Clarkson v. Ruiz

• Decision Date: 14 February 1940
• Docket Number: No. 10672.,10672.
• Citation: 140 S.W.2d 206
• Parties: CLARKSON et al. v. RUIZ et al.
• Court: Texas Court of Appeals

140 S.W.2d 206

CLARKSON et al. v. RUIZ et al.

No. 10672.

Court of Civil Appeals of Texas. San Antonio.

February 14, 1940.

Rehearing Denied April 24, 1940.

Appeal from District Court, Duval County; L. Broeter, Judge.

Suit by Mrs. J. F. Clarkson and others against Jesus V. Ruiz and others, to set aside a partition decree, wherein defendants Mrs. Thelma D. Parr and another filed a cross-action. From an unsatisfactory judgment, Mrs. J. F. Clarkson, individually and as independent executrix of the estate of J. F. Clarkson, deceased, and the cross-defendants, Hood Boone and Jacob S. Floyd, appeal.

Affirmed.

Frank T. Morrill and Perkins & Floyd, all of Alice, and Boone, Henderson, Boone & Davis, of Corpus Christi, for appellants.

Lloyd & Lloyd, of Alice, Bobbitt, Williamson & Derby, of San Antonio, and Felix A. Raymer, of Houston, for appellees.

MURRAY, Justice.

This is the second appeal of this case. Our opinion on the first appeal is to be found in 108 S.W.2d 281, 286. It would serve no useful purpose to here reiterate all of the facts stated in that opinion, but it will be sufficient to refer to and adopt that opinion as a part of this opinion, insofar as it is applicable on this appeal.

In our former opinion we affirmed in part and reversed in part the judgment of the trial court, with the following statement: "As to said excepted appellees [Geo. B. Parr, Thelma D. Parr and Humble Oil & Refining Company] the judgment will be reversed and remanded, for the purpose of having the trial court determine whether or not the sale of Clarkson's interest in Survey 553, by virtue of the power of sale in the deed of trust, was a valid sale, and for the further purpose of partitioning, if proper, Survey 553 between the joint owners thereof; it having been decided that the minor, Eliza Robles, is the owner of a two-twelfths undivided interest in said Survey 553, and whether or not Mrs. Clarkson is the owner of a five-twelfths undivided interest in this survey, being dependent upon whether or not the trustee's sale is found to be valid or invalid. The trial court should also determine what sums of money, if any, are due by Humble Oil & Refining [Company] to Eliza Robles and to Mrs. Clarkson, if she be found to own an undivided interest in Survey 553."

In keeping with these instructions the trial court retried the case, submitted the issues to the jury, and rendered judgment in keeping with the jury answers. The decree, among other things, awards the undivided interest in Survey 553, asserted by Mrs. J. F. Clarkson, to Mrs. Thelma D. Parr. From this judgment Mrs. J. F. Clarkson, individually and as independent executrix of the estate of J. F. Clarkson, deceased, and the cross-defendants, Hood Boone and Jacob S. Floyd, have prosecuted this appeal.

Appellants, by their first proposition, contend that the evidence clearly established the fact that they could not obtain a fair and impartial trial in Duval County, and that the trial judge abused his discretion in refusing to change the venue of this cause.

Appellants placed a number of witnesses on the stand who testified, in effect, that appellants could not secure a fair and impartial trial in Duval County. Appellees also placed a number of witnesses upon the stand who testified, in effect, that appellants could secure a fair and impartial trial in the county. The trial judge who saw the witnesses and heard them testify resolved this conflicting testimony in favor of appellees and overruled the motion for a change of venue. In doing so he did not abuse his discretion. Gannaway v. Trinity Universal Insurance Company, Tex.Civ.App., 85 S.W. 2d 345, writ refused; Herd v. Wade, Tex. Civ.App., 63 S.W.2d 253; Freeman v. Cleary, Tex.Civ.App., 136 S.W. 521, writ refused; Barrow v. Barclay, Tex.Civ.App., 269 S.W. 235, writ refused; Ferguson Seed Farms, Inc., v. Fort Worth & D. S. P. Ry. Co., Tex.Civ.App., 100 S.W.2d 177.

By their second proposition appellants contend that G. B. Parr and his wife, Thelma D. Parr, under all the facts and circumstances, are estopped to assert title to the Clarkson share in Survey No. 553. We overrule this contention. It is true that after the sale of the Clarkson interest in Survey 553, by the substitute trustee, G. B. Parr was both a party and an attorney in a partition suit in which a partition was attempted between Mrs. Clarkson and G. B. Parr of this survey. It is also true that the instruments involved in the substitute trustee's sale (except the deed of trust) were not recorded until about seven years after the sale was held, on October 2, 1928. It is also true that when G. B. Parr and Thelma D. Parr filed their cross-action setting up title to all of Survey 553, they alleged they were joint owners. However, it is also true that Mrs. Thelma D. Parr was not a party to the original partition suit and cannot be bound by anything which her husband may have done in that suit. Any advantage which G. B. Parr may have gained by the partition had in cause No. 3516, was lost when that partition was set aside for lack of proper parties, as pointed out in our original opinion in this cause.

Appellees offered evidence to the effect that Mrs. Parr purchased the Clarkson interest in Survey 553 with her separate money and took title thereto in her own name. These facts, together with other circumstances, were sufficient to support the implied finding of the trial court to the effect that the Clarkson interest in Survey 553 was the separate property of Thelma D. Parr. Kearse v. Kearse, Tex.Civ. App., 262 S.W. 561, affirmed Tex.Com.App., 276 S.W. 690; Emery v. Barfield, Tex.Civ. App., 156 S.W. 311. Such finding was also supported by the pleadings. Where two parties allege in a trespass to try title suit that they are joint owners of property, proof may be offered that the property is the separate property of either. Art. 1983, R.C.S.1925; 41 Tex.Jur. § 78, p. 557; Anderson v. Anderson, 95 Tex. 367, 67 S.W. 404.

We conclude that, under all the circumstances, Geo. B. Parr would not be estopped to contend that Mrs. Clarkson did not own any interest in Survey 553, but certainly Thelma D. Parr had done nothing to estop her from claiming the Clarkson interest in Survey 553. Thompson v. Crim, 132 Tex. 586, 126 S.W.2d 18; Harle v. Texas Southern Ry. Co., 39 Tex.Civ.App. 43, 86 S.W. 1048; Ayres v. Fellrath, 5 Tex.Civ.App. 557, 24 S.W. 347; First State Bank of Tomball v. Tinkham, Tex.Civ.App., 195 S. W. 880, affirmed 109 Tex. 296, 206 S.W. 927.

The fact that the trustee's deed to Thelma D. Parr was not recorded for nearly seven years after it was executed would not of itself divest Mrs. Parr of her title to Survey 553. Simonds v. Stanolind Oil & Gas Co., Tex.Sup., 114 S.W.2d 226; Holland v. Blanchard, Tex.Civ.App., 262 S.W. 97, 101.

Appellants' third proposition is somewhat multifarious and duplicitous, but as we understand the proposition appellants are complaining therein because notice of the sale by the substitute trustee of Survey 553 to Thelma D. Parr was given only by posting of notices and was not also given by publication in a newspaper. The deed of trust, under which the sale was made, provided for a sale of the property in case of default in the payment of the indebtedness, and provided for notice in the following language: "first giving notice of the time, place and terms of the sale for at least twenty days successively next before the day of sale, by posting up written or printed notices of such sale at three public places in the County of Duval, State of Texas, one of which shall be at the Court House door of San Diego of said County, and by giving such other notice as is, or may be, required by law."

Article 28, R.C.S.1925, which was in effect on and about October, 1928, the time the sale was held, read as follows: "Whenever by law notice is required to be given of any act or proceeding, whether public or private, or relating to a judicial, executive or legislative matter, which notice is now authorized by law or by contract to be made by posting notices in one or more public places, such notices shall be given by publication thereof in a newspaper of general circulation which has been continuously and regularly published for a period of not less than one year, in the county in which said act or proceeding is to occur. Nothing in this article shall be...