Hunley v. Bulowski, 6656

Decision Date05 March 1953
Docket NumberNo. 6656,6656
Citation256 S.W.2d 932
PartiesHUNLEY v. BULOWSKI et al.
CourtTexas Court of Appeals

E. F. Kucera and W. P. Donalson, Dallas, Texas, for appellant.

W. L. Crawford, Dallas, W. D. Brown, Quitman, Chilcote & Clark, Tyler, C. C. Renfro, Dallas, for appellees.

WILLIAMS, Justice.

This action primarily for a declaratory judgment involves the ownership of the minerals and only the minerals under a 148.53 acre tract of land out of the W. S. Fisher H. R. Survey in Wood County, Texas. Joe Bulowski and wife, Dr. Geo. A. Schenewerk and others who held or claimed under them were cast as plaintiffs, and L. L. Hunley and Schley McKay as defendants. It was agreed that J. Sid Pulliam and those holding under him own an undivided 1/7 interest; and Joe Lawther and those holding under him own an undivided 1/7 interest. As to the remainder, the court found that Schley McKey and Joe Bulowski, and those holding under them each owned an undivided 1/7 interest and Dr. Geo. A. Schenewerk an undivided 3/7 interest. The claim of L. L. Hunley to an undivided 1/7 interest was denied. He is the sole appellant.

W. K. Menefee, the agreed common source of title, acquired the land from the Quitman National Farm Loan Association by virtue of deed to him, dated April 21, 1931, and recorded May 13, 1931. He paid $700 cash and assumed the payment of $2,180 secured by deed of trust lien due the Federal Land Bank. Litigants agreed that 'after Menefee acquired the tract, he joined by his wife, executed ten deeds each purporting to convey an undivided one-seventh interest in the land and underlying minerals.' The grantees in said deeds are listed in column one which follows; the dates of the deeds are shown in column two; and the dates of filing are shown in column three:

                 (1)  J. S. Pulliam       5-12-31  5-20-31
                 (2)  Joe E. Lawther      5-12-31  5-20-31
                 (3)  Sue Cousins         5-12-31  5-27-31
                 (4)  W. H. Cousins       5-12-31  5-27-31
                 (5)  M. T. Paine et ux.  5-12-31  3-26-36
                 (6)  Geo.  A
                        Schenewerk        5-12-31  6-18-37
                 (7)  L. L. Hunley        11-5-34  2-21-44
                 (8)  Schley McKay        11-5-34  2-21-44
                 (9)  Geo.  A
                        Schenewerk (2nd)  5-28-36  6-18-37
                (10)  Joe Bulowski
                        et ux.             1-4-38  1-14-38
                

Subsequent to above conveyances, Paine and wife under a deed dated June 30, 1947, recorded July 3, 1947, conveyed to Schenewerk the 1/7 they formerly had acquired in 1931 from Menefee.

The deed from the loan association conveyed the full title in fee simple with general warranty of title. Each of the other above mentioned deeds purports to convey the fee simple title to a 1/7 interest in the tract subject to the outstanding debt and lien held by the Land Bank; and each of above grantees purchased in good faith, paying a valuable consideration and without actual notice of any alleged defect.

Under a deed, dated May 3, 1939, filed for record November 25, 1940, W. H. Cousins and wife, Sue Cousins, both now deceased conveyed to W. K. Menefee 'all our right, title and interest in and to' the 148.53 acres. The habendum clause in this deed reads: 'To have and to hold the said premises, together with all and singular the rights, privileges and appurtenances thereto in any manner belonging unto the said W. K. Menefee, his heirs and assigns, forever, so that neither we, the said W. H. Cousins and wife, Sue Cousins, nor our heirs, nor any person or persons claiming under us shall, at any time hereafter, have, claim or demand any right or title to the aforesaid premises or appurtenances, or any part thereof.'

It is to be observed that Menefee still owned a 1/7 interest prior to the time he executed his deeds to Hunley and McKay. Hunley and McKay agreed at the same time to buy. The court found that Menefee delivered his deed to Hunley first; this finding is not attacked. Hence upon delivery of this deed of November 5, 1934, Hunley acquired a good title to an undivided 1/7 interest. So upon delivery to Hunley, he, Pulliam, Lawther, Sue Cousins, W. H. Cousins, Paine and Schenewerk each was then vested with a good title to a 1/7 interest.

At the time of Menefee's delivery of his deed for a 1/7 interest to McKay, the Paine and Schenewerk deeds, both dated May 12, 1931, had not been filed for record. The two deeds not being of record at the time McKay purchased the 1/7 undivided interest, and he being a purchaser in good faith for a valuable consideration, the court concluded that the previous conveyance of a good title into Schenewerk was void as to McKay, and hence McKay acquired a good title to a 1/7 undivided interest. This conclusion is sustained. Hence on delivery of the McKay deed, he, Pulliam, Lawther, Sue Cousins, W. H. Cousins, Paine and Hunley each held a good title. A court at such time and now would have so adjudicated for the reason that Schenewerk's title was void as between him and McKay by reason of Art. 6627, Vernon's T.C.S., which reads: 'All bargains, sales and other conveyances whatever, * * * shall be void as to all creditors and subsequent purchasers for a valuable consideration without notice, unless they shall be acknowledged or proved and filed with the clerk, to be recorded as required by law; but the same as between the parties and their heirs, and as to all subsequent purchasers, with notice thereof or without valuable consideration, shall be valid and binding.'

Schenewerk made his second purchase of a 1/7 interest under the deed into him, dated May 28, 1936. At the time of this purchase, Schenewerk was charged with constructive notice of the deeds then of record. The deed records would have disclosed that Menefee had conveyed off 5/7 interest which with his interest he had bought in 1931 totaled 6/7 interest. The Hunley and McKay deeds then were not of record. Hence as found by the court, Schenewerk acquired a good title to this 1/7 interest under his purchase in May, 1936. Article 6627, supra.

It is apparent that at the time Schenewerk purchased a 1/7 interest from Paine in 1948 ...

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2 cases
  • Moran v. Adler
    • United States
    • Texas Supreme Court
    • 26 de julho de 1978
    ...v. Security Realty & Development Co., 54 S.W.2d 146, 150 (Tex.Civ.App. Beaumont 1932, writ ref'd); Hunley v. Bulowski, 256 S.W.2d 932 (Tex.Civ.App. Texarkana 1953, writ ref'd n. r. e.); Harper v. Over, 101 S.W.2d 830 (Tex.Civ.App. Eastland 1937, no writ); Annot., 63 A.L.R. 1362, 1370 (1929)......
  • Gainesville Oil & Gas Co., Inc. v. Farm Credit Bank of Texas
    • United States
    • Texas Court of Appeals
    • 9 de fevereiro de 1993
    ...v. Security Realty & Development Co., 54 S.W.2d 146, 150 (Tex.Civ.App.--Beaumont 1932, writ ref'd); Hunley v. Bulowski, 256 S.W.2d 932 (Tex.Civ.App.--Texarkana 1953, writ ref'd n.r.e.); Harper v. Over, 101 S.W.2d 830 (Tex.Civ.App.--Eastland 1937, no writ); Annot., 63 A.L.R. 1362, 1370 (1929......

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