Astin v. Martin

• Decision Date: 27 October 1926
• Docket Number: (No. 7014.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 289 S.W. 442
• Parties: ASTIN v. MARTIN et al.
• Court: Texas Court of Appeals

289 S.W. 442

ASTIN v. MARTIN et al.

(No. 7014.)^*

Court of Civil Appeals of Texas. Austin.

October 27, 1926.

Rehearing Denied December 22, 1926.

Appellant's Second Motion for Rehearing Overruled with Modification January 12, 1927.

Appeal from District Court, Lee County; J. B. Price, Judge.

Suit by J. D. Astin against A. Martin and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Thos. W. Thompson, of Giddings, for appellant.

W. A. Morrison, of Cameron, and John H. Tate, of Giddings, for appellees.

McCLENDON, C. J.

Suit by J. D. Astin, appellant, against A. Martin and others, appellees, to recover 138 acres of land in Lee county. Trial to jury. Judgment for appellees on directed verdict.

M. N. Martin, the mother of appellee A. Martin, is common source of title. Appellant claims under an execution sale foreclosing an abstract of judgment lien under a judgment in favor of Lee County State Bank of Lexington, Tex., against M. N. Martin. The judgment was recovered April 20, 1923. An abstract of judgment was recorded and indexed in Lee county on April 26, 1923. Execution issued September 4, 1923, levied on the same date, and the land was sold October 2, 1923, to one Shaffer, who conveyed it to appellant. The record shows that Shaffer in fact purchased for appellant.

Appellee claims under a deed from M. N. Martin, executed October 17, 1921, but not recorded until September 13, 1923.

Two important questions are presented by the appeal: First, whether the possession of A. Martin on the date the judgment lien attached was notice to the bank of his claim of title under the unrecorded deed from his mother; and, second, whether acts and representations of A. Martin to appellant prior to the latter's purchase at execution sale were sufficient to raise the issue of estoppel against A. Martin to assert his title.

The evidence with reference to A. Martin's possession of the property is without material controversy. The land in question was part of original holdings of A. Martin's father, W. H. Martin, aggregating 480 acres, the community property of W. H. and M. N. Martin. W. H. Martin died intestate prior to 1913, and the community property passed, one half to M. N. Martin, and the other half to A. Martin and three other children of W. H. and M. N. Martin. There was a partition among the heirs, by which 240 acres in the northern portion of these holdings was set aside to M. N. Martin, and four 60-acre tracts in the southern portion to the four children in severalty. M. N. Martin's 240 acres consisted of two adjoining tracts out of two separate surveys. The northern tract, being that in suit, was in the Moran survey, and known as the Bounds tract, containing 138 acres. The southern tract, containing 102 acres, was in the Peavyhouse survey. Originally there had been a line fence between the two tracts, but this was taken down many years ago and the whole was under one inclosure. The Bounds tract appears to have been better land and was cultivated in the eastern portion. There was also some cultivation in the southern tract. The old home place of W. H. and M. N. Martin was on the Peavyhouse tract, some 200 or 300 yards south of the Bounds line. A. Martin lived with his parents up to the time of his father's death, and afterwards he lived with his mother and cultivated or assisted in cultivating or in renting the land. He married in August, 1913, or 1914, and moved into the home place with his mother. From that time up to the year 1921 he lived on the place and cultivated the land as a tenant, except that he moved away to Thorndale for one year and for two years he lived in the Rio Grande Valley. During part of this time he lived in the house with his mother and part of the time in a small house in the eastern portion of the Peavyhouse tract. On returning from the Rio Grande Valley he moved into a little house near the home place, where he resided until the spring of 1921, when he moved this little house onto his own 60-acre tract, where he and his family lived until December, 1921, or January, 1922. During the year 1921 he was a tenant of his mother for the 138 acres, cultivating a portion of the land. When he moved back onto the Peavyhouse tract in the winter of 1921-22, he first moved into the house with his mother, who remained there a short while, and then moved out and went to live with another son. From that time on she did not live on any of the property, but made occasional visits to A. Martin, who remained on the land from the winter of 1921-22, continuously residing on the Peavyhouse tract with his family, using and cultivating both tracts. The deed from Mrs. Martin to A. Martin conveyed her entire 240 acres. The evidence is clear that up to and at the time Mrs. Martin deeded A. Martin the land, the latter was tenant of the former, either from year to year or at will, and he was not then living on any of the property, but moved onto the Peavyhouse as above stated shortly thereafter. The record does not show that either the bank, Shaffer, or appellant had any knowledge or intimation of the existence of Mrs. Martin's deed, nor any notice thereof further than that which would be imputed from A. Martin's possession, or the recording of that deed on September 13, 1923, which was after the execution was levied and the property advertised for sale.

Appellee contends that the whole 240 acres should be regarded as a unit, and that, since the character of occupancy of A. Martin changed from one jointly with his mother to one of himself alone after the deed to him was executed and before the judgment lien attached, his possession should be held to carry notice of his deed. We are inclined to accept this view. As long as Mrs. Martin and A. Martin had joint possession of the property, the possession of the latter would not give notice of an unrecorded title inconsistent with the recorded title of the former. Paris Grocery Co. v. Burks, 101 Tex. 106, 105 S. W. 174; 39 Cyc. 1760. When Mrs. Martin moved off the land, A. Martin's possession became exclusive, and from that date a new character of possession existed, which would carry notice that A. Martin was holding, not in subordination to the title of a joint possessor, but in some right of his own. A purchaser, we think, would be put upon inquiry of what that right was, and could not longer rely upon the assumption that it was in subordination to that of the record owner, who had surrendered to A. Martin the exclusive possession of the property.

Appellant contends, however, that the 138-acre tract, being out of a different survey from the home tract, must be regarded as a separate unit. Under this view the case presents the question whether the possession of one who originally enters under verbal lease as a tenant at will or from year to year, which possession is continued after the land has been conveyed to the tenant and the tenancy has expired by reason of the termination of the term of the lease, is such notice as will as a matter of law put a prospective purchaser or judgment creditor on notice of such after-acquired unrecorded conveyance. We have not found that this particular question has been determined in this state, but have reached the conclusion that on principle, deduced from the adjudicated cases, it should be held that such possession in law constitutes such notice.

The general rule, which needs only to be stated, is that possession carries with it notice of the rights in the property claimed by the possessor, and requires those dealing with the property to make such inquiry to ascertain those rights as an ordinarily prudent person would make under the same or similar circumstances. The exceptions to this rule are where the party in possession has executed some conveyance, or has caused some instrument to be placed of record, which if accepted as evidence of his rights would be inconsistent with the claim he otherwise asserts. See Eylar v. Eylar, 60 Tex. 315; Loan Co. v. Sugg (Tex. Civ. App.) 237 S. W. 955, and cases there cited.

The rule contended for by appellant is that where one originally enters as tenant of the record owner his continued possession will be referred to his original entry, and in order to put judgment creditors on notice that the tenancy has terminated and the tenant has acquired a title inconsistent with the tenancy, notice of such fact must be brought home to the purchaser or creditor independently of the mere continued possession of the tenant. The rule contended for could be based only upon the proposition that one has the right to presume the continuance of a status until knowledge or notice of change of such status is brought home to him in some way known to the law, and that this presumption would continue indefinitely. There are situations in which this presumption is applied, but we do not think it has proper application to a case where a stranger is dealing with title to land, the record title to which is in one person and the possession in another, there being no special circumstances requiring that the rule be invoked.

The general rule is that the tenant's possession carries with it full notice of all of the terms of his tenancy or other rights of possession. Thus it has been held that where a tenant is in possession under an unrecorded written lease for a term of years with option to purchase at expiration of term, his possession gives notice both of the tenancy and the option. Wilson v. Clemmons (Tex. Civ. App.) 170 S. W. 855. Where a tenant in possession under verbal lease for a year made verbal lease for the following year, his possession during the first year's tenancy was notice of his lease contract for the subsequent year. Jackson v. Walls (Tex. Civ. App.) 187 S. W. 676 (writ of error refused). Where a tenant in possession under written lease which by mutual mistake gave wrong date of beginning and termination of the term, it was held that possession gave notice of the real...