Stewart v. Marshburn

WALKER, J. This was an action of tres- pass to try title,, involving the George T. W. Collins league in Tyler county. As to that portion involved in this appeal, ail parties claim under Cyrus S. Aiken, to whom the land was conveyed by David O. Warren on the 10th day of January, 1842, while he was the husband of Mildred Aiken. On the trial it was agreed: “On, to wit, April 3, 1833, Cyrus S. Aiken and his wife, Mildred Aiken, were legally married in Alabama, and. lived together as man and wife thereafter up to the time of his death on January 10, 1843, their residence and domicile being at all times during their married life in Alabama, and she, the said Mrs. Mildred Aiken, widow of Cyrus S. Aiken, continued after his death to live in Alabama up to the time of her death, which occurred on, to wit, July 7, 1843. “Neither Cyrus S. Aiken nor his wife, Mildred Aiken, had any children. “Cyrus S. Aiken died January 10, 1843; left neither father nor mother surviving him, and never had any brothers or sisters except the following, to wit: ‘William Aiken, John G. Aiken, James L. G. Aiken, Jane Love Aiken,’ all of whom survive Cyrus S. Aiken.” [1-3] The deed from Warren to Aiken recited a cash consideration on its face of 84,000, which the trial court found was actually paid therefor, and was the separate estate of Cyrus S. Aiken. Such finding made the land the separate property of Cyrus S. Aiken, and, under the laws of descent and distribution in force in this state at the time of his death, the land descended to his brothers and sisters, to the exclusion of his •wife, but, as it was acquired during coverture, the presumption was it was community property and, on the death of Cyrus S. Aiken, descended to Ms wife, to the exclusion of his brothers and sister. Thus, under the laws of Texas in force at the time of the death of Cyrus S. Aiken, the actual legal title to the land descended to and vested in the brothers and sisters of Cyrus S. Aiken,- to the ex333 elusion of his wife, but the apparent legal title descended to and vested in bis wife, Mildred Aiken, to the exclusion of bis brothers and sister. Sanborn v. Schuler, 86 Tex. 116, 23 S. W. 641. Appellee acquired 78 per cent of the apparent Mildred Aiken title to the land now in controversy. He also acquired an interest in the l'and through the heirs of the brothers and sister of Cyrus S. Aiken. One of the appellants, Houston Oil Company, also acquired an interest in the Mildred Aiken title to the land, but is not asserting that claim on this appeal. All of the appellants are claiming under the brothers and sister of Cyrus S. Aiken. The trial was to the court without a jury and judgment was rendered for appellees for 78 per cent, of the land on the ground that they were innocent purchasers of that interest in the apparent Mildred Aiken title. The remaining 22 per cent, was divided among all the litigants in proportion to the interest held by them under the brothers and sister of Cyrus S. Aiken. Appellants attack the finding on the issue of innocent purchaser in favor of appellees, on the ground that it is not supported by the evidence. On the issue of innocent purchaser, the facts are substantially as follows: (1) L. H. Marshburn, one of the ap-pellees, and through whom the other ap-pellees hold, testified: “My name is L. H. Marshburn. 'Now, on or prior to November the 1st, 1918, prior to which time it is agreed that I got certain interests amounting to 78 per cent, of the title of the Mildred S. Aiken heirs, I did not have any knowledge of the law of Alabama such as pleaded here in regard to moneys, etc., belonging to the separate estate of the husband. Prior to that time X did not know of any facts that would make this land coming to Cyrus S. Aiken during his marriage to Mildren Aiken his separate property. I do not remember just the date when I first knew of any claim' that, under the law of Alabama, or any state in fact, this property was the separate property of Cyrus S. Aiken, but it was not very long before Banks —John O. Banks — intervened in the suit down at Beaumont. (It was here agreed that it was about May 1st, 1919.) He came to me and said: ‘I want to intervene in the suit. It was just a short time before the suit. I think I talked to Mr. Orgain about it about the same time. At the time I made purchases prior to November 1st, 1918, from Mrs. Aiken’s heirs, I did have legal advice as to the title being in them. I had this advice from Mr. Gordon-well, I had advice before I ever consulted Mr. Gordon. When I first got into the case, just after this, judgment, Mr. Johnson advised me — • Judge Johnson, and also Judge Gordon, Mr. Shivers — I think I talked to him about it. I think that was all. I talked to Mr. Lee about it some. They told me the title was in the heirs of Aiken’s wife, Mrs. Mildred Aiken. I acted on the advice of my attorneys and these other attorneys I talked to saying that Mrs. Aiken’s heirs had title to the land. I paid these various sums of money recited in the deeds from the parties for that title, believing I was getting a good title. I think it was in the fall of 1916 that I first acquired any of this land. At the time I bought my first interest in there, I do not think I had any abstract — I am almost sure I did not. I consulted Mr. Shivers and Mr. Thomas about what the record shows with reference to the powers of attorney claimed by some of the heirs of Cyrus S. Aiien, independent' of Mildred Aiken. I asked him this: There were some powers of attorney, I understood they had some powers of attorney from the Aiken side. I wanted to know if they had any claim before I bought the Mildred Aiken side. They advised me they had no claim, so I bought the other title. I wanted to know whether they asserted any claim under the Aiken side. I went to those men because I knew there had been a claim asserted from that source, and as I wanted to know— because they were lawyers and I thought they could tell me — if they were still asserting claim from that side, and they said they were not. I understood that Shivers had power of attorney from the Aiken heirs — he said he did. I am very sure he told me he had powers of attorney. I don’t know about those particular two — Norma Aiken and Alma Aiken — but from the Aiken side of the house, and I investigated their claim and saw that they had nothing. I am not sure that he said he was the attorney — or withdrew the suit or something.” (2) A suit was instituted in 1912, in the district court of Tyler county, by those claiming under the brothers and sister of Cyrus S. Aiken, seeking to recover the land from the Houston Oil Company. This suit was referred to by Marshburn in his testimony above quoted, and as to this suit the trial court made the following finding: “I further find, as shown by the entries on the disposed of docket of the district court of Tyler county, Texas, that such docket of said court shows cause No. 3207, A. A. Aiken, William G. Aiken, Norma Aiken, Katie Aiken, John G. Aiken, Irma B. Aiken, Alma Aiken v. Houston Oil Company of Texas; the entries on such docket showing that said suit was filed in 1912, and was continued from time to time until on February 8th, 1915, the final entry on said docket is: ‘2/8/15. .Dismissed on agreement, and costs charged against plaintiffs and case dismissed without prejudice against either plaintiffs or defendants.’ ” (3) In 1913 the Houston Oil Company placed a tenant on this land, who remained continuously in possession thereof as tenant of the Houston Oil Company until after this suit was, filed. (4) Mrs. E. S. MacDougall and others, claiming under the heirs of Mildred Aiken, brought suit for the land in controversy against the Houston Oil Company, in the district court of Tyler county. Afterwards, one E. J. Conn intervened in that suit, claiming the land. The MacDougalls and the Houston Oil Company then pooled their interests, agreeing to hold it in common, each to have a one-half interest therein. On the 8th day of August, 1916, judgment was entered in [334] •the district court in favor of E. J. Conn for an undivided V22 interest in the land and to the Houston Oil Company and the Miac-Dougalls for the remaining 19/22- On appeal, the judgment in favor of E. J. Conn was reversed and rendered against him in favor of Houston Oil Company and the MacDougalls. (5) The appellees afterwards acquired the MacDougall interest. (6) It was agreed that the Houston Oil Company acquired a percentage of the true legal title before this suit was instituted; but it does not appear from the agreement or otherwise, when such title was acquired. We believe this statement of the case sufficiently full to discuss the questions raised by this appeal on the issue of innocent purchaser. [4] We have already determined that the true legal title descended to, and vested in, the brothers and sister of Cyrus S. Aiken, to the exclusion of his wife, but that the apparent legal title descended to, and vested in, his wife, to the exclusion of his brothers and sister. This apparent title descended to her heirs and a bona fide purchaser from them would be protected in his title. Sanborn v. Schuler, supra. But, as appellees were.purchasing only the apparent legal title against the true legal title, the burden rested on them to show that they were innocent purchasers for value. They rested under the same burden imposed by law on a junior purchaser against a prior unrecorded deed. Sanborn v. Schuler, supra. To meet that burden, such á purchaser “must prove payment of the purchase money and absence of notice of the older conveyance.” Roberts v. Pettus, 80 Tex. 425, 15 S. W. 1093. That is to say, appellees in this case were required to prove payment of the purchase money and absence of notice of the true legal title at the time .they bought. No issue is made against the finding that appellees paid value for the land. [5] But we do not believe that Marshburn, representing the appellees, discharged the burden of proving that he purchased without notice of the true legal title. The Houston Oil Company had a tenant in possession of this land when Marshburn bought. As a matter of law, this visited him with full legal notice of whatever title the Houston Oil Company was then claiming. Moore v. Chamberlain, 109 Tex. 67, 195 S. W. 1135; Houston Oil Co. v. Choate, 232 S. W. 285. The Houston Oil Company acquired an interest in the true title before the suit was filed. In, the absence of any showing as to when that interest was acquired, the burden rested on appellees to show that they acquired the apparent title .before the Houston Oil Company, which was in possession of the land by tenant, acquired the true title. [6] Of course, if the Houston Oil Company owned a percentage of the true title, it was a tenant in common with the other owners of the true title, and its possession, through its tenant, was the possession of all of its tenants in common. Davidson v. Green, 27 Ter. Civ. App. 394, 65 S. W. 1111. [7] But appellees advance the proposition that possession of the Houston Oil Company, through its tenant, should be referred to the holding in common with the MacDougalls, and sufficiently explains such holding, so that they were relieved of the burden of making further inquiry, and that such holding shifted the burden to appellants to show when the Houston Oil Company acquired the true title. We cannot agree with the proposition thus-advanced. Possession of land by a tenant is notice to all the world of the actual title-claimed by the landlord and all of the sources of title through which he claims. Such possession cannot be explained by an apparent title, though consistent with such possession. Moore v. Chamberlain, supra. Houston Oil Co. v. Choate, supra. If Marshburnreferred the possession of the tenant to the-claim of the Houston Oil Company, held by it in common with the MacDougalls, he did so-at his peril, and against that possession he could recover only by showing that the Houston Oil Company did not own an interest in the true legal title at the time he purchased.. [8] From the statement made by us, it appears that Marshburn had actual notice of' the claim to this land asserted by the true owners. Such notice, as a matter of law, visited him with knowledge of all the facts: that an inquiry of the true owners would have disclosed. Bounds v. Little, 75 Tex. 320, 12 S. W. 1109. No inquiry was made of the-attorneys who had represented the true owners as to the basis of their claim; Marshburnasked them for no facts. He wanted to know-only whether or not they were asserting any claim to the land, under their powers of attorney from the heirs of the brothers and sister of Cyrus S. Aiken, and was informed that they had abandoned their claims. Possibly an inquiry as to the facts would have disclosed all the facts disclosed by the record. The burden rested on Marshburn to show that such an inquiry would' not have-given him the true facts. The attorneys may have abandoned their claims with the full' knowledge of all the facts reflected by this-record, believing that, under such facts, their-clients had no title. Certainly, if the attorneys of whom Marshburn made inquiry had' disclosed the facts to him, showing that the-legal title was in their clients, even though they believed that their clients had no interest, and though they themselves had abandoned their claims to the land, it could not be insisted that Marshburn was an innocent purchaser, in face of the record of the old suit, showing that it was dismissed without prejudice to either party. And in- this connection, we say further, that it is our judgment that the attorneys were not in position to bind the heirs by any statement made by them, and that Marshburn was under the335 burden of showing that an inquiry directed to the heirs themselves would not have disclosed the facts as to the true title. Bounds v. Little, supra. We accept as sound appellees’ proposition on this point: “Given the purchaser, under proper deed, who has paid valuable consideration, his bona fides is essentially a question of negligence vel non in accepting his title.. If he acquire apparently valid title without actual knowledge of defect, he is protected, unless circumstances put him upon inquiry. Then, unless reasonable inquiry would probably have informed him of the facts relied upon which would defeat his title, failure to make inquiry is excused. But if he make such proper inquiry as under all the circumstances one acting in good faith would make, and resulting from such inquiry the information obtained would satisfy a prudent man with the lights then before him, then he is.protected as a bona fide purchaser, having fully discharged the burden which the duty of inquiry had put upon him. In such case the duty of inquiry is but a duty to exercise such ordinary care as the circumstances appear to call for and whether a given state of facts show proper discharge of said duty is not a question of law, but essentially and decidedly one of fact, and the finding of a jury or the trial judge thereon is equally conclusive with such finding on any other question of fact. Such is the law, as thoroughly established by Texas decisions,” citing Bacon v. O’Connor, 25 Tex. 225-226; Bowles v. Belt (Tex. Civ. App.) 159 S. W. 888; Slayton v. Singleton, 72 Tex. 213, 9 S. W. 876; Pipkin v. Ware (Tex. Civ. App.) 175 S. W. 811. But in meeting the burden imposed on the purchaser by this proposition, the law affirmatively says that he cannot discharge the duty owed by him to the true owners, when he knows that they are asserting a claim to the land, except by an inquiry directed to-them or to some one with authority to represent them. No matter how diligent he may be in all other respects, no matter what information he may have from other sources, in the absence of inquiry of the claimant himself, or of one with authority to speak for him, he is visited with knowledge of all the facts that such an inquiry would have disclosed. Bounds v. Little, 75 Tex. 320; Houston Oil Co. v. Wilhelm, 182 Fed. 474, 104 C. C. A. 618. The burden rested on Marshburn to show that an inquiry would not have given him notice of the facts that made the brothers and sister of Cyrus S. Aiken his heirs, to the exclusion of his wife. They had prosecuted their claim for three years and then dismissed their suit without prejudice to their claim. No presumption arose in ap-pellees’ favor from this fact. Hence we conclude that the court’s finding, that an inquiry of the heirs would not have revealed their title, is not supported by the evidence. When he bought the land in controversy, Marshburn knew that Cyrus S. Aiken was a married man and a citizen of Alabama at the time he (Aiken) purchased it from Warren. He was put on notice of the fact by recitals in the deed that the consideration for the land was a cash consideration. Appellants advance the proposition that appellees, by force of this information, were visited with knowledge of the laws of Alabama relating to the ownership of the $4,000 consideration paid for the land and took their title with the presumption against them that it was the separate property of Cyrus S. Aiken, and, on his death, descended to his brothers and sister, to the exclusion of his wife. We do not agree with this,proposition. Appellees were dealing with Texas property. In the absence of knowledge to the contrary, they could deal with it on the presumption that the laws of Alabama were the same as the laws of Texas. Of course, this presumption is one of fact and not of law, and was subject to be rebutted by pleadings and proof. Appellants did rebut it, and showed that the cash consideration was the separate estate of Cyrus S. Aiken, though, under the laws of Texas, presumed to be community property. But, if Marshburn had no knowledge of the true ownership of the consideration, and knowledge of the fact that Cyrus S. Aiken was a citizen of Alabama at the time he bought the land did not put him on inquiry as to the ownership of the consideration, he had-the right to deal with it as community property. We conclude that the findings on the issue of innocent purchaser in favor of appellees are not supported by the evidence. Therefore, the judgment of the trial court is in all things reversed, and this cause remanded for a new trial. Footnotes [1] <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] @=»For otter oases seo same topic and KEY-NUMBER in all Key-Numbered Digests and Iddexes