruthers of the land involved in this litigation.

By deed dated September 8, 1938, filed for record September 17, 1938, Caruthers, by deed with warranty of title, conveyed the property to Mrs. Chadwick, subject to all the indebtedness then outstanding against it. It thus appears that that deed was acquired after Mrs. Berry’s judgment had been filed in the Abstract Judgment Records of the County.

By proper assignments, it is insisted by appellant that testimony introduced to show a lack of consideration received by Mrs. Chadwick for the sale of the property, approved by the orders of the probate court, was incompetent and inadmissible, because it amounted to a collateral attack on the orders of the probate court approving and confirming the sale to Ca-ruthers, which contention we believe is without merit.

From all the evidence introduced and noted above, we believe it clear that even though it be said that the order approving the report of sale and the sale made thereunder carried with it a sale of the legal title of both Mrs. Chadwick’s and Mrs. McMakin’s interest in the property, yet the same was held by Caruthers in trust for the use and benefit of Mrs. Chadwick, and the evidence offered to show that trust relation did not amount to a collateral attack on the order of the probate court in question. ,

McCampbell v. Durst, 73 Tex. 410, 11 S.W. 380, 384, was a suit by Mary J. Durst, widow, and three children of James H. Durst, deceased, to set aside certain deeds of conveyance executed by the administrator of the estate of James H. Durst to one Jordon, and by Jordon to Charles Looinskiald and John S. Campbell, attorneys and partners, who had represented the administrator in all proceedings pertaining to the estate. The record showed that Mary J. Durst, as widow of the deceased, and for and in behalf of her three minor children, executed to that law firm a power of attorney, giving them authority to do anything necessary to the settlement of the estate, with an agreement that for those services, when rendered, they should be entitled to receive one-half of all moneys and one-half of all real estate that may be forthcoming to the grantors upon final settlement of the estate. Under such employment the attorneys, acting for the administrator, presented an application for an order of sale of 77,000 acres of land belonging to the estate, which was duly granted; also a report of sale of the land by the administrator, for an aggregate sum of $3,767.31, fourteen leagues of which was sold to Richard Jordon, who then made a quitclaim deed to it to William McCampbell, who had acquired from his partner all his interest.

Although all proceedings in the probate court pertaining to the sale were regular on their face, the court held that testimony showing that no consideration was paid for either of the deeds in question, and therefore the attorneys had failed to perform the services they had undertaken, was admissible, .and that the suit did not constitute a collateral attack on those probate orders.

The court further said:

“The obvious purpose of this suit was -to cancel the deeds which were executed in pursuance of the proceedings in the probate court, and .to remove from plaintiffs’ title the cloud cast thereon by the -deeds, or any other claim of appellant to the land. These proceedings in the probate court, and every order and decree relating to the land in controversy, are specifically set out in the petition, and it is averred of each and all of them that •they are fraudulent and void. These proceedings constitute a part of appellant’s claim, and eventuated in the deeds, against both of which relief is directly sought by this suit. We think the suit is not collateral, but a direct proceeding to vacate the deeds, which may be done if the facts alleged be true, although the orders in probate stand. * * *
“The proceedings in the probate court were not void, and the court erred in so holding and in excluding them from the jury. * * *
“We think the court did not err in its construction of the contract entered into between appellant and his partner and the administrator and widow of James H. Durst. We think the contract admits of no other construction than that Looni-skiald & McCampbell were to render all professional services necessary in litigating the title of the estate to the lands, and to defray all expense necessary to clearing up and perfecting the titles to the lands'; to pay, compromise, or discharge, in some way, all debts established against the estate,'as conditions precedent to their right to receive one-half of the assets of the estate. It was clearly proven that these conditions were not performed. The land having been conveyed to Jordon without consideration, he held the title in trust for the beneficiaries of the estate, and, the conveyance having been made to appellant without consideration, and with full knowledge upon his part of the title his vendor had, he was in no better position than Jordon would have been as defendant in the action.”

That decision was cited with approval and followed by the Supreme Court in Johnston v. Stephens, 121 Tex, 374, 49 S.W.2d 431. Of like effect was the decision in Kreis v. Kreis, Tex.Civ.App., 57 S.W.2d 1107, in which both the above cases are cited.

In Stewart v. Profit, 146 S.W. 563, 564, by the Court of Civil Appeals, writ of error refused, Stewart claimed title to 5 acres of land under deed to him by one Kelsey, who had acquired title from Katie Bell under her contract that in consideration of his agreement to pay expenses of litigation, including employment and payment of a lawyer to defend a certain suit against Katie Bell for a 50 acre tract, she would convey to him one-half of all she recovered, and in which suit a judgment was rendered in her favor for 10 acres, one-half of which she then conveyed to Kelsey.

This was said in the opinion:

“Appellant, in connection with the judgment in the case of Kennedy v. Bell, offered testimony to show that Katie Bell in fact had no defense to offer to the suit, and that this fact was recognized by her attorneys, but that her attorneys appealed to attorney for Kennedy to let her have the 10 acres, here in controversy, on the ground that she was an old woman 70 years old struggling for an existence, trying to get along by raising garden truck on this land, with no other means of subsistence, and that out of consideration for her needy situation, and not in recognition of her claim to any part of the land, her counsel admitting that she had none, plaintiff's attorney, for his client, the attorney also having an interest in the land, agreed that plaintiff would give her the 10 acres, and that to carry out this agreement the judgment was entered up without evidence offered. To this testimony appellees objected on the ground that the judgment was conclusive and could not be attacked collaterally, which was sustained and appellant excepted. Calvin Bell was not a party to this suit. The evidence, if true, showed that the land was in fact a donation or gift to Katie Bell, and therefore her separate estate, even if she was legally the wife of Calvin Bell. It did not impeach the conclusiveness of the judgment, nor was it, in any proper sense, an attack upon it. Looking to the substance instead of the form, it was, if these facts be true, as much a gift to Katie Bell as though judgment had been rendered in favor of Kennedy and he had afterwards made her deed without consideration other than regard for her needy circumstances. The evidence was improperly excluded, and the seventh assignment presenting the - point must be sustained.”

The purchase of the property by Caruthers with money which Mrs. Chadwick had enabled him to borrow from the Travelers Insurance Company, and under his agreement with her that he would purchase it in his name for her benefit and then convey it to her, with his disclaimer of title in her favor, clearly established an equitable title in her, subject to the mortgage lien executed by Caruthers to borrow the $16,000, and subject to the lien in favor of the Federal Land Bank of Houston, noted above, with the bare legal title in Caruthers. That the filing of the abstract of judgment in favor of defendant, Mrs. Irene Berry, did not create a lien on Mrs. Chadwick’s equitable title, is well established by an unbroken line of decisions in this State. Hence, appellant’s contention to the contrary is overruled.

In First State Bank of Amarillo v. Jones, 107 Tex. 623, 183 S.W. 874, 876, this was said:

“The judgment lien of Jones would only fasten upon the interest in the land which was actually owned ■ by Roberts. It would not attach to a greater interest therein than Roberts owned in the land, even though the deed records erroneously disclosed in his favor a greater interest in the land than belonged to him. A judgment lienholder is not in the same attitude as an innocent purchaser for value without notice. The latter has expended his money in good faith to the amount of the purchase price of the land', and is justly entitled to be held harmless. It is right that the loss under such circumstances should be visited upon the landowner whose negligence, in failing to give notice through the deed records of his ownership, occasioned the loss, rather than that it should fall upon the innocent purchaser who was without fault. The judgment lienholder is in a different attitude. He is not in any sense an innocent purchaser. If his lien fails to attach, he loses nothing. His judgment still remains unimpaired in its full amount.”

In Garrison v. Citizens’ Nat. Bank of Hillsboro, Tex.Civ.App., 25 S.W.2d 231, land was conveyed for the sole purpose of ■securing a loan; the grantor remained in possession of the land. It was held that the equitable title remained in the grantor and was not subject to a recorded abstract of judgment against the grantee. To the same effect was the decision of the Commission of Appeals, adopted by the Supreme Court, in Payne v. Bracken, 131 Tex, 394, 115 S.W.2d 903, 904, in which the opinion in the Garrison case, just noted, was cited with approval, and in which this was said: “It is well settled that the lien of a judgment creditor by virtue of filing abstract of his judgment extends only to such title as the debtor has, and is subject to all equitable rights of third persons.”

Of like effect were the decisions in Lusk v. Parmer, Tex.Civ.App., 114 S.W. 2d 677, and Edwards v. Beals et al., Tex.Com.App., 271 S.W. 887.

Appellant cites the opinion of this court in Diltz v. Dodson, Tex.Civ.App., 207 S. W. 356, in support of his contention that Mi's. Chadwick’s title was subordinate to Mrs. Irene Berry’s duly recorded judgment lien. As shown in that opinion, that was a suit by Mrs. Diltz for a writ of injunction to restrain the sale of 320 acres of land under execution, to satisfy a judgment rendered against her husband, W. L. Diltz, in favor of R. W. Rogers, and which judgment had been duly abstracted in records of deeds of Taylor County, where the land was located. According to- allegations in her petition, and evidence introduced, she claimed title, in her own separate right, through a deed to her from her son, W. L. Diltz, Jr., who had acquired the same through deed to him by his father, W. L.' Diltz, Sr., defendant in the judgment, one month and a day prior to date of the judgment in favor of Rogers; but those deeds were not filed for record until two months and two days after the filing of the abstract of the judgment in favor of Rogers; and plaintiff introduced no evidence to show that at the time the judgment lien attached, Rogers had notice of the unrecorded deeds under which plaintiff claimed title, and since plaintiff had failed to discharge the burden to show such notice, those deeds were void as against Rogers, who with his fixed judgment lien was a creditor, by virtue of the provisions of Art. 6824 (now Art. 6627), Rev. Civ.St. And being void, those deeds could not affect the judgment lien. In answer to appellant’s contention that the judgment lien attached only to such extent as the defendant, W. L. Diltz, Sr., had in the property, we said that while that was the rule under the common law, it had been abrogated by our registration statutes. What we there said had reference to the legal title standing in the name of W. L. Diltz, Sr., at the time the abstract of judgment was filed, creating a judgment lien on all the real estate then owned by him and upon all real estate he might thereafter acquire, under and by virtue of Art. 5449, Rev.Civ.St, Vernon’s Ann. Civ.St. art. 5449, and the apparent legal title evidenced by the deeds under which plaintiff claimed. That that announcement had no reference to an equitable title, but only to a legal title, clearly appears in subsequent portions of the opinion, to the effect that if plaintiff had alleged facts establishing an equitable title in her and had supported such allegations by sufficient proof, such equitable title would not have been affected by the judgment lien because it was not subject to registration statutes; but that the record reflected an absence of such pleading and proof.

For the reasons noted, all assignments of error are overruled, and the judgment of the trial court is affirmed.


author: COMBS, Justice.

text:
    PINCHBACK et al. v. HOCKLESS et al.
    No. 3498.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 12, 1940.
    Rehearing Denied Eeb. 28, 1940.

      Nelson Jones, of Houston, and Orgain, Carroll & Bell, of Beaumont, for appellants.
    D. L. Broadus and Renfro & Keen, all of Beaumont, for appellees.
   COMBS, Justice.

This is a land suit involving title to 5 acres, part of a 10 acre tract referred to in the evidence as the Bright Tract, out of a 100 acre tract conveyed by G. W. Tevis and wife to Randolph W. Tevis, part of the C. Williams league in Jefferson County. The land is located near the Amelia oil field and appears to have considerable value. Appel-lees, who were plaintiffs in the court below, claim record title to the land sued for and, for reasons which we shall discuss briefly later, we think they established their record title. On the trial, appellants claimed title by the statutes of adverse possession and limitation of 5, 10 and 25 years, Vernon’s Ann.Civ.St. arts. 5509, 5510, 5519. We will refer to the parties as plaintiffs and defendants, as denominated in the trial court. At the conclusion of the evidence, the defendants moved for an instructed verdict which was overruled. The case was submitted to the jury on the following special issues, answered as indicated:

Special Issue No. 1:

“Do you find from a preponderance of the evidence that the defendants, R. T. Pinchback and wife or either of them, repudiated the title of plaintiffs and those under whom they -hold at any time between December 12, 1911 and August 20, 1927?
“If you so find from the preponderance of the evidence, answer, ‘They did,’ but if you do not so find from the preponderance of the evidence, answer ‘They did not.’ ”

To this issue the jury answered “They did not.”

Special Issue No. 2:

“Do you find from a preponderance of the evidence that the defendants, R. T. Pinchback and wife, either in person or through a tenant or tenants have held peaceable and adverse- possession of the land in controversy, cultivating, using and enjoying the same for any period of ten consecutive years after December 12, 1911, and before August 20, 1937?
“If you so find from the preponderance of the evidence, you will answer ‘They have,’ but if you do not so find from a preponderance of the evidence, answer, ‘They have not.’ ”

To which the jury answered “they have not.”

Special Issue No. 3:

“Do you find from a preponderance of the evidence that the defendants, R. T. Pinchback and wife, or those under whom they claim, either in person or through a tenant or tenants, have held peaceable apd adverse possession of the land in controversy, . cultivating, using and enjoying the same for any period of ten consecutive years prior to December 12, 1911?”

To which the jury answered “They have not.”

Special Issue No. 5:

“Do you find from a preponderance of the evidence that the tract of land 'in controversy in this suit was entirely surrounded by a tract or tracts of land owned, claimed or fenced by the defendants, R. T. Pinchback and wife, from 1911 to the present time?”

To which the jury answered “Yes.”

Special Issue No. 7:

“Do you find from the preponderance of the evidence that the defendants, R. T. Pinchback and wife, either in person or through a tenant or tenants, or those under whom they claim, either in person or through a tenant or tenants, have held peaceable and adverse possession of the land in controversy, cultivating, using and enjoying the same, for any period of ten consecutive years, after December 12, 1901, and before December 12, 1921 ?”

To which the jury answered “they did not.”

No issues relative to the five year statute and the 25 year statute were submitted, although requested. On the verdict of the jury, the trial court entered judgment for the plaintiffs for title and possession of the land. We will set out the pertinent facts relative to the limitation issues in connection with our discussion of the appellant’s assignments.

Opinion.

In the outset we overrule the defendants’ contention that plaintiffs did not sufficiently establish their record title. The 10 acre Bright Tract, 5 acres of which is here involved, was conveyed by Randolph W. Tevis and wife to G. W. Spence, by deed dated December 19, 1877. Plaintiffs claimed under that deed and it was not introduced in evidence. It appears to have been lost without ever having been recorded. However, Randolph W. Tevis and wife conveyed the remaining 90 acres of the 100 acre tract to Richard L. Adcock by deed dated November 13, 1878, and in that deed they recited that it was all of the 100 acre tract “less 10 acres thereof, more or less, which has been heretofore conveyed by said R. W. Tevis and wife to G. W. Spence which is not hereby conveyed. The land hereby conveyed is 90 acres more or less the remainder of the 100 acre tract conveyed by G. W. Tevis and wife as aforesaid which 100 acre tract is surveyed and described as follows, to-wit:” (then follows the description). And by deed dated July 19, 1880, G. W. Spence conveyed to Jack Bright, ancestor of appellants, the 10 acres here involved by specific metes and bounds, and in that deed recited “the said 10 acres of land being the same that was conveyed to me by R. W. Tevis and wife on the 19th day of December, A. D. 1877.” These recitals appearing in the instruments of conveyance under which all parties to this suit claim constitute muniments of title binding on all the parties sufficiently establishing the conveyance in question. Kimbro v. Hamilton, 28 Tex. 560; Willis v. Smith, 72 Tex. 565, 573, 10 S.W. 683; Havard v. Smith, Tex.Civ.App., 13 S.W.2d 743.

We will next consider defendants’ contention that the trial court should have granted their motion for an instructed verdict because, as they contend, they established their title by limitation under the five year statute, Vernon’s Ann.Civ.St. Art. 5509, as a matter of law. As we view the record, the evidence did not raise any issue of adverse possession and limitation under the five year statute for two reasons: (1) The land in controversy was not included within the recorded muniments of title under which the defendants and their predecessors in interest claimed title, and (2) there was no proof of the payment of taxes on the land involved. We will discuss these matters in order.

Randolph W. Tevis and wife were common grantors in the chains of title under which both the plaintiffs and defendants claimed. Tevis and wife, the then owners of a specific 100 acres, conveyed 10 acres of it to G. W. Spence from whom the plaintiffs deraign their title thereto, and shortly afterwards Tevis and wife conveyed the remaining 90 acres to Richard L. Ad-cock, from whom defendants deraign their title. One deed in the chain of title from Adcock to the defendants was not introduced in evidence, but it was fully established by recitals in the instruments which were introduced as in the case of the Spence deed above referred to. In their deed to Adcock, the Tevises specifically excepted the 10 acres conveyed to Spence, and, as shown by the recital hereinabove quoted, purported to convey only the 90 acres which remained of their 100 acre tract. True, subsequent conveyances, including the deed from J. W. Hall to P. H. Cunningham, dated June 26, 1890, under which the defendants claimed their limitation, did not except from the description the 10 acre Spence (later the Bright) Tract but described the 100 acres by metes and bounds. However, that deed contained the recital following the metes and bounds description “ * * * containing 90 acres more or less and being the same 90 acres more or less — by R. L. Adcock and wife to W. F. Watkins and by said Watkins and wife to W. H. FI. B. Baker to which deed reference is made.” In 1911, in a friendly partition suit in the district court of Jefferson County, the estate of P. H. Cunningham and wife was partitioned among the heirs and by virtue of that partition the 90 acre Watkins Tract was set aside to the defendants. The report of the Commissioner of Partition and the judgment of the court show that the Bright 10 acres here involved was not considered a part of the Cunningham land. The land was surveyed on the ground by G. W. White, a surveyor, and one of the Commissioners of Partition, who excluded the Bright 10 acres by metes and bounds and showed it on the plat which he filed with the designation “Bright Tract.” Thus, the record as a whole, including the interpretation placed upon their muniments of title by the defendants thémselves, negative the construction that the deed from J. W. Hall to P. H. Cunningham was intended to include the Bright 10 acres. For although that deed did include within the metes and bounds description the entire 100 acre tract, it should be borne in mind that the origin of the defendants’ title from the common grantor was by the deed from Tevis to Ad-cock, which not only purported to convey only 90 acres but specifically excluded the 10 acre Bright Tract. Subsequent deeds in the chain merely omit the clause making reference to the conveyance by R. W. Te-vis to G. W. Spence, and excepting that 10 acres. Otherwise the description is the same with no apparent intent to enlarge the acreage of the grant beyond the 90 acres conveyed by the prior deeds. Under the authorities above cited the recital in the deed from the Tevises to Adcock under which appellants claim specifically excluding the Bright 10 acres, must be read into the deed from Hall to Cunningham. It is .as binding upon appellants as it would have been had it been incorporated in the description.

It is true that as a general rule a particular metes and bounds description will control over a general description. Yet in construing a deed the real intent of the grantor must be gathered from the whole description, including the general as well as the particular. This principle is fully recognized in the case of Cullers v. Platt, 81 Tex. 258-264, 16 S.W. 1003, and Sanger v. Roberts, 92 Tex. 312, 48 S.W. 1, cited by the defendants in their brief. Here we think the defendants’ claim of title is limited, by their muniments and by the interpretation which they and their predecessors in interest have placed upon them, to the 90 acres conveyed by Randolph W. Tevis and wife to Richard L. Adcock.

As to the payment of taxes, the defendants showed that they, and those under whom they claim, rendered and paid taxes before delinquent on 416 acres of the C. Williams league from 1895 to 1908, inclusive. But on the record that was no proof of payment of taxes on the land here involved. The record affirmatively shows that the Cunninghams owned and claimed title to other lands on the C. Williams league. They had acquired 123 acres from J. -D. McLean, 126 acres from R. L. Ad-cock, 100 acres from Ellen R. Collier, and 90 acres from J. W. Hall, making 439 acres in all. And in 1893 Cunningham conveyed 23 acres to Paul Gau, leaving 416 acres owned and claimed by the Cunninghams on the C. Williams league, exclusive of the Bright Tract — the exact acreage which they paid taxes on. The rendition and payment of taxes was by acreage only. There was no separate or distinct rendition or payment of taxes on the Bright 10 acres, or on any particular 10 acres of the C. Williams league. The Bright Tract had long been a segregated and distinct tract. The burden of proof was on defendants to establish every essential fact entitling them to recover, including definite proof that the taxes were seasonably paid on the very land involved. This they did not do. It cannot be inferred from the mere fact that they paid taxes on 416 acres of the C. Williams league that the Cunninghams meant to include and pay taxes on the Bright 10 acres. Furthermore, the record tends rather to refute any inference that they did so intend. In the first place, presumption naturally would be that they meant to pay taxes, and did pay taxes on their own land since they did not render any excess acreage. And it is also shown that the plaintiffs and their predecessors in interest have rendered and paid the taxes on the Bright 10 acre tract from about 1890 to the filing of this suit in 1936. And there is no showing that there was any double payment of taxes on the Bright lands. Consequently, we think the evidence wholly failed to raise an issue that taxes were paid by the defendants on the land in controversy as required to support their plea of the statute of S year limitation. This holding in no wise conflicts with the decisions cited by defendant to the effect that payment of taxes on actual acreage called for in the deed will support limitation to excess acreage included in the metes and bounds described. Starkey v. McNay, Tex.Civ.App., 103 S.W.2d 1051, 1052; Henning v. Wren, 32 Tex.Civ.App. 538, 75 S.W. 905. In that class of cases there was defit nite evidence on the tax records of payment of taxes on the very tract sued for, and the mere fact that the acreage was incorrectly given cast no doubt on the question of what land the claimant was paying taxes on.

With respect to recognition of plaintiffs’ title by Mrs. Cunningham from 1904 to 1908, when George Blanch cultivated 6-acres of the land, and, at Mrs. Cunningham’s direction paid the rent to an agent of the plaintiffs, defendants contend first that their title by limitation under the 5 year statute was already complete, and such recognition could not destroy their title thus-already vested, and, second,, that since Mrs. Cunningham, widow of P. H. Cunningham, deceased, owned only a half interest the-remainder being vested in the heirs of P. H. Cunningham, her act of recognition could not in any case affect the title of the heirs, to their one-half.

It is true, as contended by appellants, that a title once acquired by limitation can no more be lost by abandonment or by recognition that the title is in another, than can a title to land acquired by valid conveyance. But it is also true in a land suit involving the issue of adverse possession and limitation, that when the evidence shows that one whose possession is relied on to establish limitation, has by word or act recognized the title of the record owner, at any time while in possession, such fact may be considered as evidence that the possession was not adverse. The second point overlooks the vital fact that P. H. Cunning;ham died in 1893, only three years after the possession began, and the defendants rely from that time on the possession of Mrs^ Cunningham to mature their title by limitation. And certainly qn act or admission of Mrs. Cunningham bearing upon the question of the nature of her possession was binding on all who claim under her possession.

The statute which permits one . man to acquire the land of another with no other claim of right than to adversely occupy it and pay the taxes on it under a recorded muniment of title for five years is harsh enough when strictly construed. And justice demands proof clear and unequivocal that each essential element of the statute has been complied with in order to support a judgment which divests the title of one who owned the land and vests it in another who has no other right or claim than limitation.

On the several issues of 10 year limitation, we think the evidence was ample to support the jury’s findings against the defendants on those issues. True, the defendants offered evidence that P. H. Cunningham fenced his lands on the C. Williams league in 1890, immediately after he got his deed from J. W. Hall, and included within the fence, along with lands belonging to another party, the 10 acre Bright Tract, and that the Bright Tract has been included within the Cunningham enclosures ever since. And although there was some conflict as to whether the fences have been kept up, the evidence was ample to support a finding that the Pinchbacks and Cunning-hams have held continuous possession. But there was testimony to the effect that Jack Bright lived on his 10 acres from along in the 1880’s until about 1899, and also testimony raising the issues of nonclaim and recognition of the Bright title by Mrs. Cunningham. As to Jack Bright living on the 10 acres, Minnie Hockless testified he was living there when she was 3 or 4 years old. She was 58 at the time of the trial in 1938, which would place him there as early as 1884. She said he continued to live there until about 1899. The witness Sam White testified that he first saw Jack Bright living on that 10 acres about 1888. The witness Jake Douglas testified Jack Bright was living there about 1888 and that he continued to live there a long time — just how long the witness did not know. The witness George Blanch testified that he farmed a part of the 10 acres in rice in 1904 to 1907 and that an old well and other evidences of a former residence on the land were clearly visible. As to nonclaim and recognition George Blanch, a disinterested witness, testified that beginning in 1904 he leased the Cunningham lands for rice farming and in connection with that lease cultivated 6 acres of the Bright 10 acre tract from 1904 to 1908, inclusive; that shortly after he began cultivating it Mr. Charles Daniels came to him, purporting to represent certain negroes (the plaintiffs are negroes), who owned the Bright 10 acres, and demanded that the rent be paid to the negroes; that he took the matter up with Mrs. Cunningham, who was then living, and she told him that the ne-groes owned the land in question and to go ahead and pay them the rent on it, and that he thereafter paid to Mr. Daniels, for the negroes, $18, that being $3 per acre for the 6 acres cultivated each and every year that he farmed the rice on the Bright tract. He testified further that one Charpiot, who the record shows owned a one-fourth undivided interest with Cunningham in the Watkins 90 acres, also told him that the land belonged to the negroes. In addition, as we have said above, in the partition of the Cunningham estate in 1911 the Bright 10 acre tract was specifically excluded, with the acquiescence of all parties, from the partition of the Cunningham lands. We say with the acquiescence of all parties for the reason that a consent decree of partition of the Cunningham estate lands was entered, which decree excluded the Bright 10 acres as not belonging to the Cunningham lands and the field notes of the Watkins 90 acres awarded the Pinchbacks by that decree called for two lines of the Bright 10 acres as adjoinders, referring to it as the “Bright” tract. It was so designated on the plat prepared by the commissioners of partition and upon which the decree was based. That evidence was sufficient to support the jury’s finding of no limitation prior to 1911. As to the second period inquired about, the defendants offered evidence that beginning with the partition in 1911 they have continuously claimed ownership of the land in question. Mr. Pinchback testified that he was with surveyor White when he surveyed around and excluded the Bright tract and asked White why he did so and that White told him the title was not clear and to include it might cause litigation but that they (the Cunninghams) had as good title as anyone else. He stated the other heirs agreed for him to claim the Bright 10 acres and that he did so from then on. However, there was testimony offered that Mr. Pinch-back attempted to buy the negroes’ interest in 1925 and 1926 and told them he did not claim the land. Mr. Pinchback did not render or pay taxes on said 10 acres until 1934, about two years before this suit was filed, when he increased his rendition by adding the 10 acres. The appellees and their predecessors in interest rendered and paid taxes on it continuously from 1890 to the filing of this suit. In the meantime another partition suit was had involving a part of the Cunningham lands wherein the C. J. Charpiot Tract was ordered sold as not being capable of partition. Appellants were parties to that suit and appellant R. T. Pinchback was appointed as commissioner to sell the Charpiot 22%o acre tract which by the prior partition adjoined the Bright Tract. He made sale of it and by deed to the purchaser, J. B. Charpiot, dated March 12, 1931, and executed by him as such commissioner, reference was made to the Bright Tract, the adjoinder being called for in the words “Thence E. 1142 ft., an iron stake for Cor. in W. line of Jack Bright’s 10 acre tract * * * thence along Jack Bright’s N. line 543 ft.” etc. It was also shown that during the years 1934 and 1935, the Pinchbacks made affidavits for certain other persons whose lands had been held by them in that vicinity but not under the same fence, to the effect that they had never claimed such tracts.

We have summarized the testimony tending to deny defendants’ claim of limitation title and to support the jury’s findings against them thereon in deference to appellants’ insistence that the evidence was not sufficient to support the findings against them. The defendants of course offered considerable evidence in support of their issues of limitation, but certainly the testimony to which we have referred clearly raised the issues. The testimony with respect. to nonclaim and recognition of the plaintiffs’ title by the defendants and those under whom they claim if believed by the jury was sufficient of itself to completely destroy the adverse character of the defendants’ possession however long it may have continued.

We will notice briefly one other contention, which is that the defendants established title, or at least raised an issue of fact under the statute of limitations of 25 years. We think that on the record the issue was not raised. From the time the possession is alleged to have begun in 1890 down to the time of the partition of the Cunningham estate in 1911, the period was less than 25 years. And even if we should be in error in our holding that the muni-ments of title under which the defendants claimed prior to that time did not include the land in controversy, nevertheless it cannot be questioned that the defendants’ muniments of title- did not include it after the partition decree of 1911. That decree, as we have'pointed out, specifically excluded the Bright 10 acre tract. And since the defendants deraign their title from that decree it cannot be successfully contended that any issue of limitation under the 25 year statute was raised.

The defendants have urged several assignments complaining of the court’s charge, particularly as to certain definitions of terms. We have carefully considered all of the assignments and conclude that no reversible error is shown. In view of the great length of this opinion, we do not discuss the other assignments but simply overrule them. We believe we have discussed the matters chiefly relied on by the appellants for reversal.

Finding no error, the judgment of the trial court is affirmed.

We have withdrawn the original opinion and rewritten it in order to clarify certain fact statements. However, we have not changed any holding and it will not be necessary of course for appellants to file any motion for rehearing against this opinion.