Bowles v. Bryan

• Decision Date: 17 October 1925
• Docket Number: (No. 9384.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 277 S.W. 760
• Parties: BOWLES et al. v. BRYAN et al.
• Court: Texas Court of Appeals

277 S.W. 760

BOWLES et al. v. BRYAN et al.

(No. 9384.)^*

Court of Civil Appeals of Texas. Dallas.

October 17, 1925.

Rehearing Denied November 21, 1925.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Suit by Deck Martin against Frank R. Bowles, executor of the estate of J. L. Ross, original defendant, and the Dallas Trust & Savings Bank, guardian of J. L. Ross' minor children and others, wherein E. P. Bryan and another intervened. Judgment rendered in favor of intervener Bryan, and defendants appeal from the overruling of a motion for new trial. Affirmed.

See also (Tex. Civ. App.) 128 S. W. 718; 104 Tex. 558, 140 S. W. 432, 141 S. W. 518; (Tex. Civ. App.) 214 S. W. 524; (Tex. Com. App.) 247 S. W. 276.

Harry P. Lawther, of Dallas, for appellants.

E. P. Bryan, of Dallas, for appellees.

LOONEY, J.

This suit was instituted in 1905 by Deck Martin and Charley Rogers for the recovery of certain real property located on McKinney avenue in the city of Dallas. Charley Rogers dropped out of the litigation on the first trial. As originally instituted, the suit was against J. L. Ross, and, after his death and the death of his wife, Frank R. Bowles, executor of their estates and guardian of the estates of their two minor children, to wit, Edward and Catherine Ross, was made a party defendant, as was also S. B. Scott, who claimed an interest in the land.

Before the last trial, Bowles resigned as guardian of the minors, and the Dallas Trust & Savings Bank was appointed and qualified as their guardian in his stead, and is, in that capacity, a party defendant to the suit.

Pending the first appeal, Deck Martin compromised with J. L. Ross and conveyed to him the premises in controversy. After the case, on reversal, was returned to the district court, E. P. Bryan, appellee, intervened claiming a two-thirds interest in Deck Martin's share in the property under a power of attorney executed by Martin in his favor, which was of record prior to the compromise with Ross. Reports of the case on the two former appeals will be found in 128 S. W. 718; 104 Tex. 558, 140 S. W. 432, 141 S. W. 518; (Tex. Civ. App.) 214 S. W. 524; and (Tex. Com. App.) 247 S. W. 276.

On the last trial appellees moved for judgment on the answers of the jury to the special issues, which was granted by the court, and judgment rendered in his favor, and, on appellants' motion for a new trial being overruled, notice of appeal was given and perfected to this court.

The facts that constituted the basis for the claim of Deck Martin, plaintiff, and that of E. P. Bryan, intervener, who claims under Martin, are these:

In December, 1875, and for many years prior thereto, Terrell Martin and Seely Martin, negroes, were husband and wife and owned and resided upon a lot of land in the city of Dallas. W. H. Gaston owned a parcel of land on McKinney avenue in said city, of which the land in controversy constituted a part, and he and Terrell and Seely agreed to exchange these properties. Accordingly, Terrell and Seely executed and delivered to Gaston a deed to their lot, and Gaston took possession of the same, but, for some reason, did not convey in writing to Terrell and Seely the lot he had agreed to give in exchange; however, he delivered possession to them of the property, upon which they settled, built a house, and resided until their respective deaths. Terrell died in April, 1886, leaving surviving Seely, his wife, and Sim Martin, a son, who also died, leaving Deck Martin, the plaintiff, as his only child and heir at law.

After the death of Terrell, and in the year 1887, Capt. Gaston deeded the lot of land to Seely Martin which he had agreed to give in exchange for the land theretofore conveyed to him by Terrell and Seely, reciting in said deed a cash consideration, but, in fact, the consideration was the lot conveyed to him by the Martins in 1875 at the time the agreement to exchange lands was made.

Seely Martin died in 1891. There was an administration on her estate, and the probate court ordered the sale of the land to pay debts existing against Seely Martin. The land was sold, and the sale approved by the court, under and through which appellants claim title.

The claim of appellee is based on the contention that the land of which the lot in controversy is a part was community property of Terrell and Seely Martin; that on the death of Terrell, his son Sim took half interest by inheritance, which, on his death, vested in Deck Martin, under whom Bryan, intervener, claims a two-thirds interest by virtue of the terms of the power of attorney and the performance by him of the services contemplated by the provisions of said instrument.

1. Appellants make the contention that they should be protected as innocent purchasers of the legal title held and owned by Seely Martin, in that R. G. Tanner, under whom Ross and Scott claim, at the time he acquired title, was without notice of any fact or circumstance that would put a reasonably prudent person upon inquiry as to the existence of the interest of the heir of Terrell Martin, which, if diligently pursued, would have acquainted him with the existence of such interest, and, as he was an innocent purchaser of the legal title held by Seely Martin, the title transmitted by him to Scott and Ross is immune from attack by the heirs of Terrell Martin, and it is also their contention that Ross and Scott were in like manner innocent purchasers of the land from Tanner for value and without notice of Deck Martin's interest, if any existed.

The question of notice was submitted to the jury, and, in response to that issue, the jury found that at the time of these respective purchases R. G. Tanner, J. L. Ross, and S. B. Scott were in possession of such facts as would put a reasonably prudent person upon inquiry as to the existence of the interest of the heir of Terrell Martin, which, if diligently pursued, would have acquainted them with the existence of such interest. Thus the issue of notice was resolved by the jury against appellants, and the question for us is, Did the facts and circumstances in evidence justify the verdict?

On the first appeal of this case the appellant was J. L. Ross, who represented at that time the identical interests now represented by the appellants. He contended then, as is here contended, that the facts were not sufficient to put a reasonably prudent person upon inquiry.

In disposing of this contention Judge Rainey, speaking for this court, said:

"To defeat the Martin title thus established, it was incumbent upon Ross to show that he was a purchaser of the land for a valuable consideration without notice of Deck Martin's title as an heir of the elder Martins, and this became a sharply contested issue at the trial of the case. Was Ross a purchaser of the 100 feet of land on McKinney avenue without notice? The court correctly instructed the jury on this issue, and the jury by their verdict has said that he was not. But this verdict is challenged by Ross as not being supported by the evidence. The deed from Gaston to Seely Martin recited, `It is the same land on which she had lived since 1876.' The affidavit of Ben E. Tanner informed him that Seely Martin had a husband, Terrell Martin; but this affidavit stated Terrell had died without children. The deed from E. Tanner to Ben E. Tanner, a link in Ross' chain of title, recited, `But there are excepted out of this conveyance the portion of said land by me this day deeded to R. G. Tanner and also an undivided one-half interest inherited by the heirs of Seely Martin, other than Tom Banks, in the 100-foot lot off of the end of said lot fronting on McKinney avenue, which I do not own.' The inventory and appraisement of the estate of Seely Martin which was approved by the court, recited, `One lot on McKinney avenue and Cemetery avenue, having been the homestead of Seely Martin, estimated value of same, $250.' It was shown that Terrell and Seely Martin lived in Dallas as early as 1865, which was then a small town, until their deaths. They were well known. They worked around town as servants for many white families, among them the Ross family, and they would frequently have with them their son, Sim Martin, the father of Deck, and their grandchild, Charley Rogers. Ross knew Sim Martin. They played together when children. These facts, we think, were sufficient to warrant the jury to find that Ross was put on inquiry, which, if pursued, would have notified Ross of Deck Martin's interest in the land. It seems he was satisfied with the affidavit of Tanner and made no further investigation. Ross v. Morrow, 85 Tex. 173, 19 S. W. 1090, 16 L. R. A. 542; Hill v. Moore, 85 Tex. 335, 19 S. W. 162; Daniel v. Mason, 90 Tex. 240, 38 S. W. 161, 59 Am. St. Rep. 815; Land Co. v. Hyland, 8 Tex. Civ. App. 601, 28 S. W. 206." 128 S. W. 719.

The facts and circumstances developed on the first trial mentioned by Judge Rainey were substantially, if not exactly, the same as are presented for our consideration on this appeal. The question was one of fact for the jury, and their finding was, in our opinion, sustained by the evidence.

2. The question of notice, however, may be eliminated from the case, in view of the fact that the title claimed by appellee is based on the 10-year statute of limitation. This brings us to consider another contention of appellants to the effect that the question of limitation is not involved in the case at all, for the reason that the property constituted a part of the community estate of Terrell and Seely Martin, that they were tenants in common, had acquired the equitable title to the property under the parol agreement with Capt. Gaston, made at the time the exchange of properties was agreed to, and that, after the death of Terrell, the legal title to the property was vested in Seely by the deed to her from Capt. Gaston, through whom appellants claim, in which deed a cash consideration was recited, and therefore that the possession...