Bennett v. Romos

• Decision Date: 15 October 1952
• Docket Number: No. A-3492,A-3492
• Parties: BENNETT v. ROMOS et ux.
• Court: Texas Supreme Court

Page 442

252 S.W.2d 442

151 Tex. 511

BENNETT v. ROMOS et ux.

No. A-3492.

Supreme Court of Texas.

Oct. 15, 1952.

Rehearing Denied Nov. 26, 1952.

N. C. Outlaw, Post, Erwin G. Ernst, Lamesa, for petitioner.

Ratliff, Conner & Walker, Spur, for respondents.

GARWOOD, Justice.

The petitioner, Harry Bennett, who was a defendant below, complains here of the judgment of both courts below in favor of the respondent-plaintiffs, Adolfo Romos and wife, in a trespass to try title action involving land in Clairemont, Kent County, and tried without a jury. The trial court filed conclusions of law but no particularized fact findings. The opinion of the Court of Civil Appeals is reported in 246 S.W.2d at page 328.

The common source is Juan Nebarez, Navarez, or Navarey (the difference in names being immaterial under the stipulation of facts) who acquired the land by duly recorded deed from 'Bull' Underwood of March 30, 1934. The hereinafter mentioned conveyance or conveyances of the Nebarez title to the respondents Romos establish their ownership but for a judicial tax foreclosure of 1947 in Cause No. 2588A in the 39th District Court of Kent County, under which petitioner Bennett claims as purchaser from the purchaser at the foreclosure sale.

Nebarez, when he acquired the land in 1934, was married and, oddly enough, under adjudication of insanity, which continued in effect until, on May 30, 1950, he was adjudicated to be sane again. His wife dying intestate in 1935, her community half passed to their seven children (including respondent, Mrs. Natibidad Nebarez Romos) as tenants in common with Nebarez. The record reflects a deed of May 30, 1950 from Nebarez and his cotenant children (other than respondent Mrs. Romos) to both respondents, containing the following significant recital:

'* * * in consideration of the sum of ten and no/100 dollars * * * and in lieu of a deed executed by us in the year 1944 by the terms and provisions of which the hereinafter described real estate was conveyed by us to the grantees herein and which said deed has been lost and does not now appear of record in the Deed Records of Kent County, Texas, and for the purpose of supplying a record of said lost deed, have granted,' etc.

The lost 1944 deed, if any, was of course, executed while Nebarez was under adjudication of insanity and after the children had become his cotenants. There is no reference whatever to it in the record other than the recital just quoted. The so-called substitute or confirmation deed (1950) was made on the date the sanity of Nebarez was restored, but some three years after the 1947 tax foreclosure under which petitioner Bennett claims, and just under two months before the filing of the present suit. At the time of the tax suit, Nebarez was obviously the last grantee of the land indicated by the deed records (by reason of the recorded deed into him of March 30, 1934) although the taxes in question, which were state and county taxes for the years 1931 through 1945, were all assessed against W. R., or 'Bill', Underwood, the grantor in the deed mentioned.

So far as relevant here, the only defendants in the tax suit were 'The Unknown Heirs of Juan Navarey, Deceased, whose residences are unknown. * * * And all unknown owners, and the heirs, administrators and legal representatives of all such unknown owners and of all such above named defendants whose residences are unknown'. Accordingly, neither the 'record owner,' Nebarez, who was then and still is living, nor any of his children nor the respondents, Romos, were sued by name or personally served with process.

The attorney who brought the suit (on behalf of the state, Kent County, and 'all political subdivisions whose taxes are collected by the Assessor and Collector of Taxes for the said Kent County') filed his affidavit for substituted service, stating that 'the defendants herein named as unknown in said cause are unknown to affiant, and after diligent inquiry cannot be ascertained; that the defendants whose residences are hereinafter named as unknown are unknown to affiant, and after diligent inquiry cannot be ascertained;' the document thereafter listing 'The Unknown Heirs of Juan Navarey, and the Unknown owner or owners, all of whose residences are unknown.'

It is stipulated that at the time of filing the suit, the tax attorney 'made inquiry around the town of Clairemont and believed the said Juan Nebarez to then be deceased, such belief being based upon such inquiry' (albeit erroneously).

The citation, which was properly executed by posting in the absence of publication media, and all subsequent steps in the foreclosure and sale made reference to the defendants in the suit in a manner corresponding to the references in the petition. None of them nor any of the Nebarez family nor the respondents, Romos, appeared at any stage, though an attorney ad litem for such defendants as the citation might be said to include was appointed by order, reciting default on their part, and filed a general denial on their behalf.

The required statement of facts filed in the tax proceeding, agreed to by the attorneys and approved by the judge, contained the statement, '2. That the residence and whereabouts of defendants The Unknown Heirs of Juan Navarey, and the unknown owner or owners, are unknown, and after diligent search and inquiry by the attorneys bringing this suit could not be ascertained, whereupon said defendants were duly and legally cited by publication.' The foreclosure judgment recites that the defendants thus described, 'though duly cited, failed to appear and answer in this behalf, but wholly made default.'

Obviously the one general question before us is whether the courts below were right or wrong in holding the tax foreclosure and sale not to have transferred any interest in the land to the purchaser under whom petitioner, Bennett, holds. As disclosed by the 'Points of Error' in his petition, petitioner now contests that holding exclusively upon the theory that the foreclosure proceeding named as defendants the 'unknown owners' (as well as the 'Unknown Heirs of' the supposedly deceased Nebarez), and that at the time of the foreclosure (1947) the respondents, Romos, were in fact the owners of the premises by reason of the lost and unrecorded 1944 deed to them abovementioned, so that the title passed from them as 'unknown owners' to the foreclosure purchaser some three years before the 1950 deed to them was made. Undoubtedly in 1944 and thereafter respondent Mrs. Romos, a child of Mr. and Mrs. Nebarez, owned a 1/14th interest by inheritance from her mother, if not by other means. The petitioner contends, however, that by reason of the lost deed (in which the grantors were Nebarez as surviving husband and the otehr six children as heirs of their mother) respondents in 1947 owned the full interest.

That the loss or destruction of a valid deed does not reverse or invalidate the transfer of title made by the deed is, of course, well settled. See cases collected in 14 Tex.Jur., 'Deeds', Sec. 121, p. 898.

Disregarding for the moment the 1/14th inherited interest of respondent, Mrs. Romos, petitioner's contention assumes the recital in the 1950 deed to establish that the 1944 conveyance was actually made. Since the trial court held against petitioner, it must be taken to have held or found against this view. Assuming the question to be one of fact, and if there were evidence pro and con, we could not disturb the implied finding. But the recital is, as heretofore indicated, the only thing in the record in the way of proof on the point, and the trial court in effect went against this uncontradicted proof. The respondents say in this connection that the recital does not estop them to deny the earlier deed and is essentially no more than hearsay evidence which would not have supported a judgment for petitioner even had the trial court held for him instead of for respondents. Our conclusion is that, aside from the matter of estoppel, the position of the respondents is wrong and that of the petitioner well taken.

Respondents, evidently in proof of their title, introduced the 1950 deed. Obviously they were as much parties to the recital in it as they were to the granting clause. The recital says the purpose of the 1950 deed was to supply a record of the 1944 deed which had been lost but which 'conveyed' the land from the same grantors to the respondents. The latter thus put in evidence their own declaration that the 1944 conveyance was made. In Illg v. Garcia, 92 Tex. 251, 257, 47 S.W. 717, 718, the opinion, after declaring that the plaintiffs, as strangers to a partition deed between one Gutierrez and the defendant, could not invoke it to estop the defendant, adds-'but could only use it as evidence, just as * * * any other declaration made by Gutierrez while in possession, explanatory * * * of his holding.' The general rule that any material statement is evidence of the fact stated against the maker in a suit to which he is a party (McCormick & Ray, Texas Law of Evidence, Sec. 505) should apply no less forcibly to admissions in a solemn instrument such as a deed. In Peurifoy v. Wiebusch, 132 Tex. 36, 117 S.W.2d 773, the recital of payment of the mortgage notes in a release executed by the mortgagee, Wiebusch, was held to make a fact issue of such payment in favor of Peurifoy, a stranger to the instrument, despite the otherwise uncontradicted testimony of Wiebusch that the release was a mere sham to aid the mortgagor in an abortive attempt to sell the land. The holding was reaffirmed in Simonds v. Stanolind Oil & Gas Co., 134 Tex. 332, 114 S.W.2d 226, 136 S.W.2d 207, 209. The latter, written by the same judge, decides that an impressive mass of evidence that one McGeorge was a nonresident of Texas, justified withdrawing the residence issue from the jury, Despite presence in the record of a deed to McGeorge, in which his name was followed by the words 'of Dallas County',...