Coakley v. Crow, 548

• Decision Date: 23 July 1970
• Docket Number: No. 548,548
• Parties: Mary Ellen COAKLEY, Appellant, v. W. N. CROW et al., Appellees.
• Court: Texas Court of Appeals

Page 431

457 S.W.2d 431

Mary Ellen COAKLEY, Appellant, v. W. N. CROW et al., Appellees.

No. 548.

Court of Civil Appeals of Texas,

Corpus Christi.

July 23, 1970.

Rehearing Denied Aug. 27, 1970.

Orrin W. Johnson, Harlingen, for appellant.

E. G. Henrichson, of Henrichson & Bates, Edinburg, for appellees.

OPINION

GREEN, Chief Justice.

Mary Ellen Coakley, appellant, sued F. M. Reising and others in trespass to try title to recover a seventy acre tract of land in Hidalgo County, Texas. She also sued Sarah H. Conklin and others to recover a tract of about thirty-eight acres, also in Hidalgo County. The two cases were tried together in a jury trial, since they concern the same chain of title. Plaintiff Coakley claims title by reason of (1) a 1941 deed from Mattie Page Coffin (wife at the time of his death of the common source, James R. Page, deceased) and her husband Erle B. Coffin to Joseph M. Collins, (2) Joseph Collins' devise of the property to Will Collins, and (3) a 1943 deed from Will Collins to plaintiff. The defendants are in possession and claim by force of a 1942 default judgment of foreclosure by Hidalgo Water District No. 1 and a constable's deed to the District. The Water District then conveyed the two tracts of land to the defendants or their predecessors in title. The District's foreclosure suit was brought against Mattie Page Coffin and her sons, they being the record owners in 1942 of the property since the deed from Mrs. Coffin and husband to Joseph Collins was not at that time of record. Will Collins, the devisee under Joseph M. Collins' will, was not named as a party to the foreclosure suit. See, on former appeal, Coakley v. Reising, et al, Tex.Sup., 436 S.W.2d 315.

This cause has been pending in the courts since 1947. Three trials have taken place. The Reising case was tried before the court on title issues in September, 1949, resulting in a judgment for the plaintiff which, however, was set aside on plaintiff's motion. The cases remained on the docket for many years, and were tried jointly in May, 1966. At the end of this trial the case was dismissed before submission of special issues to the jury when defendants' motion that plaintiff had sued in the wrong capacity was sustained. Upon appeal, this judgment was set aside by the Supreme Court and the case was remanded for trial. Coakley v. Reising, et al, supra.

Upon the instant trial, a take nothing judgment was entered by the trial court on October 29, 1969, based upon jury findings. Plaintiff's motion for new trial was overruled and the case is now before this Court on appeal.

The history of the events out of which the litigation arose, and the contentions of the parties as to their respective claims of title, are set forth in Judge Pope's opinion on the former appeal, 436 S.W.2d at pp. 316--317, to which reference is here made. Any additional facts or matters of evidence will be discussed under the pertinent points of error.

Appellant-plaintiff Coakley contends (1) that the Water District officials had actual notice as a matter of law of the Collins' title and that the evidence was legally and factually insufficient to raise an issue of fact of the absence of such notice, and (2) that the judgment of foreclosure was illegal and void.

Appellant also asserts various errors in connection with the court's charge, in the rulings on introduction of evidence, and she also raises the claim of jury misconduct.

Appellant's first two points of error assert in substance that the evidence proved as a matter of law that officials of the Water District had notice that Mattie Page Coffin had conveyed the lands in question to J. M. Collins, and that the jury findings to the contrary did not find support in the evidence, and were contrary to the overwhelming weight of the evidence. To these points appellees reply that the findings of the jury on the notice issues were supported, both legally and factually, by the evidence.

The applicable law with reference to actual notice of an unrecorded title is stated in the Supreme Court's opinion on the former appeal of this case, supra (436 S.W.2d on p. 318) thusly:

'It was Mrs. Coakley's theory that the Water District had actual notice that Will Collins, her predecessor, owned the land even though the title documents were not recorded. She contends the Water District failed to join him in the foreclosure suit, his title was not foreclosed, and the Water District judgment was void as to him.

(3, 4) It is settled by Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286 (1951), and other cases cited in that opinion, that a judgment by a taxing agency is not binding upon a person who is not a party to the suit, when his ownership is evidenced by an unrecorded document, If the taxing authority has actual or constructive notice of his title or ownership. ¹

1] Persons 'actually or constructively known to have an interest in the land should be joined as parties' in a tax foreclosure suit. 54 Tex.Jur.2d, Taxation, § 163; Scales v. Wren, 103 Tex. 304, 127 S.W. 164 (1910). Unless this is the rule, the taxing authority could bring suit and serve process, as plaintiffs contend was done in this case, upon those who have already parted with title and are not the least interested in the suit. Hunt v. State, 110 Tex. 204, 217 S.W. 1034 (1920).'

Of course there were no jury findings on the issue of notice in the former trial, since the suit was ordered dismissed by the trial court before submission of the jury. The Supreme Court, in overruling requests of both parties to decide the issue of notice as a matter of law and render judgment, held, in addition to its holding that the plaintiff could sue in her individual capacity, that the evidence then before the Court created jury fact issues on the question of notice, and reversed and remanded.

On the trial from which the instant appeal was taken, the jury returned negative answers to all special issues inquiring whether, from a preponderance of the evidence, they found that certain named Water District officials or either of them had actual notice in law, as that term was defined in the charge, of the deed from Mrs. Mattie Page Coffin to J. M. Collins, and (separate issues) whether such officials had such notice that Will Collins was successor in interest of Mrs. Page and J. M. Collins to the lands in question. We find, from a study of the briefs and the statement of facts, that such findings have support in the evidence, and are not contrary to the great weight and preponderance of the evidence.

Will Collins, prior to the filing of the foreclosure suit, had made a trip to Hidalgo County, and there was evidence that he had shown interest in certain properties, and that he had conversed with officials of the district about some of the land. However, such evidence did not more than raise fact issues as to any claimed conversation with District officials about any title interest in the property in question, since any knowledge of any conversations of any title claims by Collins was denied by the officials involved. Correspondence between the Collins and District was in evidence, but we do not construe such correspondence as informing District or its officials of any title claims to this land.

As conclusively establishing as a matter of law notice of Collins' claims of title to these tracts, appellant relies principally on proof of a tax suit brought by the State of Texas on December 22, 1941, against various defendants including J. M. Collins on seven tracts of land, including, among others the tracts here involved. The Water District was named as a defendant, and executed a waiver of service and acknowledgment of a receipt of a copy of plaintiff's petition. Although this was evidence to be considered along with other testimony of notice by the District of Collins' ownership, it did not establish such notice as a matter of law. See discussion on former appeal, supra, 436 S.W.2d on p. 318. Collins had nothing on record in Hidalgo County to evidence any claim of title. He had exercised no rights of possession of the property. Other tracts besides the ones here involved and other defendants besides Collins, were included in the State's suit, and there were no allegations of any claim of title by any specific defendant to any specific tract. There was evidence that the names of other defendants did not appear anywhere in the chain of title to the property which is the subject of the instant case.

Notice is, ordinarily, a fact issue, and does not become a question of law unless the facts are such as to require the law to recognize that notice exists as a matter of law. Under the record presented here, it was a fact issue before the trial court, and that court properly submitted such fact issue to the jury. Appellant's first and second points are overruled.

By her third and fourth points of error, and by her Second Reply Point in her Reply Brief, appellant makes the contention that the foreclosure of District's tax lien was illegal and the judgment and sale was void because (a) it was a foreclosure In solido of three different liens in differing amounts on three different pieces of land owned by one not a party to the suit, and (b) because the sale was tainted by a champertous agreement between defendants and District.

As to (a) above, the fact that the one judgment foreclosed on several tracts and ordered them sold in satisfaction of the three different tax liens, i.e. a foreclosure in solido of the tax liens, constituted error, and the judgment would have been subject to reversal on direct appeal. McPhaul v. Byrd, Tex.Civ.App., 174 S.W. 644, n.w.h.; Snell v. Knowles, Tex.Civ.App., 87 S.W.2d 871, 878, wr. dism.; Livingston v. Stubbs, Tex.Civ.App., 151 S.W.2d 285, wr. dis. cor. judg. But such judgment is not void, and is not subject to collateral attack. Snell, supra; Livingston, supra.

We have carefully considered all of the evidence and appellant's points bearing on appell...