Conn v. Houston Oil Co. of Texas

• Decision Date: 03 November 1914
• Docket Number: (No. 6680.)
• Citation: 171 S.W. 520
• Parties: CONN et al. v. HOUSTON OIL CO. OF TEXAS.
• Court: Texas Court of Appeals

171 S.W. 520

CONN et al. v. HOUSTON OIL CO. OF TEXAS.

(No. 6680.)

Court of Civil Appeals of Texas. Galveston.

November 3, 1914.

Rehearing Denied December 10, 1914.

Appeal from District Court, Newton County; A. E. Davis, Judge.

Suit by the Houston Oil Company of Texas against R. C. Conn and others. Judgment for complainant, and defendants appeal. Affirmed.

John B. Warren, of Houston, for appellants. Hightower, Orgain & Butler, of Beaumont, H. O. Head, of Sherman, and Parker & Kennerly, of Houston, for appellee.

McMEANS, J.

The Houston Oil Company of Texas brought this suit against R. C. Conn and John B. Warren to recover 1,051 acres of land in Newton county, part of the Lewis Donaho one-half league and labor survey. The defendants answered by plea of not guilty, and by cross-bill sought to recover the land from the plaintiff. In answer to the cross-bill the plaintiff pleaded not guilty. The case was submitted to a jury upon special issues, and upon return of the verdict a judgment was rendered and entered in favor of plaintiff, from which the defendants, after their motion for a new trial had been overruled, have appealed.

Plaintiff deraigned title as follows: (1) Patent from the state of Texas to Lewis Donaho, for one-half league and labor, dated December 12, 1845; (2) deeds from the heirs of Lewis Donaho, some of them acting through their duly authorized agents and attorneys in fact, to the Cow Creek Tram Company, dated respectively December 23, 1892, February 20, 1893, and February 18, 1895; (3) deed from the Cow Creek Tram Company to George Adams; (4) deed from George Adams to the plaintiff, Houston Oil Company of Texas.

The defendants deraigned title through a deed from Lewis Donaho to Wm. McFarland, conveying the entire survey. This deed was not produced on the trial, nor was it shown that it had ever been recorded, but its execution was proven by circumstances only, and was shown to have been executed at a date long anterior to the date of the deed from the heirs of Lewis Donaho to the Cow Creek Tram Company. Defendants further proved a regular, consecutive chain of transfers from Wm. McFarland down to themselves.

From the foregoing statement it will be observed that the defendants owned the senior title, which was superior to the junior title owned by the plaintiff, provided that, at the time the Cow Creek Tram Company purchased the land in controversy from the heirs of Lewis Donaho, it had notice of the execution of the deed by Lewis Donaho to Wm. McFarland, or had knowledge of facts that would have put a person of ordinary prudence upon inquiry, which, if diligently pursued, would have led to the discovery of its execution. It is apparent from the foregoing that one of the main issues upon the trial was whether the Cow Creek Tram Company was a purchaser for value without notice of the execution of the deed by Lewis Donaho to Wm. McFarland. If it was not, the judgment should have been for defendants; if it was, then the judgment for plaintiff was properly rendered, regardless of whether the Cow Creek Tram Company or plaintiff, in purchasing from Adams, had knowledge of the execution of the senior deed, or were in possession of facts that would put a person of ordinary prudence on inquiry. The undisputed facts show that Adams was acting for the Cow Creek Tram Company in purchasing the land from the heirs of Lewis Donaho, and any notice he had at that time of the execution of the senior deed, or other facts to put a person of ordinary prudence on inquiry, was chargeable to the tram company.

The seventh special issue submitted by the court to the jury is as follows:

"Question No. 7: Was George Adams or the Cow Creek Tram Company an innocent purchaser for value in good faith of the land purchased from the heirs of Lewis Donaho of 1,051 acres? You will answer this question, `Yes.'"

The jury, in obedience to the court's command answered this question in the affirmative.

The peremptory charge on this issue is assailed by defendants' first assignment of error; their contention being that the question was one for the jury to determine, since there was evidence introduced tending to show that George Adams, the representative of the tram company, had notice of the defendants' claim of title and of the claim of title of those under whom they hold.

We are met in limine by the objection of appellee to the consideration of this assignment, on the ground that this charge was not excepted to before it was submitted to the jury, and there was no exception to the action of the court in giving it preserved by a bill of exceptions. It is now too well settled to require further discussion that an objection to a charge, or any part thereof, will not be reviewed by the appellate court, unless the objection is preserved by a proper bill of exceptions incorporated in the record. Railway v. Wadsack, 166 S. W. 42; Railway v. Brown, 168 S. W. 867; Railway v. Mallard, 168 S. W. 994; Ford Motor Co. v. Freeman, 168 S. W. 82; Saunders v. Thut, 165 S. W. 554; Railway v Galloway, 165 S. W. 546; Johnson v. Hoover, 165 S. W. 900; Roberts v. Laney, 165 S. W. 116; Life Association v. Rhoderick, 164 S. W. 1068; Street Railway v. Barnes, 168 S. W. 992; Railway v. Churchill, 171 S. W. 517, decided by this court October 15, 1914. But does this rule apply to a peremptory instruction which takes from the jury the right to pass upon the facts? We are inclined to the opinion that it does not, but applies only to those charges which submit to the jury controverted fact issues raised by the evidence.

However that may be, we are of the opinion that the undisputed evidence introduced upon the trial was sufficient to show want of notice to the Cow Creek Tram Company, at the time of its purchase, of the execution of the deed by Lewis Donaho to Wm. McFarland conveying the entire Lewis Donaho survey, which deed, as before stated, was proved by circumstances only. We will not set out in detail the evidence which appellants contend tended to prove notice, but will content ourselves with the statement that we have carefully examined the evidence relied upon by appellants in that regard, and find the same is insufficient to raise the issue. The only fact tending even remotely to show notice was the proof that, at the time of the purchase of the 1,051 acres in controversy by the tram company from the heirs of Lewis Donaho, one W. K. Landrum was living upon, and had possession of, 86 acres of it, holding under a deed which was not then recorded, and in which the 86 acres was described by metes and bounds, and certain other parties had other portions of the Donaho survey in their possession, but, with the exception of Landrum, the possession of said other persons of different parts of the survey did not extend to or upon the 1,051 acres in suit. The evidence is uncontradicted that the Cow Creek Tram Company paid full value for the land. It was not shown that George Adams, who represented the tram company in making the purchase, and who died several years before the trial, had knowledge of possession of any part of the Donaho, other than that of W. K. Landrum of 86 acres of the tract involved in this suit, and this fact is shown only by the circumstances of Landrum's possession. The 86 acres is not involved in this appeal; it not having been awarded to either party. The possession of land not included in the deed to the tram company, it not having been shown that the tram company knew of such possession at the time it purchased, could not be constructive notice affecting the title to any land beyond that possession. Hayward Lumber Co. v. Bonner, 56 Tex. Civ. App. 208, 120 S. W. 578. Landrum's possession, whether the tram company had either actual or constructive notice of it, was not notice of claim to any part of the tract in controversy which he did not claim; and from the fact that the deed under which he was holding was not recorded such want of record could not enlarge the effect of his possession as notice. Wright v. Lassiter, 71 Tex. 640, 10 S. W. 296.

In consideration of the foregoing, we are of the opinion that the Cow Creek Tram Company was shown by the undisputed proof to be a purchaser for value without notice of any superior outstanding title to the land in controversy, and that the court did not err in giving the peremptory instruction complained of. As the Cow...