Collum v. Sanger Bros., 82 S.W. 459

Collum v. Sanger Bros.

82 S.W. 459 | Tex. | 1904

Lead Opinion

The plaintiffs in error brought this suit to recover of defendants in error, P.P.R. Collum, his wife Elizabeth Collum, and W.M. Williams, an undivided one-fifth interest in a tract of land consisting of 160 acres patented to Narsiss Cates. The petition admitted that defendants Collum and wife owned an undivided two-fifths interest in the land, and that Williams owned also a two-fifths *164 undivided interest. Collum and wife in their answer claimed title to three-fifths of the land. Williams did not answer.

There was a judgment for the defendants in the District Court which, on appeal to the Court of Civil Appeals, was reversed and judgment rendered in favor of Sanger Brothers for the one-fifth interest as prayed for in their petition.

Narsiss Cates, the patentee, died in the year 1893, leaving as her only heirs C.D. Cates, R.G. Cates, D.C. Cates, Mont Cates and the appellee Mrs. Collum. Two years after her death, C.D. Cates and D.C. Cates sold their respective interests in the land to Mrs. Collum and executed to her a deed of general warranty, which was not recorded. Not long after the decease of Mrs. Cates, Mont Cates sold his one-fifth interest to R.C. Cates; and thereafter R.C. Cates and Mrs. Collum made a verbal partition of the land setting apart to the former two-fifths of the tract and to the latter three-fifths. The division line so agreed upon was marked by stone monuments and soon thereafter a fence was constructed upon it by the parties to the partition. From that time up to the time of the trial, Mrs. Collum had held possession of the part of the land so set apart to her through her tenants. R.C. Cates also took possession of the part set apart to him and he and his vendees have had possession ever since.

In the year 1900 the defendants in error obtained a judgment against C.G. Cates, one of Mrs. Collum's grantors, and caused an abstract thereof to be filed and recorded in the office of the county clerk of Wise County. They also caused execution to issue so as to preserve any lien that may have been created by the filing and recording of such abstract. On the 6th of December, 1902, execution was issued on said judgment and was levied upon C.G. Cates' interest in the land in controversy. The land was sold under the execution and defendants in error became the purchasers.

The sole question in the case is: Was the possession of the land by Mrs. Collum through her tenants notice to the defendants in error of her title through C.G. Cates? The trial court held that it was; but the Court of Civil Appeals ruled that it was not, and for that reason reversed and rendered the judgment.

We are of the opinion that the trial court ruled correctly upon the point.

That possession by a tenant is equivalent to the possession of his landlord as to the question of notice, is the settled law of this court. Watkins v. Edwards, 23 Tex. 448; Hawley v. Bullock, 29 Tex. 222; Mainwarring v. Templeman, 51 Tex. 205. The question then resolves itself into the further inquiry: Does the fact that the possession held by the party claiming the land is consistent with the recorded title relieve the purchaser or creditor of the duty of making inquiry of such possessor? There is much authority in favor of the affirmative of this question; and the Supreme Court of Iowa, following the doctrine of those courts which hold that possession under such circumstances is *165 not notice, ruled that the possession of one tenant in common is not notice of a title acquired from a cotenant, the conveyance not being recorded. May v. Sturdivant, 75 Iowa 116. But this court has made a contrary ruling. Wimberly v. Bailey, 58 Tex. 222 [58 Tex. 222]. In the case just cited Mrs. Bailey, as executrix of the will of her deceased husband, had, as she was empowered to do, settled with W.D. Bailey, one of the devisees under the will. He with his brothers and sisters, who were also devisees under the will, were entitled to the estate of the testator after the determination of the life estate of the executrix, their mother. He received of her a sum of money in payment for his interest under the will and also for his interest in her estate as a prospective heir; the latter in the nature of an advancement. If any instrument evidencing the transaction was executed, it was not recorded. Mrs. Bailey was in possession of the property until her death, and two of her heirs, who were also devisees under her husband's will, immediately occupied the property and continued to hold possession until the time of the trial. Four days after Mrs. Bailey's death, Wimberly, having obtained a judgment against W.D. Bailey, caused an abstract of the judgment to be recorded and a sale to be made of the land under execution, at which he became the purchaser. It was held that he acquired no title to the land, for the reason that the possession by the heirs was notice to him that the defendant in the judgment had parted with his interest therein.

In the recent case, Ramirez v. Smith, 94 Tex. 184, it was expressly stated as a general rule that the fact that the possession of one holding land is consistent with the recorded title, does not exempt a purchaser from the duty of inquiring of him as to any other title.

We think it a safe and salutary rule to require of a prospective purchaser of land to ascertain whether any other be in occupancy of it; and if there be such possession, to go to the possessor and ascertain the nature and extent of his claim. Possession is evidence of title, and it seems to us that common prudence and common honesty demand this course. If so the possession should be notice to him, and if notice to a purchaser it is notice to a creditor.

Following the decisions of this court, which have been cited, we think the judgment of the Court of Civil Appeals should be reversed and that of the District Court affirmed; and it is accordingly so ordered.

Judgment of Court of Civil Appeals reversed; judgment of District Court affirmed.

ON MOTION FOR REHEARING.

Addendum

In support of the motion for a rehearing in this case, it is urged that this court erred in finding as a fact that two years after the death of their mother C.D. Cates and D.C. Cates conveyed their interests in the land to Mrs. Collum, and it is pointed out that the findings of fact filed by the trial judge show that Mrs. N. *166 Cates died in 1893, and "that in 1885 C.D. and D.C. Cates, for a valuable consideration paid, sold their interest in the land to Mrs. P.P.R. Collum and executed to said Collum a deed with covenants of general warranty." It is insisted that this makes a material difference in the case. In 1885 the grantors in the conveyance mentioned had no interest in the land. Two years after their mother's death, to wit, in 1895, each had an undivided one-fifth interest. This suggests that 1885 is a clerical error and that it should have been 1895. The Court of Civil Appeals evidently so considered it, for they state in their opinion that the conveyance was made two years after the death of the mother. It would seem also, that in appealing the case it did not occur to counsel for defendant in error, who was the appellant in the Court of Civil Appeals, that the deed in question was executed at a time when the grantors had no interest to convey. The point that Mrs. Collum acquired no title by the conveyance is not made in the brief; nor even is it hinted at or suggested. It contains four assignments of error, each presenting the same point, namely, that Mrs. Collum's possession was not notice of her title, her deed not having been recorded. To emphasize this in their argument in support of their assignments, they say: "There is but one question involved in this case, and that is, was the possession of defendant Elizabeth Collum of said land notice to plaintiff of her claim under her unrecorded deed to the interest of her brother C.D. Cates? The court finds that the defendant Elizabeth Collum and C.D. Cates were heirs of N. Cates, deceased; that at her death, she being the sole owner of this land, it descended to her five children, each taking a one-fifth undivided interest in same. The children were tenants in common of said land after death of their mother, N. Cates. While the court finds that C.D. and D.C. Cates sold their respective interest in said land to their sister defendant Elizabeth Collum and made to her a deed to same, but that she did not have the same recorded until after the levy of plaintiffs' execution. The possession of the land by defendant Elizabeth Collum, after her purchase of her brother C.D. Cates' interest, was the same as before. She in her own right as heir to her mother owned a one-fifth interest in same, and as such owner was entitled to the possession of same, and her possession after her purchase of her brother C.D. Cates' interest was consistent with her right as heir and cotenant with her brothers, and was no notice to anyone of her claim to the interest she had purchased of her coheir and tenant in common C.D. Cates, under her unrecorded deed." The assignments and argument evidently concede that Mrs. Collum took title under the deed. The sole claim was that it was lost by reason of the statute which protects lien creditors without notice of unrecorded deeds. The Court of Civil Appeals considered the question of notice only and would not have been justified in considering any other. A party appealing a case is held to the position he has assumed in the court below. So in bringing a writ of error to this court he is confined to the points made in the *167 Court of Civil Appeals. Hence defendants in error can not in this court raise the question that Mrs. Collum had no title in the land, because her grantors had none when they conveyed to her.

We incline to think, however, that if we could consider the question, which was sought to be raised for the first time in this court, we would reach the same result. There is no statement of facts in the record. The trial judge states the character and contents of the deed in a very general way. It is not inconsistent with his finding that the deed may have described the interest of each of the grantors as a one-fifth undivided interest, or that the interest conveyed was the expectancy as heirs of their mother. In either event, the grantee would have taken title upon the death of the mother, intestate.

The motion is overruled.

Overruled.

Filed November 28, 1904.