Hume v. Carpenter

• Decision Date: 27 April 1916
• Docket Number: (No. 5548.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 188 S.W. 707
• Parties: HUME v. CARPENTER et al.
• Court: Texas Court of Appeals

188 S.W. 707

HUME v. CARPENTER et al.

(No. 5548.)^*

Court of Civil Appeals of Texas. Austin.

April 27, 1916.

On Appellant's Motion for Rehearing, June 14, 1916.

Rehearing Denied October 11, 1916.

Appeal from District Court, McLennan County; J. Walter Cocke, Special Judge.

Trespass to try title by the Central Texas Improvement Company and W. B. Carrington against R. B. Carpenter and others, in which S. L. Hume filed a plea of intervention, setting up the ordinary allegations in trespass to try title. Dismissed as to plaintiffs Central Texas Improvement Company and W. B. Carrington, and judgment for defendants, and the intervener Hume appeals. Reversed, and judgment rendered for intervener.

H. N. Atkinson, of Houston, W. L. Eason and W. B. Carrington, both of Waco, for appellant. Pat M. Neff, Edgar E. Witt, Wm. R. Saunders, and Chas. B. Braun, all of Waco, for appellees.

Statement of the Case.

RICE, J.

In 1890 the Provident Investment Company, a private corporation, was chartered and organized for the purpose of buying, improving, and selling real estate, with its principal office in the city of Waco; its directors and officers being prominent business men of said city, Sam Sanger being president and H. N. Atkinson secretary and treasurer during the time of the transactions herein involved. Soon thereafter the company purchased several tracts of land adjacent to the city of Waco, which it plotted into blocks, lots, streets, and alleys as an addition to the city of Waco, known as Provident Heights addition, and made numerous sales thereof, the deeds being executed by Sanger as president and attested by Atkinson as secretary, which were duly recorded in the Deed Records of McLennan county. The unsold portion of this property seems to have been rendered for taxes up to 1901 in the name of the company, but after that time was rendered as "unknown" for the years 1902, 1903, and 1904, inclusive, and for which years the taxes were unpaid, and the property was placed on the delinquent roll.

During the year 1905 suit was instituted in the name of the state by the county attorney of McLennan county against the unknown owners of block 41 of said addition, to enforce the collection of the taxes due thereon for the years 1900, 1902, and 1903, and judgment was thereafter rendered against the unknown owners, and the property sold and purchased by W. R. Denton, for a nominal consideration, who thereafter conveyed the same to his codefendants Cannaday and Carpenter. The Provident Investment Company, at time of such tax proceedings against the unknown owners, and at the time of the execution of the deed to Carpenter and Cannaday, was the record owner of the lots in controversy from the sovereignty of the soil. Subsequent to such sale, and before this suit was brought, the Central Texas Improvement Company and W. B. Carrington purchased from the Provident Investment Company the unsold portion of said addition, including lots 1, 2, 5, 6, 7, 8, and 9 in block No. 41 thereof, and they thereafter conveyed same to S. L. Hume; and this suit was brought on the 22d of December, 1913, in the ordinary form of trespass to try title, by the Central Texas Improvement Company, a corporation, and W. B. Carrington, against defendants R. B. Carpenter, W. R. Denton and wife, Mattie D. Denton, and H. E. Cannaday, to recover title and possession of the lots above named.

On the 2d of May, 1914, S. L. Hume, appellant herein, filed his plea of intervention, complaining of the defendants hereinbefore mentioned, setting up the ordinary allegations in trespass to try title to said lots.

Appellees, defendants below, in their second amended original answer denied the allegations of plaintiff's pleading, and interposed plea of not guilty, as well as the three and five year statutes of limitation, and also improvements in good faith; and the Central Texas Improvement Company and W. B. Carrington and intervener Hume filed their second supplemental petition, wherein, among other things, they denied each and all of the allegations of said defendants' second amended original answer, and prayed as in their original pleadings for title and possession of the property, except that appellant admitted the improvements alleged.

During the progress of the trial at the conclusion of the evidence and before the charge was read to the jury, the Central Texas Improvement Company and W. B. Carrington, on their own motion, were dismissed from the case without prejudice, after which the trial proceeded in the name of the intervener alone. The court, after instructing the jury that the evidence showed that the intervener had the record title to the lots in controversy, submitted the case on the issues of estoppel and improvements in good faith only, these phases being submitted on special issues; and the jury in response to both found in favor of appellees, and judgment was entered in accordance therewith, from which appellant has prosecuted this appeal.

The ground of estoppel relied on was based on certain alleged statements by Atkinson to Street, the assistant county attorney of McLennan county, made prior to the institution of the tax proceedings, to the effect that the Provident Investment Company was dissolved, and that the ownership of the lots in question was unknown to him. It appears from the testimony of Mr. Street that before he filed the tax proceedings against the unknown owners of the property above referred to, that he had understood that the Provident Investment Company had been dissolved and that Col. Atkinson, its former secretary and treasurer, had moved to Houston, and that he knew more about the history of the property than any one else; and for the purpose of obtaining information he wrote him in regard to same, but received no reply. Soon thereafter he met Col. Atkinson on the street in Waco, and asked him if he had received his letter, to which Atkinson replied, "Yes, but on account of press of business I have not answered it." He told Atkinson that he was anxious to find out who owned the lots, as he wanted to collect the delinquent taxes. He then asked him whether the company had dissolved, and who were the owners of the lots in controversy, and where were its records. Atkinson stated that the company had dissolved, having previously distributed its property among the stockholders; that he did not know who now owned the lots in controversy, and that the stock book was lost; that he did not know much about it, and particularly as to the lots inquired about. On cross-examination Mr. Street admitted in this connection that Atkinson stated that he had been absent from Waco for a considerable period of time, during which he had given no attention to the business of the company, and that he did not know who owned the lots.

It was shown that Mr. Denton, before purchasing the property in controversy, had a talk with Street about the title, who told him what Atkinson had said in reference thereto; but Denton stated that in purchasing the property he relied on his own knowledge, as well as upon what Street told him. Mr. Street admitted that the conversation with Atkinson was a hurried one on the street, and at the time of such conversation he knew that the deed records showed the title to the property in controversy to be in the Provident Investment Company, having examined the records for the purpose of ascertaining who owned the lots. He further admitted that he had testified in the Harvey Case that he might have gotten the impression that the property had been distributed among the stockholders from other sources — may have been quick to conclude this on account of such information.

It further appears that Street, before bringing suit, had also talked with Mr. Barcus, who was formerly assistant county attorney, about the ownership of these lots, who detailed a conversation had by him (Barcus) with Col. Atkinson in reference thereto, the effect of which was to show that Atkinson had stated to Barcus that he did not know who owned the lots in controversy.

This seems to have been about the extent of the inquiry made as to the ownership of the lots prior to the institution of the tax proceedings against the unknown owners by Mr. Street, acting as assistant county attorney; and, notwithstanding the fact that the Provident Investment Company was a Waco concern, whose officers and directors were all prominent business men of said city, no further effort, than as above outlined, is shown on the part of Mr. Street to ascertain the ownership of said lots before instituting the tax suit.

It appears that Carpenter, before purchasing the property conveyed to him, had an abstract of the title made, which disclosed the fact of these tax proceedings against the unknown owners, and that his attorneys advised him that he was only obtaining a tax title to the property; that while he might never be bothered, that he was taking a chance at it, and suggested to him that he call upon Mr. Sanger, who was still acting as president of the company. It seems that he called to see Mr. Sanger in accordance with such suggestion, and he stated that Sanger told him, in substance, that the company was dissolved and was satisfied that no one would interfere with him in the purchase; that so far as he (Sanger) was concerned, he would not, and expressed the belief that he would be safe in making the purchase, after which he purchased the property from Denton; but this conversation occurred long subsequent to the tax proceeding and sale thereunder.

Opinion.

The chief contention on the part of appellant is that the court erred in submitting the case to the jury on the charge of estoppel, insisting: (1) That the statements of Col. Atkinson, the secretary and treasurer of the company, were not sufficient upon which to base such charge; and (2) if it be conceded that they were, then it does not appear therefrom that Atkinson had any authority from the company, either express or...