*1 сourt trial remanded reversed, the cause is are both for a new trial.
Opinion March 1951. delivered
Rehearing April overruled al. Ortiz et et al Isidoro William V. Woodward February 7, 1951. A-2814. Decided No. Rehearing 7, 1951. March overruled (237 286.) Series, W., *2 Polk, L. Pharr, J. Rawlings Henrichson & and E. Hen- G. richson, Edinburg, all petitioners. Appeals holding Court of Civil erred in a matter of
77 support trial court’s insufficient law that the evidence peti- notice of had finding the tax suit Guevara, 280 S. W. v. in the land. Guevara tiоner’s interest 692; First National Mack v. Pratt, 736; 10 2d Texter S. W. v. 2d 628. Dalhart, Texas S. W. Bank Littleton, Jackson Kelley, Looney, McLean & Haigh, A. G. Edinburg, G. and Frank Rochelle, all Littleton and Victor Dyer, respondents. Houston, for correctly evidence that the held of Civil The Court finding the at- court’s the trial was insufficient petitioner’s interest. torney filing tax suit had Willard, 688; Montgomery, Parks v. Griggs S. W. Texas Dist. 138 Birdville Ind. Sch. Dean v. 2d 111. 159 S. W. *3 opinion of Court. delivered the Calvert,
Mr. Justice involving trespass try a tract of title is a in to This suit Petitioners, L. Hidalgo County. are heirs of N. who in land Respond- deceased, Woodward, plaintiffs in trial court. are Isidoro Ortiz court ents and defendants in trial here land, George whom Anderson to who claims title gas premises lease on the an oil and mineral Ortiz executed Dyer, trustees, whom and and Frank G. Wallace Sanders assigned. parties referred to will be mineral lease was The opinion plаintiffs and defendants. this agreed M. the common source
It was that Miss C. Flinn was proof plaintiffs in evidence a of title. of offered As their showing regular chain of title from Miss of a number deeds Company, corporation, a M. Borderland C. Flinn to Orchards regular face, possession judgment, and a on for title and its Company against certain and their favor Borderland Orchards unnecessary judgment ren- was other defеndants to name. This Hidalgo County on the dered the 92nd District Court day December, 1938, in the office of the Dis- 19th was filed of the on trict Clerk and entered in the Minutes Court Civil 22, 1938, in the office not filed and recorded December but was County January 12, 1949. Clerk until plaintiffs’ To defendants defeat title thus established judgment offered in District in a evidence a 93rd Court delinquent suing itself 1944, tax suit in which The of Texas for State Hidalgo September 25, County judgment and on rеcovered against Company, Knaps Irwin Borderland one Orchards foreclosing delinquent
certain other units its lien for They on the order of such taxes. also offered evidence sale Hidalgo County judgment, dated deed to December sheriffs 5, 1944, defendant dated deed from Ortiz 19, 1945, defendant Ander- June the mineral lease from Ortiz to assignment such 1948, lease dated son November Dyer from the same Anderson to defendants Sanders parties to and it date. Plaintiffs were not made tax suit proceeding stipulated-that they had actual notice of that no entered therein until October regularity challenged. proceedings in tax suit is not otherwise attorney by plaintiffs
Evidence that the was offered show filing charged delinquent in law tax suit either had or was 1938, awarding December, them with notice of the that their title to the land. Based on evidence contend this not tax suit. evi- title was affected This dence will noticed in some detail later. and in re
The trial court rendered findings sponse request and con filed of facts therefor in which it found that clusions law delinquent tax had actual and constructive suit both plaintiffs’ interest in the at the time the plaintiffs’ interest was was entered in the suit and that tax judgment. The Court of Civil therefore not affеcted Appeals judgment of trial and rendered reversed the court *4 ground nothing on that the that take the support the a matter of to evidence was “insufficient as law” holding judgment. of Court of Civil 231 2d 503. This the S.W. assigned by petitioners. question pre Appeals error as jurisdiction to review. sented is one of law this Court has which App.). al, (Com. 10 2d Jackson v. 982 Watson S.W. Jr., employed Rankin, The record that reflects Hollis H. wаs attorney 1, 1942, delinquent tax June on employment he and that continued in that until October capacity attorney prosecuted In he filed his tax also that the suit heretofore mentioned. The record reflects Hidalgo Tinkler, County County-Starr F. owner the Ab- W. of Hidalgo County Company, employed stract to furnish - necessary Rankin information to of with title the Mr. Ferguson, employed tax suits. Tinkler in turn Mr. G. Hubert Edinburg running attorney, an the аctual work the do securing informa- index cards in the abstract office and of
79 practice of Mr. Mr. Rankin. It was tion to be furnished sheet”, a Ferguson “run sheet Rankin with to furnish Mr. property containing paper of the of involved, names of owners thereon, “run furnished sheet” etc. The the lien holders in the file question was found in connection the suit with attorney name of the delinquent it showed the tax Company and owner of the Borderland Orchards be judg- contained no reference to Woodward information with Appeals that ment. It was the view of Court Civil judgment on concerning absence of information the Woodward negatived conclusively actual notice this sheet existence of county. part attorney tax and the any with reference There no information is judgment evidence that other Ferguson attorney by tax furnished the anyone else.
If, holding that the evidence was conclusive that attorney judgment, tax had no notice of the Woodward express attorney Court Civil meant had no thereof, agree. may we would be It constrained agreed attorney also that the notice did not have constructive generally judg —as that term is used and understood —of ment, for the had not been recorded thе office County charge Clerk and the law did not him of record in the Civil Minutes of the Dis- V.A.S.; trict Norton, Court. Arts. 6627 and Ball 238 (Com. ; App.) Smith, S.W. 889 413, Permian Oil v.Co. 129 Texas 490, 504, 73 S.W. 2d 107 2d 111 A. L. R. S.W. 1152. It may be, however, County well the tax and the charged though with actual notice even express knowledge had no thereof. Actual notice “embraces things sought charged express those information, of which the one to be has things reasonably and likewise those dili- gеnt inquiry and exercise of the means of information at hand al, would have disclosed.” Hexter et al v. Pratt et S.W. (Com. ; App.) Flack et al v. First National Bank of Dal- hart, 2d 628. S.W.
We now examine the record to determine whether there was probative evidence finding value to the fact *5 judge. was, of the trial If there the Court of Civil authority without to reverse the of the trial court nothing against render a plaintiffs take on the ground that the evidence “was insufficient as a matter of law” finding. al, fact Liedeker et al v. Grossman et 308, 146 Texas S. W. 3-B Tex. Jur. determining question must view the evidence in the this we
In rejecting all plaintiffs, evidence favor- light most favorable to Canode, Cartwright et al v. defendants. able to S.W. up were from the rec- Tinkler testified that abstracts made office; kept in abstract index cards ords as reflectеd affecting land; the title he made index cards on all suits filed on the index card to mentioned later that certain notations daughter. handwriting were in the of his Ferguson employed by pro- he testified that Tinkler “to ownerships parties cure title information in reference to interest” to involved and that “the work consisted of lands show- ing parties interest, the record owner as deeds trust, liens, gas judgments, mechаnic’s mineral oil and inter- ests, might and other interests that or would affect the independent to the lands”. witness had no recollection of identify index card now to be described did certain but being information contained on the back of handwriting. card in his having An index card identified as come from the files of Hidalgo County-Starr County Company Abstract was intro- duced evidence. The information thereon identified bеing handwriting daughter witness Tinkler as in the of his Original September 11, indicated that an Petition was filed on styled in Cause No. A-2657 Wm. V. al et Woodward (one Wm. Belden suit) defendants for foreclosure on the east 10 acres and the west 10 acres the east one half (a Lot Block 274 of the descrip- Tex-Mex Subdivision short involved). tion of the land here On the front this card also typewritten “Judgment was a possession notation as follоws: for title and 19, 1938, Page favor of Dec. 6Vol. 52”. On the reverse by Ferguson side of card and identified being handwriting following in his was the notation: “Title Woodward, & Poss to May V.Wm. and Mrs. V. B. Woodward widow; Armstrong Mrs. Eunice vir, Woodward Donald A. Armstrong against Lankford, G. E. Gardarl, John Borderland Co., Simpson Orchards L. J. Jud. 19 Dec. 1938”. Rankin, Ferguson engaged Tinkler and working were all for through delinquent in its effort to collect taxes agents suits. All County. Tinkler and Ferguson charged were' duty furnishing with the County, through Rankin, outstanding full information of all *6 they were purpose for which That was the in the land. interests actual notice them had either of employed paid. or If and principal their judgment, of the Woodward charged County’s and Rankin concerning the existence though information thereof even County communicated judgment not fact of was al, supra; Paul Fire & or v. Pratt St. Rankin. Hexter et al et Stogner al, App. Civ. Marine Ins. Co. v. denied; 2 Tex. Jur. writ W. question this: it unreason-
The narrows itself down to Was facts judge to and conclude from able for the trial infer Ferguson Tinkler, prior and circumstances in evidence that or therein, filing entry judgment and of the tax suit of knew of the existence of Woodward knew inquiry, the existence of facts calculated to excite further inquiry, reasonably pursued, if would have led to judgmеnt? If an inference was not unreasonable then it must held that there was some evidence in finding fact. by Ferguson clearly
The notation made on the index card shows judgment. express knowledge that he had of the suit and Woodward typewritten The on notation the card shows that a possession for title the land had been entered December, favor of the Woodwards 1938. The notation by daughter made Tinkler’s on card shows that suit involv ing the title to the land had filed been the Woodwards September 11, 1935. But it is said defendants that is there showing no evidence when notations these were made and that discharge showing have failed to their burden their existence entered. before the tax suit was filed and the therein said, judge right As has been the trial had the to con sider indulge all facts and circumstances evidence reаching reasonable inferences therefrom in his ultimate find ing. Ferguson investigating evidence the index get cards to concerning judgments information the existence of (as well information) as other as a basis for the tax There any suits. is no evidence that he ever dealt with these purpose cards cannot, other or at time. other It therefore, he said that it was unreasonable for trial court tо Ferguson infer and conclude that discovered the existence and made the notation while in the course of that investigation. Ferguson The notation made is but detailed explanation typewritten showing notation the existence judgment. The Woodward was entered in De- 27, 1943, March not filed until tax suit was 1938. The cember September 25, until therein judgment was not entered entry years span four of over between the There *7 filing span tax suit and a judgment and of the the
Woodward judg- entry nearly years of the between the six Woodward un- entry in tax It was not the suit. and ment the company court to infer that an abstract for trial reasonable engaged keeping District a record of all suits in the Court in typewritten affecting notation had made the title to land the filing judgment prior tax The testi- suit. of this company made card mony Tinkler is that his of the witness affecting testimony title land. This all suits the record of filed by by Tinkler’s case the notation made is corroborated daughter this plaintiffs’ the date of the which showed petition. for the court to infer It was not unreasonable trial daughter by De- that the notation made the was made before long and tax cember filed in therefore before the suit was March, 1943, daugh- why there no reason the otherwise ter did not also note the entered. The notation show- ing Ferguson put the suit had filed been was sufficient inquiry and Tinkler determine what had been result slightest inquiry of the suit. Even would have led to dis- covery judgment. County
While and its tax could have relied on County thereby records the office of the and have Clerk having judgment, been absolved of notice of the Woodward employ Ferguson chosen instead to Tinkler and to make the company seаrch from the abstract records for title information County consequence being charged must suffer the notice of such information as came to their through diligent investigation. should have come to them We conclude that there was some evidence to the trial court’s finding of fact. bought Hidalgo
The land involved in at the tax sale County as taxing trustee for itself and other units. The sheriffs conveyed deed County right, “all the title and interest Hidalgo County said Improvement Water Control and District One, Municipal Corporation; Number Knaps; Irwin Border Company, land corporation” Orchards a defunct had in and to the lands at the date of the or after the accrual of the taxes. The deed Having contained no warranty. covenant of purchased the land with notice of Woodward County acquire did рlaintiffs’ not property. interest Realty Corporation Tinkler, American v. S. W. Traylor, Mortgage Corporation refused; App. Civ. writ State contends, The defendant Ortiz 2d 440. 36 S. W. judgment and however, that he had no notice Woodward The deed purchaser. protected innocent that he should as an Judge, County County Commis to Ortiz executed County recited Assessor-Collector sioners and the and Tax State Hidalgo County and that these of Texas officials “for State Hidalgo County Control as trustees and Water for themselves bargained, Improvement sold and District Number One—have conveyed, bargain, convey presents and and these sell and do right, unto and interest of the said Isidoro all the Ortiz Control above units Water Improvement One, Knaps, Border District Irwin Number Company, land Orchards had at said judgment, together singular the date of said with all and rights, privileges, belonging appurtenances This thereto —”. *8 deed warranty. contained no covenant of does The deed to Ortiz purport not convey land; conveys only to the it title as such grantors the parties and the other named had in the land and nothing is therefore quitclaim than a more deed. 14 Tex. Jur. 763, enjoy protection He cannot the afforded a bona purchaser; fide he takes with of all defects in equities and persons. of third v. Simons Stanolind Oil & Gas Co., 332, 226, 234; 134 Smith, Texas 114 S. W. 2d al Cook et v. 119, 1094, 107 940; Threadgill Texas 174 S. W. 3 ALR v. Biker al, 520, staff et 87 Texas 29 S. 43 Tex. W. Jur. sec. 370. The for Ortiz testified that he examined the deed under purchasing which Ortiz was at the time of purchase get and advised him that he could whatever title by the land was held Company Borderland Orchards Knaps. bought only Irwin He a chance of title. Neither prоtected are the other pur- defendants as innocent chasers. In addition to the fact that took their mineral grantor holding lease from a deed, quitclaim under a in itself would be sufficient to defeat their claim to the status purchasers, innocent Houston Oil Co. of Texas al et v. al, Niles et 255 App., defendants, W. 609 Com. one Sanders, Mr. attorney, an testified that he had actual knowl- edge judgment of the Woodward from an examination of an abstract of title and that he communicated this co-defendants, his Dyer, Anderson and before the mineral lease assigned. was executed and The defendants had before Appeals the Court of Civil one point which, other of error passed had it been on and sustained Court, that would have resulted in the rendition of a take having by reason of point was thаt
nothing judgment. long period for so their and record to file failed parties land to leading to deal thereby innocent of time estopped to assert their title. detriment, are plaintiffs their point. proposition are support not cited in The cases had no notice case that stipulated this is It selling county the land to Ortiz. or that the tax suit purchaser. innocent was Ortiz an Neither particulаr entered. The to be now the come We Appeals re the Court of Civil point versing sustained of error plaintiffs’ and ren favor trial court’s against dering nothing judgment them follows: reads as t ake finding attorney for in its that erred Court “The District agency interest claimed had notice the plaintiffs, having finding rec not in the sufficient briefing have this our rules we treated ord.” liberal .Under though error, Appeals, point it did Court Civil question was lacking to raise the of “no evidence”. However sufficient respect clearly may it be in that sufficient to raise it finding contrary question under the the attack so weight great preponderance to be evidence as wrong. clearly question it this before we must assume With of Civil question had the considered it would Court point of have sustained the error and that it re would have versed the of the trial court remanded cause Chapman Kellogg, App.; for retrial. Liberty S.W. Com. Porter, ux, Film Lines Inc. v. jurisdiction
S.W. 2d 982. We have no to disturb the *9 Appeals question. of the Court of Civil on this Childre ux Casstevens, 297, 461; 1088, 148 224 Tex. S.W. 2d 3 Tex. Jur. points
The defendants call to our attention other of error they urged Appeals which before the Court of Civil but only admit here that the sustain same could result re- versal of the trial court’s and a remand cause accomрlished by holding for retrial. This result has been our unnecessary, therefore, the matter discussed and it becomes points. to discuss such other
The of the Court of Civil it so far as nothing judgment against plaintiffs renders take reversed is and the of reversal is left undisturbed. participating. Justice Wilson not Opinion 7, February delivered
85 REHEARING. ON opinion Court. delivered
Mr. Justice Calvert calls our atten- rehearing Ortiz defendant In motion for his title was claims he under which deеd the fact that tion to Hidalgo County pursuant by officials executed his that 7345b, 9, He contends sec. V.A.S. provisions of Art. governing general by rules determined should not be status should be quitclaim deeds but purchasers under the status provisions of that to the particular reference determined with article. under property sold provides that if Art. 7345b Section 9 of taxing any unit is sold to
foreclosure of a tax lien “be * * * taxing may and con- party unit sell a vey * * * purchaser by property purchased and the it so right, property any shall receive all at such sale acquired held and is then in said interest * * taxing “Any unit by taxing provides: said It also unit * * * making shall execute provisions hereof sale under conveyance, purchaser deed at such sale and deliver to the conveying taxing units all the right, all title' interest of prop- and to interested in the tax foreclosure * * erty so sold substantially keep language deed to Ortiz ing wording it not make This does of the statute. convey operate purports convey plainly the land. The deed taxing in the land. Such such interest as the units had quitclaims. To deeds our courts to be mere are construed wording held cite a few cases in which deeds of similar 299; al., 2d quitclaims, Hill Foster et 181 S.W. to be see v. аffirmed, Houston Oil Co. et 143 Texas 186 S.W. (Com. App.) al., Hunter et al v. al 604 v. Niles et S.W. al., 66. Article 7345b was Eastham et 95 Texas S.W. knowledge legislature of the construc enacted with full given presumed must have such deeds. It be tion our courts legislature light acted in the directing language legal it used in knew the effect Koy type deed to executed units. and form of 880, 886; Schneider, Tex. Jur. 110 Texas S.W. *10 legislature power direct Surely had the them- bind political of the state —should subdivisions units — convey him purchaser no further than selves might purchasers acquire as at a property as interest regarded Indeed, may any it well have other sale. foreclosure The fact that the deed to Ortiz was unwise. most direction any place statute did not him prescribed form in the position purchaser than other favorable more better regarded сannot He law as an deed. quitclaim under purchaser. innocent grounds rehearing urged for all the considered have We urged by motion, also well as those the other in his
by Ortiz separate motion. Both motions are overruled. in their defendants 7, 1951. Opinion March delivered rehearing April overruled motion Second Company, Incorporated, et al Motor Wood Jr., W.C. Nebel, et al. April A-2915. Decided 4, 1951.
No. (238 181.) 2dW., Series,