Liddell v. Gordon

HODGES, J. The appellants filed this suit on April 11, 1919, against the appellee to recover an undivided half interest in a tract of 66 acres of land situated in Lamar county. The facts show that the property originally belonged to Reuben Liddell and his wife, Lucinda, and that they occupied the premises as their homestead. Reuben and Lueinda were the grandparents of the appellants. Reuben died many years before this suit was filed,-' and was survived by his wife and two children, Charley and .Cynthia, all of whom were dead at the time this controversy arose. The appellants are the children of Charley Liddell, and claim title by inheritance to his one-half intei’est in the land. Cynthia left one child, George Lid-dell, under whom the appellee Gordon claims. Among other defenses interposed to this suit is that of limitation, based upon the 5 and 10 year statutes. In the first trial of this case the court gave a peremptory instruction for the defendant. On appeal that judgment was reversed upon the ground that the evidence presented an issue which should have been submitted to the jury. See Liddell v. Gordon (Tex. Civ. App.) 226 S. W. 459. This appeal is from a judgment against the appellants, plaintiffs below, based upon an adverse verdict of a jury. The appellants rely on their title by inheritance from their father. In the trial below the appellee, Gordon, established the following chain of title by the records of Lamar county: (1) A deed from Lucinda Liddell to George Liddell dated April 28, 1902, consideration being $1 and love and affection. It pppears that this deed was recorded one month after the date of its execution. (2) Deed of trust from George Liddell to Benjamin Graham as trustee for the American Freehold Land Mortgage Company, dated April 28, 1902. This deed was to secure a debt for the sum of $600, due December 1, 1907. (3) George Liddell to F. T. Gunn, warranty deed dated March 18, 1905, consideration being $207 cash and the assumption by Gunn of the $600 incumbrance described in the deed of trust to Graham. (4) Deed of conveyance from F. T. Gunn to George Liddell dated February 15, 1910, consideration being $200 cash and the assumption by Liddell of the $600 indebtedness previously mentioned and three notes aggregating $500. (5) A renewal deed of trust from George Liddell to Robert G. Patton, trustee for the American Freehold Land Mortgage Company, securing the original $600 and some other indebtedness. (6) Deed of conveyance from T. M. Scott, substitute trustee for the American Freehold Land Mortgage Company, to D. H. Scott, dated March 7, 1916, consideration, $1,400, paid. (7) Deed of conveyance from D. H. Scott to the appellee, J. A. Gordon, on the same date, consideration, $300 paid, and five notes for $200 each. The appellee also relied upon evidence tending to show adverse possession by George Liddell and F. T. Gunn, under whom he claims, for more than 10 years prior to the time this suit was instituted. On the trial the court, in effect, instructed the jury that appellee had proved title to an undivided three-fourths interest in the land, and submitted only the issue of limitation under the five and ten year statutes. The jury found in favor of the appellee on his plea of limitation based upon the 10-year statute, but *752 against him on the other. The sufficiency of the evidence to support that finding is not questioned. Fourteen witnesses called by the appellee testified, in substance, as follows: Witnesses all resided in the vicinity of the land in controversy, and knew the parties to this suit, and had known the land since the spring of 1902. Both George Liddell and the plaintiff had resided practically all of that time in the immediate vicinity of the land. With the exception of the period during which F. T. Gunn held the title, George Lid-dell had openly and notoriously asserted claim to the exclusive ownership of the land, and was continuously in the possession of it, cultivating, using, and enjoying it, without recognition, as far as they knew, of the right of any one else. He cultivated a part of the land himself, and frequently rented a part to others, and had always collected the rents from his tenants. Witnesses never heard of the plaintiffs asserting any right to or interest in the land or the rents. During that entire time the place was commonly and publicly known and referred to throughout the community as the George Liddell farm. George Liddell repeatedly, openly, and publicly asserted claim and ownership of the land, and on many occasions publicly offered to sell or trade it to the witnesses. Eleven of those witnesses testified that they knew Lucinda Liddell; that she died in the spring of 1907, while residing on another farm where she had been living about two years prior to her death. Frank T. Gunn, one of the witnesses above mentioned, further testified that he bought the land from George Liddell in March, 1905; that while owning it he rented to George Liddell in the same manner he rented land to other tenants, and that Liddell paid him rent each year; that he (Gunn) regularly paid taxes on the land as they accrued and before they became delinquent; that he also paid regularly to the loan company the accrued interest on the loan against the land, which had been assumed by him; that at no time during the fiv.e years did any other person assert any claim .or interest in the land or the rents. In rebuttal Simon and Solomon Liddell, two of the plaintiffs, testified substantially as follows: That George Liddell never at any time prior to the mauing and filing of the deed from himself to F. T. Gunn on March 18, 1905, claimed the interest of either of those parties in the land, but always recognized their interest. George Liddell told them that he was staying there and taking care of his grandmother, who died about January, 1910. George Liddell for appellants testified that he went to live with his grandparents, Reuben and Lucinda Liddell, when a boy, and continued to live with them until both of them died. After the death of Reuben Liddell George took over the management of the land in controversy and worked it for his grandmother. He never prior to 1905 claimed the plaintiffs’ interest in the land. Up to that time he told them that the land was a home for them all; that he was merely staying there with his grandmother. He had had the management and control of the place for his grandmother during Gunn’s ownership, the same as before. lie paid all the taxes while Gunn had the deed, except one year. He lived with his grandmother until her death on January 29, 1910. The appellants attacked by affidavit the deed from Lucinda Liddell to George as a forgery. As evidence of its execution the ap-pellee offered the county court records for the year 1902. These showed the record of a deed from Lucinda Liddell covering the entire property to George Liddell, and that the original was taken out of the clerk’s office by George Liddell on May 22, 1902. He also proved by a witness who was a deputy county clerk in 1902 that the record of the filing of deeds in the office of the county clerk for that year was regularly and properly kept; and that the entry showing the delivery of the deed from Lucinda Liddell to George Liddell was in witness’ handwriting, and that witness did deliver the deed as shown by the entry. He also offered in evidence an unrecorded will executed by Lucinda Liddell, dated November 12, 1897, in which she bequeathed her entire estate to George Liddell. That instrument was offered, not as a muniment of title, but as a circumstance tending to show the execution of the deed. Appellee proved that Judge Sam O. Bryson, who appears to have taken the acknowledgment of Lucinda to the alleged forged deed, was a qualified and acting notary public of Lamar county from 1901 to 1903; that a diligent search had been made for his notarial record, but it could not be found; that Judge Bryson was a man of the highest personal integrity, whose honor was above reproach; that a diligent search had been made for the original deed, but it could not be found. George Liddell, testifying for appellants, said that Judge Rountree, of Paris, wrote the deed from his grandmother to him, and told him (George) to take the deed to Judge Bryson and have his grandmother sign it before Judge Bryson; that he took tlie deed as directed, and some time thereafter his grandmother went over to Judge Bryson’s house, and Judge Bryson gave him (George) the deed. He further testified: “I didn’t see my grandmother' sign the deed. Never heard her say she made her mark on it. She had no opportunity to do so. After Judge Bryson gave me back the deed I brought it to Paris,and got Scott & Baldwin to make me a loan on the land. I filed the deed the same day." The witness also testified that he later went to the clerks’ office and took the deed *753 out. He supposed, the deed was burned at tbe time tbe witness’ bouse was destroyed by fire. Upon tbis testimony tbe court admitted tbe alleged forged deed in evidence over tbe objection of tbe appellants. Tbe objection then urged was that tbe execution of tbe deed bad not been proved as required by tbe rules of common law. Tbe impeachment of tbe deed by tbe affidavit of forgery imposed upon the appel-lee tbe burden of proving, prima - facie at least, tbe execution of tbe original before tbe copy could be introduced in evidence. Whether or not that prima facie proof was made was a matter for tbe court to determine. But tbe admission of tbe copy at that stage did not settle tbe question of forgery. Either party bad tbe right thereafter to offer testimony upon that issue and to have tbe jury pass upon the sufficiency of tbe evidence to establish the execution of tbe deed. Houston Oil Co. v. Kimball, 103 Tex. 94, 122 S. W. 533, 124 S. W. 85; Thompson v. Johnson, 24 Tex. Civ. App. 246, 58 S. W. 1030. As part of the evidence tending to show a forgery appellants offered tbe statement of George Liddell that bis grandmother did not sign tbe deed. After having admitted that statement, it was later, on objection, excluded. Tbe qualification appended in allowing tbe bill of exception to tbe exclusion of that statement shows that tbe court regarded it as merely a conclusion of tbe witness, based upon other facts which be bad been allowed to narrate in detail regarding that transaction. There being no request that the issue of forgery be submitted to the jury, its final determination was left to tbe court. In deciding it the court bad the right to pass upon tbe credibility of the witness George Liddell, whose use of tbis deed immediately after its delivery to him was strangely at variance with tbe inference that it was a forgery. If tbe deed was not executed by Lucinda Liddell, or by some one for her, whose act she adopted, and George knew that it had not been so executed, then be was guilty of a fraud in knowingly using a forged instrument as tbe basis of the loan which be secured from tbe American Freehold Land Mortgage Company. • In view of the entire record, it cannot be said, as a matter of law, that tbe conclusion of the court regarding tbe issue of forgery would or should have been different had tbis excluded statement been formally retained in the record. Had that issue been left to tbe jury to pass upon, a different legal question would have been presented. Assuming, then, that tbe deed from Lucinda to George was valid and was properly admitted in evidence, we come then to the appellants’ assignment based upon tbe refusal of tbe court to submit tbe following special issue: “Did the plaintiffs have actual notice of the claim of title by George Liddell or Frank Gunn before the 11th of April, 1911?” An analysis of tbis interrogatory shows that it does not present tbe exact issue necessary to be decided in determining whether or not tbe defense of limitation had been established — that is: Did tbe plaintiffs have actual notice, prior to tbe date mentioned, that either Liddell or Gunn was claiming a title adversely? That both Liddell and Gunn, at different times, held a good title to an undivided interest in tbe land, is not disputed; nor is it denied that appellants knew that one or both of those parties were claiming title to such an interest during tbe entire period of time covered by their possession. A negatiye answer to tbe interrogatory is tbe only one which could have benefited tbe appellants. Xet such an answer was not warranted by the evidence, since it would imply that appellants did not have notice even of tbe real title which Liddell and Gunn held as joint owners of tbe property. For that reason tbe court was justified in refusing to submit tbe issue of notice in tbe form requested. But, even if there should be read into tbis interrogatory language which it did not contain, and treat it as an inquiry concerning an adverse claim of title by Liddell and Gunn, still tbe court was justified in refusing to submit that issue. If tbe proof was sufficient to show an adverse possession extending over a period of more than 10 years before tbe'filing of tbis suit in April, 1919 — • and there is no contention that it is not sufficient — tbe court could, under tbe evidence in tbis case, assume that tbe appellants bad notice or even charged with notice of tbe hostile claim. Tbe request of tbe appellants for a finding upon the issue of actual notice is based upon the assumption that in this case tbe rule applicable to controversies between coten-ants should control in determining the question of tbe origin of a title by adverse possession. In the case of Olsen v. Grelle et al. (Tex. Com. App.) 228 S. W. 927, a cotenant in possession of tbe common property executed a deed -conveying tbe entire title to a stranger, who later went into possession under his conveyance. In discussing the legal effect of that instrument as notice when placed of record and followed by possession thereunder, the court said: “That the eotenant not in possession must have actual knowledge of the fact that the co-tenant in possession is disputing his right to the property, or such cotenant’s possession and hostile claim must be so notorious as to authorize the ■ presumption that the other joint owner had knowledge thereof, is well established in this state. Stiles v. Hawkins, 207 S. W. 89, and authorities there cited. But it is equally as well established that where one *754 goes into possession of property under deed, or deeds, executed by a eoteuant, and purporting to convey the entire property, such possession is hostile to that of the cotenant, and he is charged with knowledge of the hostile character thereof.” See, also, authorities cited in notes 7th Ruling Case Law, pp. 854-5-6; also Allen v. Morris, 244 Mo. 357, 148 S. W. 905, Ann. Cas. 1913D, 1310. In the case last cited the Supreme Court of Missouri, after discussing the general rule regarding acts indicating a hostile claim on the part of a cotenant against another out of possession, says: “ ‘It is not essential, however, that it be shown that such acts were brought to the notice of the cotenant.’ ⅜ * * If such acts are such as to demonstrate to the immediate and surrounding neighbors and adverse claim, the co-tenant must take notice thereof. In other words, his knowledge must be the general knowledge of the neighborhood wherein the land is situated.” As proof of actual notice the appellee offered the testimony of 14 apparently disinterested witnesses, of the notoriety of the adverse claims assorted by Liddell to the land, of his offers openly made- to sell the land, and his undisputed, occupancy and col-' lection of the rents for a long period of time. It was further shown that the appellants resided in the immediate vicinity of the land; and the inference is that they had every opportunity to hear and know what was heard and known by the neighbors concerning the claims of Liddell. Notwithstanding the fact that the appellants went on the witness stand in rebuttal after this testimony had been offered by the appellee, they did not deny any material fact which those witnesses had stated, nor did they deny having actual notice of the deeds to the land which had been recorded by Liddell and Gunn. Neither did they claim ignorance of any of the overt acts indicating an adverse claim by either Gunn or Liddell. If they were indeed ignorant of these notorious acts, or of other important facts tending to show a hostile claim, or the making of those deeds, the appellants had an opportunity to testify to such ignorance. Their failure to do so at a time when their knowledge concerning those facts was an important subject of inquiry in determining a vital issue is too significant to be ignored. There are times when silence becomes vocal, and this was one of them. It is true the appellants were not required to prove that they did not have notice, in order to put upon the appellee the burden of showing notice, but, after the latter had offered such strong circumstantial evidence tending to show actual notice, the failure to rebut that evidence, when appellants might have done so, by their own testimony, justified the inference that they could not truthfully deny notice. Welsh v. Morris, 81 Tex. 159, 16 S. W. 744, 26 Am. St. Rep. 801; Bailey v. Hicks, 16 Tex. 222; Chandler v. Meckling, 22 Tex. 36; Galveston, H. & S. A. Ry. Co. v. Walker, 38 Tex. Civ. App. 76, 85 S. W. 28. As stated in the case of Olsen v. Grelle, supra, the rule requiring actual notice from a cotenant claiming by adverse possession against other co-owners is subject to an important qualification. When the co-tenant in possession is succeeded by a stranger who goes into possession under a deed, the possession and the record of the deed constitute constructive notice that the stranger is claiming all that his deed purports to convey. That was practically the situation created when Lucinda Liddell conveyed the entire title to George Liddell in 1902. Her deed was promptly placed on record. While George was on the premises at that time, he had no legal right of possession as a joint owner. Upon the death of her husband Lucinda had the exclusive right of possession of the premises during the remainder of her life. While George and the appellants shared the title with her, they did not participate in the right of possession. George was on the place, not as a joint owner, but as an employee or tenant. He testified that he was there managing the place for his grandmother. Her conveyance was essential to invest him with any right of possession as part owner. Previous to that time he had no more rights on the premises than did an entire stranger to the title. Hence he went into the legal possession under the terms of his deed, as would a stranger. That being true, the appellants were charged with all the notice which the record of that deed and the possession thereunder in legal effect gave out. The same is true of the deed from George to Gunn in 1905, while Lucinda was still living on the place. That deed purported to convey the entire estate. Robles v. Robles (Tex. Civ. App.) 154 S. W. 230; Carr v. Alexander (Tex. Civ. App.) 149 S. W. 218; Village Mills Co. v. Houston Oil Co. (Tex. Civ. App.) 186 S. W. 785. It is true that appellants and George Liddell testified that the latter was during the time prior to his conveyance to Gunn holding the property in full recognition of the appellants’ title. But that testimony only tended to explain the character of George’s possession after it began, and was not inconsistent with previous notice of its hostile appearance at its inception. Notice of a hostile deed is one thing; but a subsequent disclaimer of a part of what the deed purported to convey is quite another. The admissions of George relied on by the appellants were pertinent only as showing no continuity of an adverse claim, or as explanatory of a situation of which the appellants were bound to take notice. On objections which we think were untenable the court excluded certain declarations *755 made by George Liddell during the time he was holding as a tenant under Gunn. Those declarations tended to show that he (Liddell) was not then holding adversely to the appellants. Under the record as presented on this appeal, such testimony was immaterial upon any important issue. The. character of the claim of title, whether adverse to appellants or not, was, during that period, to be determined from the attitude occupied by Gunn, who was then the holder of the title, and not by that of George, the tenant. Any suit filed by the appellants at that time which involved the right of possession or the title would have been against Gunn, not George. For that reason the declarations of the tenant concerning his own concessions of title could not qualify the character of the claim asserted by his landlord. This suit has been pending for several years, and this is the second appeal. We feel that the litigation should be terminated, unless the record taken in its entirety indicates that an improper judgment has- been rendered. A very careful examination has convinced us that no reversible error has been committed. The judgment will therefore be affirmed.