Ford v. Warner

• Citation: 176 S.W. 885
• Decision Date: 20 March 1915
• Docket Number: (No. 689.)
• Parties: FORD v. WARNER.
• Court: Court of Appeals of Texas

176 S.W. 885

FORD v. WARNER.

(No. 689.)

Court of Civil Appeals of Texas. Amarillo.

March 20, 1915.

Appeal from District Court, Hardeman County; J. A. Nabers, Judge.

Action by H. E. Ford against George P. Warner. From a judgment for defendant, plaintiff appeals. Affirmed.

D. H. Doom, of Austin, and W. T. Perkins, of Quanah, for appellant. J. C. Marshall and M. M. Hankins, both of Quanah (John W. Veale, of Amarillo, of counsel), for appellee.

HUFF, C. J.

This is an action brought by H. E. Ford against Geo. P. Warner to remove cloud from title and to prevent Warner from using a quitclaim deed alleged to have been fraudulently obtained by him for the purpose of claiming the title to the tract of land therein described, which deed was in Warner's name, and which it is alleged that he obtained for the purpose of casting a cloud on plaintiff's title, and for a decree quieting the title in the appellant, Ford. The appellant alleged his title specially to the land given in the instruments, giving each instrument in his chain of title down to himself, and that he in good faith purchased the title from one Gardner Ruggles. He alleges that he believed he was getting a good record title at the time of his purchase, but after his said purchase, on an investigation of the record, it was found that the record title to said land was apparently vested in one H. M. Munsell; and he further alleged that Munsell, at the time of said purchase by Ford, had long since parted with his interest in said land by his deed of conveyance to some grantor in the chain of title under which appellant claims, but which deed has not been recorded. He alleges that, after being informed that the record title was in Munsell, he entered into an agreement with Warner to obtain a conveyance from Munsell to appellant, and that, in pursuance of said agreement, Warner, the appellee, obtained a quitclaim deed from Munsell to himself, and refused to convey the land to appellant or deliver him the deed so obtained, and has threatened to place said deed upon record, and thereby cast a cloud upon appellant's title to said tract of land, and claims the same adversely to appellant, although the title in said Geo. P. Warner by reason of said deed from said Munsell was acquired long after said Geo. P. Warner had conveyed his interest in the land by general warranty deed, and therefore the title was, in law, an after-acquired title, and inures to the benefit of all those claiming under the said Geo. P. Warner. The defendant answered, in part stating that he did not knowingly execute a deed to Gardner Ruggles, which is set out and described in plaintiff's petition, but that, if such deed was ever procured of and from appellee to Ruggles, it was procured by fraud and without the knowledge of appellee, and without consideration; that he never at any time knowingly signed such a deed, and that he never at any time intended to convey the land, and that he did not then have title to said section sued for, but that the title to the land was then in H. M. Munsell, and that, if any such deed is in existence, it was procured by fraud, and never acknowledged by him, and was without consideration. It is further alleged by appellee that, if Ruggles deeded to appellant the land, it was never intended to convey the title to said land, that appellant borrowed from Ruggles on the day the deed bears date $320, and that Ruggles, without any legal right to do so, gave the mortgage to appellant on said section 3 to secure the payment of said sum of money, and that the deed pleaded by plaintiff from Ruggles was, in truth and in fact, but a mortgage, and was intended as such at the time it was executed on said land to secure the above debt, and he alleges, if his careless acts caused appellant to be misled in the matter, he is only damaged in the matter of making the loan on a piece of land upon which the borrower had then no title, etc. He denies also that appellant purchased the land from Ruggles in good faith, and says the instruments, if any there were, passed from Ruggles to appellant, were, in truth and in fact, nothing more than a mortgage on property to secure the debt owing appellant by said Ruggles, and that Ruggles did not have any title or right to said land at all. He denies that he ever entered into any contract or promised appellant to procure a deed from Munsell; that appellee for several years had an optional contract with Munsell to purchase the land; and that he had entered into a written agreement with M. M. Hankins, of Hardeman county, Tex., to sell the land to him, and promised to make him title to same as soon as appellee could obtain deed from Munsell, and in pursuance thereto again tried to procure the deed from Munsell, and later on did procure a deed of conveyance of said land from Munsell, and he holds the same, as above stated.

It was agreed in this case in the trial court that Hogle and Mahn were the original owners of the land in question, and were the common source of title as to all the parties; that anterior to all conveyances these parties executed their powers of attorney to appellee; that on February 15, 1900, Hascal A. Hogle executed to appellee, Warner, his power of attorney, coupled with an interest and irrevocable, to sell all the lands, etc. On the 17th day of May, 1901, H. B. Mahn executed and delivered to Geo. P. Warner a power of attorney to sell and convey, among other lands, the land in question, which power was filed for record June 19, 1901. The appellant also offered in evidence a deed from Hascal A. Hogle, by and through his agent and attorney in fact, Geo. P. Warner, to H. M. Munsell, dated the 20th day of September, 1901, and filed for record December 5, 1901, conveying the property in controversy in this suit. He offered in evidence a deed of conveyance from H. B. Mahn to H. M. Munsell, conveying, among other lands, the land in controversy, bearing date the 25th day of September, 1901, filed for record December 5, 1901. Appellant also offered in evidence a deed of conveyance from Hascal A. Hogle and H. B. Mahn, acting by and through Geo. P. Warner, their agent and attorney in fact, to Gardner Ruggles, dated the 21st day of September, 1908, filed for record November 17, 1909, which is a general warranty deed, and purports to convey the whole title. Appellant offered in evidence a deed of conveyance from Gardner Ruggles to appellant, H. E. Ford, dated the 29th day of April, 1909, filed for record November 17, 1909, conveying the land in controversy, and being in form a general warranty deed, and purporting to convey the whole title to the property in controversy. There was on the date of this deed an agreement entered into between appellant and Ruggles, the substance of which, in the disposition of this case, we have concluded is not necessary to set out in our findings.

The land conveyed by these several instruments is described as survey No. 3, block A, located by virtue of certificate No. 30/442, issued to the Texas & New Orleans Railroad Company, and patented to B. H. Epperson, assignee, by patent No. 88, vol. No. 24, situated in Foard county, Tex. The facts are undisputed and alleged by both parties that Munsell, some time in 1910, reconveyed the land in question to Geo. P. Warner, and it is shown by a letter dated Austin, Tex., December 5, 1908, addressed to M. M. Hankins, Quanah, Tex., that Geo. P. Warner had accepted an offer made by Hankins to purchase the land in question.

The facts in this case show that Warner and Ford lived in the city of Austin, and were acquainted with each other and had lived there a good many years at the time of this transaction, and each engaged in the land business, and in an indefinite way shows that there was a large body of land that possibly belonged to the Consolidated Copper Company. Just the connection that Hogle and Mahn bore to this company is not developed by the record, and that Warner in some proceeding or other was receiver of that company, and that these lands were possibly placed in his hands by powers of attorney of Hogle and Mahn, and that Ruggles was an attorney in the city of Austin, and assisted Warner in making a great many of these sales. It was the custom for Ruggles to draft the deeds, and Warner to sign them as attorney in fact. From Warner's testimony we gather that there was an agreement between the various parties some time previous to the conveyance of the lands to Munsell that appellee should have section 3, the land in controversy, as his individual property, to compensate him for his services, and that Ruggles should have another section out of a different block not clearly identified in this record; that in 1901 Warner, Hogle, and Mahn conveyed section 3, as shown by the deeds, to Munsell, which conveyances were recorded in December, 1901, in the proper county. In 1908 it appears from Warner's evidence the Ruggles requested a deed from Warner for the section which Ruggles was to have for his services, and that he drew up the deed and sent for Warner to sign it, representing to him that it was the deed to his (Ruggles') section of land, and that he (Warner), relying upon the confidential and trust relationship theretofore existing between him and Ruggles, accepted his statement as to the contents of the deed without reading it, as he had previously done perhaps, and signed the deed, and that he, in fact, did not at that time acknowledge the deed. This deed, as it has since developed, conveyed section 3, the land which Warner was to have, and which had theretofore been conveyed to Munsell, which section was written into the deed. At the time Warner signed the deed to Ruggles he did not, in fact, know that it purported to convey section 3, and he did not know until the date of the trial in the court below that the deed he then signed actually conveyed section 3. Having heard that he conveyed the land, he really believed that his name had been forged to the...