Kirby Petroleum Co. v. Houk

PLEASANTS, O. J. Tbis is an action of trespass to try title brought by appellees, defendants in error, against appellant, plaintiff in error, to recover, title and possession of a tract of 5 acres of land, a part of tbe Henry Griffith league in Chambers county. Plaintiffs’ petition is in the statutory form for action of trespass to try title, and sufficiently describes the 5 acres of land for which they sue. The defendant answered by a general demurrer, general denial, and plea of not guilty, and specially pleaded limitation of three, five, ten, and twenty-five years. Upon the trial in the court below with a jury the court only submitted five questions to the jury, which will be hereafter shown, and upon return of the verdict in response to these, questions, judgment was rendered in favor of the ap-pellees for the 5 acres of land claimed by them. The following facts are disclosed by the record: D. J. Lawrence and wife, A. M. Lawrence, are the common source of the title under which both parties claim the land. On January 16, 1905, D. J. and A. M. Lawrence conveyed to appellee R. W. Houk, for a recited consideration of $1, a tract of land described as follows: “Beginning at the southwest corner of the Daniel J. Lawrence 350-acre home tract in the Henry Griffith league in said Chambers County, Texas, being the same land conveyed to Daniel T^aw-renee by B. F. Wilburn and H. Wilburn; thence, easterly along the south line of said 350-acre tract to a point south of the southwest corner of the C. E. Lawrence 50-acre tract in said 350-acre tract; thence, north far enough so that a line run westerly parallel with the south line of said 350-acre tract to the west line of same; thence, to' place of beginning, will contain five acres of land; thence, westerly parallel with the south line of said 350-acre tract to the west line of same; thence, southerly along the west line of same to the place of beginning, containing five acres of land.” This deed was filed for record in the office of the county clerk of Chambers county on September 6, 1909, and was duly recorded in the deed records of the county. Thereafter by direct or mesne conveyance from Houle, the other appellees acquired certain undivided interests in this land, and together with R. W. Houk have and hold the title so acquired from Lawrence unless such title has been lost by the adverse possession and claim of appellant. The Old River Company, a rice ’farming corporation, on December 29, 1921, conveyed to appellant “all the mineral rights and estates (less a reserved ⅝2 royalty)” in several tracts of land in the Henry Griffith league, one of which, a tract of 150 acres, includes the 5 acres in controversy. This deed was filed for record on February 27, 1922, and duly recorded in the deed records of Chambers county. On December 6, 1923, the Old River Company, by deed filed for record on December 17, 1923, and recorded in the deed records of the county, conveyed to appellant Kirby Petroleum Company the 150-acre tract described in the mineral deed above mentioned and also the ⅜2 royalty interest reserved in the mineral deed. After its purchase from the Old River Company the appellant in January, 1924, took possession of the 150-acre tract of land and has since that time held exclusive adverse possession, using, occupying, and cultivating the same and paying all taxes thereon as they became due for the five years next succeeding its purchase of the land. This suit was filed October 25, 1929. Mr. R. W. 1-Iouk testifies in substance that after he was informed in 1921 that the Old River Company was in possession of the 5-acre tract of land or at least a part of it and might be claiming it by limitation, he went to Dr. Collier, the president of the Old River Company, to learn if the company would claim the land, and that Dr. Collier stated to him that the Old River Company had not and would not claim the 5 acres by limitation, and that he (Houk) then told Dr. Collier that it would be agreeable for the Old River Company to continue to use the land if it would not claim it by limitation and Collier agreed to hold the land with that understanding, and would send Houk a written memorandum of the agreement, and Houk left his deed with Collier to enable him to prepare the written, memorandum. .Dr. Collier fully corroborated Mr. Ho-uk as to the substance of this verbal agreement. He further testified: “I have seen Mr. Houk frequently all these years, occasionally, but I never had any other conversation with him about it until since they have been drilling down there. From the time he left that deed with me until the actual controversy arose about the rights there some time last year, I had never indicated that my attitude toward him and his title was any different than what I said in that conversation. Whatever I said in that conversation expressed my attitude, and that remained my attitude towards him until now.” “Nothing occurred that indicated that the Old River Company’s attitude with reference to this claim was different from what. I said my personal attitude was; there has been nothing occurred because I .just put the dee'd away and forgot about it. I was president of the Old River Company. ⅜ * ⅜ I am s.ure that he knew I was president i>f the company. I am the man that he would *418 have gone to to find out about an affair of this hind.” The trial court submitted the following special issues to the jury, which were answered as shown under each issue: “Question No. 1. Did D. J. Dawrence ever claim as his own the five-acre tract of land in controversy after he executed the deed of date January 16, 1905, whereby he conveyed to R. W. Houk said tract of land? (Answer ‘Yes’ or ‘No,’ as you find the fact to bé.) Answer: ‘No.’ ” “Question No. 2. If you answer ‘No’ to the foregoing question, then you need not answer the next succeeding question No. 2, but if you answered ‘Yes’ to said question No. 1, and only in that event, then answer the following question: During what period of time did D. J. Lawrence claim as his own the said five-acre tract of land? (In answering this question, you will give the date when such claim, if any, began and when it ended.) Answer: Not answered.” “Question No. 3. Did George W. Collier, on the occasion of Houk’s visit to his office, say substantially to Houk that he (George W. Collier) and the Old River Company had not claimed and would not claim by limitation the said five-acre tract of land? (Answer ‘Yes’ or ‘No,’ as you find the fact to be.) Answer: ‘Yes.’ ” "Question No. 4. Did R. W. Iiouk, on the same occasion, say substantially to George W. Collier that it would be agreeable to Houk for the Old River Company to continue to use the said five-acre tract of land if said company would not claim - the land, and did George W. Collier, upon that occasion, agree to act in accord with that understanding and say.that he would gend Mr. Houk a written memorandum or statement to that effect? (Answer ‘Yes’ or ‘No,’ as you find the fact to be.) Answer: ‘Yes.’ ” “If you have answered ‘Yes’ to either special issues No. 3 or 4, and only in that event, you will answer the following: “Question No. 5. Did the conversation referred to in the preceding questions Nos. 3 and 4, between Mr. Houk and Dr. Collier, occur in 1921 or 1923? (Answer by naming the year.) Answer: ‘1921.’” At the request of plaintiff in error the trial court filed the following ■ findings of fact and conclusions of law: “Findings of Fact. “(1) I find from the undisputed evidence that the defendant, Kirby Petroleum Company, did not have any actual notice or knowledge of the alleged tenancy relationship or of the conversation or agreement inquired about in this question until some time in the latter part of the fall of 1929. “(2) In answer to question No. 2, I find from the undisputed evidence that the defendant first had actual notice or knowledge that plaintiffs were claiming the land sued for herein, or an interest therein, in the latter part of the fall of 1929, and that at the same time defendant first received actual notice of the deed in question. I further find from the undisputed evidence that the abstracts of title examined by the defendant in connection with the conveyance to it of said property by Old River Company in 1923, as well as supplemental abstracts thereafter obtained and examined by it covering said property, did not contain the said deed from D1. J. Lawrence and wife to R. W. Houk, or any of the oth'er instruments in plaintiffs’ chain of title, although said deed to Houk, executed and delivered in 1905, was duly filed for record in the Deed Records of Chambers County, Texas, in 1909, and that, therefore, defendant had constructive notice of said deed notwithstanding the failure of the ab-stractor to include the same in defendant’s abstract of title. “(3) I find from the undisputed evidence that the defendant established five years limitation title under the statute to the land in controversy by virtue of its own acts following said deed to it from Old River Company, but for the fact that the jury found in answer to special issues No. 3 and No. 4 in the main charge of the court that the possession of Old River Company, the defendant’s grantor, was that of a tenant and was permissive and not adverse to plaintiffs, such finding rendering the possession of defendant likewise permissive and not hostile or adverse to plaintiffs, the possession of the defendant being practically the same as that of Old River Company, and the evidence being insufficient to show any repudiation of such tenancy relation, although the defendant had no notice or knowledge of such tenancy relationship between plaintiffs and its said grantor prior to the completion of such five-•year period, unless notice of such relationship be charged to defendant by reason of the recording of the deed from D. J. Lawrence and wife to plaintiff Houk. “Conclusions of Law. “The jury having found in answer to special issues No. 3 and No. 4 that the possession of the land claimed by plaintiffs herein by Dr. George W. Collier and Old River Company, grantors in defendant’s chain of title, was not adverse or hostile to plaintiffs, and that Old River Company was plaintiffs’ tenant, I conclude that, by reason thereof, the possession of defendant was not adverse or hostile to plaintiffs notwithstanding its lack of actual notice or knowledge of such tenancy relationship between the plaintiff's and its grantor, and that consequently defendant is not entitled to judgment under its plea and defense of five years limitation.” • *419 These findings of fact by the trial court, the case having been submitted to a jury on fact issues, are not required by the statute and cannot be given the force and effect of findings made by the court in cases not submitted to a jury, and therefore are not inserted in this opinion as entitled to the same consideration as fact findings in a case submitted to the court without a jury, but are merely copied as a correct statement of the facts shown by the undisputed evidence and as the conclusions of the court upon the facts found by the jury. The deputy collector of taxes for chambers county testified: “My name is W. K. Einley. I am Deputy Tax Collector, with the county here; I have been in the Tax Collector’s office or connected with it since 1915, I believe, ever since February, 1915, I think. I have my tax receipt records showing the payment of taxes, State, county and other taxes, assessed and collected through my office on the Kirby Petroleum Company lands in this county. My tax receipt records show their taxes rendered and paid for by the Kirby Petroleum Company on the Henry Griffith league, 840.38 acres. That receipt is dated January 30, 1925. That covered all 'State, county and school taxes that were assessed for that section. That receipt is numbered 164. My records show for 1925, the same acreage, 840.38; that was paid January 30, 1926, and the receipt is numbered 138. That was for the land in the Griffith league only. Por 1926, my records show 830.38. That was paid January 31,1927, and the receipt is numbered 170. I do not know why the difference in acreage between 830 and 840. 1927 shows 840. That was paid January 30, 1928; the receipt is numbered 177. 192S records show S40.38 abres. That was paid January 31, 1929, the receipt being numbered 157. 1929 records show 840.38 acres. That was paid January 15, 1930; the number of that receipt is 1033. We get the amount of taxes and the acreage assessed or rendered on these receipts from the tax assessor’s rolls; we make that up from the tax assessor’s rolls which are furnished us, and to make out these bills and receipts for taxes that have been paid by the Kirby Petroleum Company during these years on this acreage, that is taken from the tax assessor’s rendition records.” The undisputed record evidence shows that the deed under which appellant claims to have acquired title by limitation to the 5 acres in controversy conveyed to it some fifty tracts of land in several original surveys, twelve of which tracts were out of or on the Henry Griffith league, and one of these Griffith league tracts of 150. acres includes the 5-acre tract in controversy. The entire acreage in the Griffith league conveyed to appellant by this deed was 840.38. While the number of acres on the Griffith league rendered for taxes by appellant for the year 1926, as shown by the tax assessor’s and collector’s records, was only 830.38, such discrepancy is shown by the uncontradicted evidence to have been due to the fact that in 1925 appellant sold a tract of 10 acres on the Griffith league, that was separate and distinct from, and included no part of, the 5 acres in controversy. We cannot agree with appellees that this evidence does not show a sufficient compliance with the provisions of the five-year statute of limitation in regard to the payment of taxes by a claimant of . land under that statute. Appellees’ contention that the rendition and payment of taxes by appellant upon all of the land in the Griffith league conveyed to it by the Old River Company, including the 5-acre tract in controversy, does not entitle appellant to prescribe under the five years’ statute of limitation because the 5-aere tract was not separately rendered and the taxes thereon paid separately from the ferger tract of which it is a part, is unsound. The record shows that all of the 150-acre tract of which the 5 acres was a part, together with a number of other tracts conveyed to appellant by the same deed of conveyance, had been exclusively occupied and used by appellant’s vendor and by appel-lalnt as a rice farm. When appellant rendered and paid the tares on all of the land on the Griffith league conveyed to it by the deeds under which it claims, and which was so occupied and used by it, it fully complied with the requirements of the statute in this respect. Guerguin v. City of San Antonio, 19 Tex. Civ. App. 98, 50 S. W. 140; Moody-Seagraves Co. v. City of Galveston (Tex. Civ. App.) 43 S.W.(2d) 987. It is hardly necessary to cite authority to sustain the proposition that appellánt having held exclusive adverse possession of the land for more than five years before the suit was filed, under duly recorded deeds, and having paid all taxes thereon as they accrued, acquired title to the land under the five years’ statute of limitation, regardless of whether its grantor had any title. This has long been the settled law of this state. The only restriction upon the right of one claiming title 'by limitation under the five years’ statute is that the statute shall not apply to .one who deraigns title through a forged deed or who is “claiming under a forged deed, or deed executed under a forged power of attorney.” Article 5509, R. S. 1925. The facts which constitute these restrictions are wholly absent from this case. Some of the many eases sustaining the rule above stated that .when the other requirements of the statute, are fulfilled, the title of the grantor in the deed under which the claimant holds, and the good faith of the claimant in taking possession under the deed are immaterial, are: Hunton v. Nichols, 55 Tex. 217; Roseborough v. Cook, 108 Tex. 364, 194 *420 S. W. 131; Holland v. Nance, 102 Tex. 177, 114 S. W. 346; Hutchison v. Dwyer (Tex. Civ. App.) 289 S. W. 1021; Houston Oil Co. v. Jones, 109 Tex. 89, 198 S. W. 290; McDonough v. Jefferson County, 79 Tex. 535, 15 S. W. 490; Davis v. Howe (Tex. Com. App.) 213 S. W. 609. If knowledge of the fact that his grantor in the deed under which defendants claim had previously conveyed the land, or the defendant’s knowledge of fraud in the execution of the deed by his grantor would destroy defendant’s right to acquire title .under the five years’ statute, there is no evidence of such knowledge on the part of appellant. While it is true that the prior deed under which appellees claim was of record at the tim.e appellant took its deed from the Old River Company, and appellant was charged with constructive knowledge of that deed, and could not claim the rights of an innocent purchaser, it had no actual knowledge of such deed, and the undisputed evidence shows that it had no knowledge of the agreement between Mr. Houk and Dr, Collier that the Old River Company would hold the 5-acre tract of land as a tenant at will of appellees. If the evidence had shown any actual or legal fraud on the part of the Old River Company or its president, Dr. Collier, in conveying the land to appellant, it could not be charged with the burden of such fraud. Davis v. Howe, supra; Duncan v. Gragg (Tex. Civ. App.) 242 S. W. 491; Ludtke v. Smith (Tex. Civ. App.) 186 S. W. 266. It is clear to us that the conclusions of the trial court that the findings of the jury to the effect that in 1921 Dr. Collier, the president of the Old River Company, agreed with Mr. Houk (who was then acting for himself and the -other appellees) that the company wduld not claim the 5 acres of land by limitation but would continue to occupy and use it as the tenant at will of appellees, prevented the subsequent possession and use of the land by the appellant under its deeds from the Old River Company from .becoming adverse to appellees, is unsound and not supported by authority. In the first place, as we have before stated, appellant had no knowledge of this agreement between Dr. Collier and Houk until a short time prior to the institution of this suit. It purchased the land in 1923 in (reliance upon the title shown in the abstract furnished it by the Old River Company which did not contain any mention of the deed to Houk, in 1905, from a remote grantor of the^ Old River Company, and there is no evidence of any fact within its knowledge which could have put a reasonably prudent person upon inquiry which, if pursued with reasonable diligence, would have given it information of the secret agreement between Houk and Dr. Collier. After its purchase it took exclusive possession and continued to so hold, use, and cultivate .the land for more than five years. The fact that the whole of the large farming property purchased by appellant from Old River Company was in the main used and cultivated in the same manner as it had been theretofore used by the Old River Company, and that a number of the tenants of the Old River Company remained tenants of appellant, and that Dr. Collier, in 1924 and 1925, as Hie agent of appellant procured tenants on some of the land for appellant, did not render appellant’s possession, of the land insufficient to put appellees upon notice of appellant’s claim of ownership. Collier never lived on the land and was never in control' and possession of any part of the rice farm after its purchase by appellant. There is an entire lack of any evidence tending to show that appellees had any notice that Dr. Collier in 1924 or 1925 as an agent of appellant was procuring tenants for the Old River rice farm. The evidence shows that by deeds placed of record and shown on the abstract furnished appellant by its vendor, tbe 150-acre tract of which the land in controversy is a part was sold by the appellees’ grantors after appel-lees’ deed was executed and that numerous leases were made thereon by the immediate or intermediate grantors through whom the Old River Company obtained its title, and also by the Old River Company. In this sit- • uation it devolved upon appellees, in order to suspend the operation of the statute of limitation and defeat the rule of estoppel against them, to use due care and diligence to give notice of their rights in the land, and not blindly rely upon the promise of Dr. Collier, which he forgot to fulfill, to give them a written acknowledgment of tenancy. We think, the undisputed evidence in this case, as was said by this court in the case of Griswold v. Comer (Tex. Civ. App.) 161 S. W. 423, shows that the slightest diligence on the part of ap-pellees wquld have enabled them to learn of the adverse and actively asserted claim and open visible possession of appellant. In this situation every principle of equity protects appellant against the assertion of the secret agreement of tenancy -on the part of Dr. Collier. ’While there is no proof of actual knowledge by appellees of the adverse possession of appellant, its possession and claim were so open and visible that appellees must be charged with notice thereof. 2 Tex. Jur. p. 77. The possession and claim of appellant to the land was so open, visible, and notorious as to put the community in which the land was situated upon notice it was holding, cultivating, enjoying, and claiming the land as its own, and appellees must be charged with such notice. Village Mills Co. v. Houston Oil Co. (Tex. Civ. App.) 186 S. W. 785; Billingsley v. Houston Oil Co. (Tex. Civ. App.) 182 S. W. 373. The two deeds under which appellant claims only convey the title to the whole of the surface and one-half of the minerals un *421 der tlie land, and tlie title acquired by its adverse possession and claim to tbe land is restricted by tlie terms of tbe deed to tbe interests therein described. Tbe conclusions above expressed require that tbe judgment of tbe-court below be reversed and here rendered in favor of appellant ; that appellees take nothing against it as to tbe title to tbe surface of tbe land in controversy and one-half of the minerals thereunder. Tbe remainder of tbe judgment is undisturbed. Reversed and rendered.