Connor v. Lane

• Decision Date: 25 January 1962
• Docket Number: No. 3938,3938
• Citation: 355 S.W.2d 223
• Parties: W. P. CONNOR and C. T. Robbins, Appellants, v. C. E. LANE, Appellee.
• Court: Texas Court of Appeals

Page 223

355 S.W.2d 223

W. P. CONNOR and C. T. Robbins, Appellants, v.C. E. LANE, Appellee.

No. 3938.

Court of Civil Appeals of Texas, Waco.

Jan. 25, 1962.

On Motion for Rehearing Feb. 15, 1962.

Ramsey & Ramsey, San Augustine, for appellant.

Bill A. Martin, Newton, J. L. Smith, San Augustine, Arthur Mitchell, Austin (on rehearing only), for appellee.

WILSON, Justice.

This trespass to try title action began as a partition proceeding instituted by appellee, Lane, in which the alleged appellants, Connor and Robbins, were joint owners with him of four tracts comprising 180.3 acres.The parties agree that the answers of Connor and Robbins asserting exclusive ownership, with a plea of not guilty, converted the partition suit to one of trespass to try title.

During the marriage of Lane's stepfather and his mother, tracts of 106.6 acres and 40.7 acres were conveyed to the stepfather as named grantee.Thereafter, Lane's mother died intestate.Lane's stepfather subsequently died, leaving a will in which he devised 'all my other property', after specific bequests, to defendant Robbins, his son by a prior marriage.

Lane claims the community one-half interest of his mother, alleging Robbins is his cotenant or tenant in common; defendant Robbins contends the entire freehold passed to him by his father's will; and Connor is the grantee of Robbins by deed conveying the 180.3 acres for valuable consideration, filed for record about three years before suit.

Jruy findings were against appellants Robbins and Connor on their pleas of ten-year adverse possession, and their pleas of estoppel based on allegations that Lane had told them he was 'not claiming any' of the land.By the judgment the court concluded plaintiff Lane and defendant Connor are sole owners, and entitled to partition of the 180.3 acres, except a royalty interest; and directed partition as prayed for by Lane.

Appellants say that Lane proved only an equitable title, because the deed to his stepfather, the asserted common source, named only the stepfather as grantee; that under such decisions as Hill v. Moore, 62 Tex. 610;Patty v. Middleton, 82 Tex. 586, 17 S.W. 909;Howard v. Commonwealth Bldg. & Loan Ass'n, 127 Tex. 365, 94 S.W.2d 144;andStahl v. Westerman, Tex.Civ.App., 250 S.W.2d 325, where only the husband's name is mentioned in the deed by which community property is acquired, the wife' interest therein is equitable in nature, and upon her death such interest passes to her heirs as an equity; and therefore Lane is in the position of seeking to prevail over the holders of the legal title by showing only an equitable title or interest.

This contention is applicable only to appellant Connor, alleged by Lane to own one-half the fee except the reserved royalty interest therein, and as to him we think the position is correct and reversal is required unless it was shown he was not an innocent purchaser.We find no direct evidence indicating he had any notice, actual or constructive, of the equitable title or interest of Lane.

Appellee counters that appellants neither pleaded the innocent purchaser defense nor requested submission of any issue thereon, and hence, have waived it as a basis for defeating Lane's effort to establish his title so as to be entitled to partition.

This narrows the question to determination of the party upon whom the burden of proof rests as to the innocent purchaser issue.Where the holder of an equitable title relies on it in this type of case to prevail over the subsequent purchaser of the legal title, the burden rests on the former to establish the holder of the legal title had notice, and was not an innocent purchaser.Hill v. Moore, 62 Tex. 610, 615;Mitchell v. Schofield, 106 Tex. 512, 171 S.W. 1121;Teagarden v. R. B. Godley Lbr. Co., 105 Tex. 616, 154 S.W. 973, 974;Howard v. Commonwealth Bldg. & Loan Ass'n, 127 Tex. 635, 94 S.W.2d 144, 145;Baldwin v. Root, 90 Tex. 546, 40 S.W. 3;and seeDe la Vega v.League, 64 Tex. 205, 216;Strong v. Strong, 128 Tex. 470, 98 S.W.2d 346, 347, 109 A.L.R. 739;Patty v. Middleton, 82 Tex. 586, 17 S.W. 909, 911;Dahlberg. v. Holden, 150 Tex. 179, 238 S.W.2d 699, 703;Banks v. Blake, Tex.Civ.App., 143 S.W. 1183;...