191 S.W. 392 | Tex. App. | 1916
Lead Opinion
(after stating the facts as above). [1] The theory upon which appellee was awarded the relief he sought was that, as the owner of the unpaid purchase-money notes and transferee of the legal title remaining in Hightower as one of Smith's vendors, he was entitled on Smith's failure to pay the notes to recover the land. That appellee was entitled to recover at least a part of the land is clear, unless his suit therefor was barred by force of a provision in the act of April 3, 1913 (General Laws, p. 250; articles 5693, 5694, 5695, Vernon's Statutes), as follows:
"Those owning the superior title to land retained in any deed of conveyance, or his transferee and those subsequently acquiring such superior title by transfer, shall have twelve months after this act takes effect within which to bring suit for the land if their claim to the land is not otherwise invalid and unless such suit is brought within twelve months after this act takes effect, they shall be forever barred from bringing suit to recover the same." Article 5695.
The act took effect July 1, 1913. Appellee's third amended petition, as shown in the statement above, was not filed until June 11, 1915, nearly two years after the time when the act became effective. It is plain, therefore, if the filing of this petition was the commencement of appellee's suit for the land, it was barred when commenced. We are of opinion, however, appellee's suit for the land was commenced by the filing, July 7, 1913, of his first amended petition, in which, while seeking a recovery on the note due November 1, 1909, and a foreclosure of the lien retained to secure it, he also sought to have the title to the land, or a part thereof sufficient to satisfy the amount unpaid of the other two notes, decreed to be in him, or, if not, then by the filing, January 5, 1914, of his second amended petition, in which he asked that the title to the land be declared to be in him. While we did not think when the cause was before us on the first appeal (
Whether appellee, as the transferee of only one of Smith's two vendors, was entitled as against Smith to recover all the land, or only an undivided half of it, is a more difficult question to answer. In view of the holding that the title remaining in the vendor is held by him for the benefit alone of the holder of purchase-money notes so long as they remain unpaid, we would not hesitate to say that the recovery had by appellee against Watkins on his disclaimer of any claim of right or title to the land operated to pass to appellee the title held by Watkins in trust for him, but for the further holding that the assignee of such notes cannot by suit against the vendor have the title remaining in him devested. Farmers' Loan Trust Co. v. Beckley,
"We are also of the opinion that the legal title remained in the vendors, to wit, Anderson. Mrs. Snider and Williams, and that the acquisition by Silliman, the holder of the purchase-money note, of the legal title of Williams and Mrs. Snider, was sufficient, upon default in the payment of the note, to enable Silliman or his executrix to sue Anderson for the recovery of the land. White v. Cole,
The judgment is affirmed.
Dissenting Opinion
The land involved in this suit was originally owned by Watkins and Hightower, each holding a fee-simple title to an undivided half interest. The finding of the trial court that Hightower had furnished the purchase money when the property was acquired by him and Watkins is of no importance in the consideration of any question presented on this appeal. Their subsequent dealings with reference to the land, the division of the proceeds of its sale, and the absence of any claim that a resulting trust arose in favor of Hightower clearly indicate that some kind of an arrangement had been made between him and Watkins by which they were to share equally in the ownership of the land.
In November, 1909, Watkins and Hightower sold the land to Smith, the appellant, executed a joint conveyance, and took in payment three promissory notes payable to them jointly, in which the vendor's lien was expressly reserved. These notes were afterwards assigned by Watkins and Hightower jointly to other parties, from whom the appellee purchased them. When the appellee brought his suit upon the notes after maturity and sought a foreclosure of his lien, the defense of limitation was interposed as a bar to his right of recovery. He later amended his pleadings and sought a recovery of the land. The third amended original petition, that on which the case was last tried, contained two separate and distinct causes of action, one against Smith alone for the recovery of the land, and the other against Watkins for the removal of a cloud from the title. Haskins v. Wallet,
"Now comes the defendant J. E. Watkins in the above styled and numbered cause, and disclaims any interest to the land sued for by plaintiff, and denies all and singular the allegations setting up any interest, if any, in this defendant in said land."
The proof showed that at the time the suit was filed and on the day of trial the appellant, Smith, was in possession, claiming the land under his original purchase from Watkins and Hightower; that all of the notes given by him for the purchase money had been due for more than four years, and, with the exception of a small sum, no part of the purchase price had been paid. As proof of his title the appellee relied upon the ownership of the unpaid purchase-money notes, a conveyance of the superior legal title to an undivided one-half interest in the land from Hightower, and the disclaimer filed by Watkins after the institution of the suit. Upon this evidence the court entered a judgment in favor of the appellant for all of the land involved in the suit and against Watkins, divesting him of all the superior legal title to the undivided half interest formerly owned by him.
I fully concur in that portion of the opinion of Chief Justice WILLSON which holds that the defense of limitation was not available in this suit as a bar to the right of the appellee to recover any portion of the land. When the petition relied on to constitute the beginning of a suit presents a subject-matter of which the court may take cognizance, and so identifies the particular property in dispute as to give jurisdiction to the court, so that a judgment rendered in that proceeding will be, though merely erroneous, yet not void, the petition is sufficient to interrupt the period of limitation provided by law. But where the petition is so defective that it fails to give the court jurisdiction over the parties or over the res in controversy, the judgment thereon would be subject to attack, and might be annulled in an independent suit instituted for that purpose alone. Such a petition would not be sufficient to stop the running of the statute of limitations, for the reason that it could not form the basis of a valid judgment. When the first amended petition in this case was filed, we must assume that the trial court had jurisdiction over the parties. While that petition did not itself describe the land, it referred to an instrument which did contain an accurate description. This method of pleading, though not in accordance with the rules adopted by our Supreme Court for the government of district and county courts, is not such an irregularity as to affect the jurisdiction of the trial court after judgment had been rendered. A judgment will not be vacated in an independent suit merely because of defects in the pleadings. 23 Cyc. 1004; *396
Moore v. Britton,
However, I am not able to agree to the further holding in this case that the appellee was entitled, under the evidence, to a recovery of all of the land sued for. The appellant, Smith, being in possession, could be ousted only by one showing proof of ownership by title superior to that under which Smith held. As the holder of the unpaid purchase-money notes which had become barred by limitation, the appellee had no interest in the land until he acquired the superior legal title from one of the original vendors. See White v. Cole, supra, cited by Chief Justice Willson, and other authorities there referred to. Inasmuch as the appellee's right to recover the land depended upon the possession of the superior legal title in addition to the ownership of the purchase-money notes, the interest he might recover must be measured by the title he exhibited. Watkins and Hightower did not jointly hold an indivisible title to the tract of land, but each held a separate and entire title to an undivided half interest. We must keep in mind the distinction between an entire title to a fractional interest in land and a fractional title to an entire interest. There may be a joint ownership of land, but there is no tenancy in common as to the title. One tenant in common may assign his title, or lose it by limitation, without disturbing his cotenant. The title itself is that intangible right or thing which the law regards as distinct from the property to which it applies. At the time the appellee filed his first amended original petition he had acquired the legal title from only one of the two original vendors; Watkins having refused to convey the title held by him. The appellee then held the legal title to only an undivided half interest, and could by the exercise of his right of rescission claim no more. Hightower could confer him no greater right that he (Hightower) reserved at the time he sold. However, even if we should regard the legal title of Watkins and Hightower as being indivisible, so that a conveyance sufficient to transfer a part transferred the entirety, there would be as much reason for holding that the deed from Hightower alone conveyed no title as for saying it conveyed it all; for, if they were joint owners of the title, one had as much right to refuse to convey as the other had to convey. Hence I conclude that the most the appellee could claim at the time he filed his third amended original petition was the legal title to an undivided half interest only.
As tending to support the ruling of the majority, the case of Anderson v. Silliman,
While the facts of that case as presented in the trial court were similar to those here involved, the record on appeal was materially different; in fact, the very question now before us — that is, whether the holder of the legal title to an undivided interest can recover all of the land from a vendee in default of payment of purchase money — was expressly left undecided. The situation before us is the same as it would have been in that case had the Blackabys perfected an appeal and been in a position to complain of the judgment against them. It cannot be said in this case of the appellant Smith, as was said in that case of Anderson, that he had no interest in the land. Neither can it be said that the appellant is a trespasser, from whom possession could be recovered by a tenant in common; for the appellant held the equitable title to at least that half of the land which corresponded to the legal title retained by Watkins and which had not been acquired by the appellee. His failure to pay the purchase money did not ipso facto *397 terminate the equitable title acquired by his contract of purchase. Such failure merely gave to the holder of the debt and the legal title the right to rescind and reclaim the land. The rule which permits a tenant in common to recover all of the land from one having no interest has no application to this case; for the very conditions which limit the ownership of the appellee to a fractional interest imply an outstanding legal and equitable title to the remaining interest, and the proof shows that the appellant holds at least an unextinguished equity of redemption in that interest.
In the trial below the appellee introduced in evidence the disclaimer filed by Watkins after the appellant had answered. In rendering judgment for the appellee against the appellant the trial court based his legal conclusions upon the sufficiency of this disclaimer to pass the legal title from Watkins to the appellee. At that time the right to recover the undivided half interest in the land represented by the superior legal title held by Watkins was barred, because no suit for that interest had been instituted within the period prescribed by the statute. See Vernon's Sayles' Statutes, art. 5694. It is true the appellee had before that time filed a suit in which he sought a recovery of all the land, but it is also true that he then owned only a half interest, and could recover only to that extent. A suit which prevents a running of the statute of limitations must be instituted by the owner of the land or the party having a right upon which the statutory bar operates. A stranger to the title has nothing to lose by the efflux of time, and a false assertion of ownership by him cannot aid the true owner, or legally disturb the possession of the adverse claimant. By the terms of the statute as amended by the act of 1913 the legal title becomes extinct four years after the maturity of the purchasemoney debt, unless suit is sooner brought "by the original vendor or his transferee." The appellee could not in any event claim to be a transferee from Watkins till after the disclaimer had been filed, but this occurred more than four years after the purchase-money notes had matured. When Watkins disclaimed any interest in or title to the land, his averments were literally true; for whatever legal title he theretofore held had been lost by the lapse of time, and he then had nothing to release or convey to the appellee. The effect of the bar of that title was to perfect and fortify the equitable title of the appellant against any legal demand originating from the vendor. From this I conclude that, without reference to the legal effect generally resulting from the filing of a disclaimer, conceding that the language of the disclaimer in this instance was sufficient to pass a legal title, the appellee could acquire none from that source. For this reason alone, the judgment of the trial court awarding to appellee all of the land was erroneous.
But there is still another reason for disregarding this disclaimer as a source of title. It was admittedly filed, not only after this last amended petition was filed, but after the appellant, Smith, had answered. Hence, if it conveyed a title to the appellee, it did so after the suit had been commenced. Such a title cannot be made the basis of a recovery except by amending the petition after the title has been acquired. Ballard v. Carmichael,
For the reasons stated, I have concluded that the judgment of the trial court should be modified so as to limit the recovery of the appellee to an undivided one-half interest in the land.
