*1 overruled, although our ambiguous, what dispose points other respect’to rulings with in the presented
of some raising sub- point, point; fifth fourth raised stantially same sustained; point is the sixth point,
overruled. court the trial for an- remanded
versed and
other trial. sitting.
CULVER, J., not al. et v. CLAY
COX 6100.
No. Amarillo. Appeals Texas. Civil
Court 11, 1950. Dec.
Rehearing Denied Jan.
Justice, Athens, Moore Justice, & appellant. Holland, Athens, Golden, Sam Hawkins
Dallas, appellees. STOKES, Justice. that, record in this case reveals' year 1915,W, wife, M. Cox and his Cox, acquired, Martha as their com- Jane
munity property, acres 236½ County upon lived 1915, and made their February 1, home. On W. M. Cox leaving surviving died intestate n him his wife and ten including children appellant, D. L. Cox and M. A. who known At Cox. be- intervals tween purchased the interests of all of brothers land, sisters which they had in- Cox, herited from their pay- father W. M. each, ing most of them some of them $200 each, one $150 for their $300 respective undivided interests. He procured L.D. which, on 1928 in for the sum of June $200,appellant conveyed to him warranty appellant’s deed all of undivided interest land, reciting: hereby the deed “I am conveying my right, title and interest acres.” said 236½ April 7, 1943, intestate Cox died surviving wife, Cox, left him his Lillie appellee afterwards who married the Alex 'Clay, Luther and the Mildred Brannon, Marguerite Asmussen and W. M. Cox, Appellant, D. L. Cox. filed this suit 21st of December on the surviving wife children Cox, that, alleging on January .con- undivid- and before December veyed ¡bywarranty deed himto acres suit was filed. one-half interest 236½ requested fourteen issues not answered was then alleged that he land. He never dis- age Whether (1) and that find: *3 executing the know to him her his mother.had her action in to him closed filed in the of when forthwith oneffialf interest tract land deed, but the deed that was ancestor, appellee’s he executed the Hender- deed to clerk of in the office of the Cox, 26, 1928; Cager (2) deed find County duly in the recorded son and June upon appellant the date learned He further records thereof. him; Cox, mother, in mother had her died the hi's executed his Martha Jane (3) appellant whether or year 1936, learn of used due dili- and that he did not deed; gence (4) not have learn -of his conveyance and could mother’s which, by dili- find' the earliest by of due date the exercise learned of years diligence, appellant filed of exercise' due could gence, until about two he have of deed; (5) learned his mother’s not know alleged that he did this suit. appellant whether would not executed execut- conveyance he when of his mother’s -Cager appellant deed to if had his interest conveying known -of the deed executed when it exe- Cager was land to land; Cox, to him her conveying interest in the cuted, grantee, both and his or owned, (6) whether of and Cox knew the appellant thought and believed execution of the deed Cox, only from his 'Cager conveying was 1/20 Cox, appellant at the time inherited in the interest land undivided ; conveyance Cox, received the father M. and appellant from his W. it, a mutual (7) under he did know of executed then whether or deed was not he failed to being of land disclose to the amount knowl- edge of veyed prayed for reformation the execution of deed by him. appellant; that it would mother to (8) part of the deed so correction find what and controversy of the land convey and exclude intend- convey him. which ed to interest owned his deed of therefrom the 26, 1928; (9) mother. whether was Cox did purchase not intend to of the interest general and Appellees answered controversy; land and ratification-, denials, estoppel and pleaded or (10) appellant, by whether exer- years demand, and laches and stale diligence, cise of due could have discovered ap- as defenses to of Limitation Statutes that his mother deed to him pleaded of action. also pellant’s cause conveying her one-half interest in the land sought affirmative relief and a cross-action controversy, period for a of more than years Statutes Limita- under the 3 years to December when Vernon’s R.G tion, Articles this suit was filed. S. Upon motion jury upon ato submitted was The case rendered favor an- which the special issues twelve their cross-action for the title posses- two two. answer those swered sion -of and, appellant’s the land involved peaceable, found motion for overruled, a new trial being adverse continuous perfected duly appeal an to the Court of controversy, under or color title Appeals 'Civil of the Fifth District at Dal- more than three after title,' for las, has transferred to this appellant executed his June deed court Supreme -order of the Court. conveying in the land to 'Appellant presents ancestor, Cager and before appellees’ case for review filed, upon assignments two suit when this error in which December continuous, peaceable contends, first, they had held since his cause of action cultivating for the reformation deed and the period ten it for a evidence raised the issue of enjoying mistake, mutual
-gol
jury,
'trolled
articles of
submitting
those
court erred
of adverse the
statute.
objection,
issues
over
years Statutes
the 3 and
specific
provid
We
no
statute
5510,Ver-
Limitation, Articles 5507 and
ing
period
of limitation
mutual
Secondly, the
Statutes:
non’s Revised Civil
however,
mistake.
provides,
Article 5529
mistrial,
refusing to declare
erred in
court
every
other
than for the recov
any of the
not answer
since
ery
estate,
of real
for which no limitation is
to it.
material
submitted
prescribed,
brought with
otherwise
shall be
in"four
controlling
in the case
next
to bring
after the
entering
court erred
same shall have
whether or not the
accrued and it has
*4
jury
many
by
verdict of
when been held in
judgment upon the
the
cases
our courts that
the
issues submit- the
failed to answer
of limitation of
actions based
upon
mis-
concerning
allegations
by
to
the
mutual
mistake is controlled
ted
pleading.
ample
by appellant
testimony,
pro
in
statute.
take made
There was
force,
support
interest
alleged that
undivided
bative
the.one-half
to
the contention of
been
by him in the land that had
jury
finding
owned
and warrant
fhe
conveyed
by
was not in-
a
mother
that mutual
mistake was made
him and
'Cager
him or
'Cox
purchased appel
tended
either
to
the
Cox when
latter
deed;
them
included
the
neither of
lant’s interest in the land. Instead of con
conveyed veying Cager
knew their
had theretofore
to
mother
Cox
the
1/20
one-half interest which
alleged
her undivided
was intended
them,
land;
the
and
the
the both of
inclusion
deed of the one-half
interest con-
thereof.
paid appellant
undivided
11/20
veyéd
a mutual
to him his mother was
$200
consideration
convey
for the
ance,
allegations
If
were material
paid
mistake.
these
the exact sum he
others for their
supported
.pro-
and were
interest in the same
evidence
If a
land.
mutual
force,
concerning
made,
them
bative
the issues
mistake was
then the
thus
land,
namely,
and a the
properly
were
the
the one-half
submitted
undivided in
a
the court without
terest
judgment
rendered
theretofore
equity,
finding by
capable
was an
of being
ascertained
only by
warranted.
enforced
and
direct
proceeding to correct and reform the deed
theory
judgment
was
upon proper
and
pleading
evidence. He
was,
rendered
as contended
not
was
to institute
entitled
and
maintain
allegations
con-
suit to recover the
could not do so
,
concerning
tentions
mistake
until the deed was corrected and reformed.
undisputed
weré immaterial because the
evi-
McCampbell Durst,
Tex.Civ.App. 522,
appellees
dence was to the effect that the
315;
O’Neil,
40 S.W.
Gilmore v.
Tex.Civ.
under whom
those
claimed had
App.,
g03
appellant’s
cured title under
deed to him
if,
correct
in his
26, 1928,appellees,
as the children
at the
any
timé
at
time
rights
heirs of
up
succeeded to
years prior
to December
and title
death and
suit,
or,
instituted
knew
they
occupied and
whether
held the
diligence,
exercise of reasonable
peaceable
possession
and adverse
known,
could have
mother had
that his
material.
three or ten
theretofore
himto
her one-half
They
legal
equitable
held the
title and undivided interest-in the land.
peaceable
and adverse
carefully
We have
of the
considered all
they already
nothing
would add
to what
had.
presented by
contentions
briefs
Appellees
provisions
invoke
Article our opinion,
rendering
the court erred in
5513,R.C.S.,
that,
provides
whenever
judgment
in favor of
an action for
of real
estate
absence
findings
under the
by any barred
of the statutes
submitted'but
answered
limitations,
person having
peace-
such
it.
will
be
therefore
able and adverse
shall be
held
versed and the cause remanded.
title, precluding
have full
all claims.
that,
undisputed
insist
since the
evidence
Rehearing.
On
Motion
they
was to the effect that
and their ances-
PER -CURIAM.
peaceable
tor 'had
and adverse
they
years,
the land
than ten
for more
Appellees
filed a motion for rehear-
title, precluding
full
to have
ing
should
in which
contend that
erred in
we
all claims of
and all
whomso- holding
appellant’s
cause of action was
*6
ever,
would,
course,
which
of
include the
four-year
barred
the
limi-
statute of
appellant.
contention,
authority
As
for this
tations,
5529, R.C.S.,
Art.
because the deed
to the
of Burton’s
cite us
Heirs
Cox, appellant’s
executed Mrs. M. J.
320,
Carroll,
72
v.
96 Tex.
S.W. 581.
on January
conveying her
to¿
undivided one-half interest in the land
By
5513,
very
the
of Article
terms
immediately
filed
the officelj
only
applies
it
to those who have an action
the
of
clerk of
Countyll
Henderson
which
for the
of land
barred
is
They!
recorded in the deed records.
of limitation. There is no rule
statutes
contend that the
of
record
the deed was
better established
than
of
this state
law
open
inspection,
to
disclosed
only
of
begin
limitation
to run
that statutes
of
extent
the estate
of
date of the accrual
the cause
charged
mother and
his
him with construc-
Arthur
Mill
v.
of action. Port
Rice
Co.
tive
-of its
notice
contents.
further
Mills,
514,
Beaumont Rice
105 Tex.
143 S.
that
contend
the record of
deed
was suf-
283,
S.W.
150
152
W.
S.W.
S.
require appellant
ficient
to
inquiry
make
629;W.
Federal Crude Oil Co. v. Yountlee
concerning
contents and that his
its
failure
Co., Tex.Civ.App.,
Oil
negligence
do
part
so constituted
on
his
there cited.
If
authorities
right to
correction and
not know
1947that his mother had ex
reformation was barred four
10-year
ecuted her deed to
neither the
1928, when he executed
his deed
June
conveying
any other
statute nor
statute
limitation
all
interest in the land
against
began
run
him
until that' date.
Cager Cox.
did not
a
cause of
therefore
until about two
filed
we
original opin
As
stated in the
ap
suit and Article 5513 therefore had no
ion, appellant contended and testified -hedid
plication to his case.
knowledge
not have actual
of the deed exe
As we view the record and the
decisions
cuted
1919until sometime
courts,
only question
of the
limitation
agree
and we
unable to
are
pro-
involved
the case was
which is
with
in their contention that the
vided Article 5529under which
record of the
constituted constructive
maintaining
was barred from
suit to
him
notice to
of its contents
fact
duty of
charged
Article
could not be
with
executed. While
had 'been
that it
searching
Henderson
require
the deed records of
purports to
6646, R.C.S.,
purchaser
County.
appears
conscious
persons
what
be held
know
not come
instrument,
is
therefore did
of the land and
duly recorded
face of a
persons
required
within the class
who
our courts
decisions
settled
numerous
the record
or to whom
only to
search the records
its contents
notice of
carries
their
give
constructive notice
such
deeds
to search
who are bound
tho.se
cannot be
existence
contents. One
grantor
subsequent purchasers under
as
facts from
to have constructive notice of
Benford
v.
an
Leonard
instrument.
such
arises,
presumption of
such
382; which
notice
Co.,
Lumber
deed,
is
recording
who
proper
of a
as the
Wade, Tex.Civ.App., 63
Herd
S.W.2d
wholly
knowl
A
ignorant
those facts.
of law
principle
253. Illustrative
necessary
influence of
edge of
conveys
them is
grantor
condition under
Wil
matters.
conduct
reference to such
do
property
he should
same
twice.
Co.,
Ins.
liams
Standard Life
second
so,
of the deed to
the record
Jefferson
103,
S.C.