Katz v. Rodriguez

• Citation: 563 S.W.2d 627
• Decision Date: 29 December 1977
• Docket Number: No. 1230,1230
• Parties: Frank KATZ, Appellant, v. Domingo RODRIGUEZ et al., Appellee.
• Court: Texas Court of Appeals

Page 627

563 S.W.2d 627

Frank KATZ, Appellant, v. Domingo RODRIGUEZ et al., Appellee.

No. 1230.

Court of Civil Appeals of Texas, Corpus Christi.

Dec. 29, 1977.

Opinion on Rehearing and Dissenting Opinion Feb. 23, 1978.

Rehearing Denied March 8, 1978.

O. B. Garcia, Garcia & Warburton, Brownsville, for appellant.

OPINION

YOUNG, Justice.

This is a suit to quiet title. Jose Silva and wife, Maria G. Silva, together with Domingo Rodriguez and wife, Minerva S. Rodriguez, claiming fee simple ownership of contiguous tracts of four acres and one acre, respectively, out of Block 33, Rio Hondo Park Townsite in Cameron County, sued Frank Katz seeking to have a deed conveying to him a certain 208.71 feet X 208.71 feet tract out of the southeast corner of Block 33, containing one acre, cancelled as a cloud on their title. In the alternative, they claimed title to such acreage by virtue of adverse possession under deeds with payment of taxes thereon for five years.

Block 33 contains five acres. The entire block was purchased by the Silvas from Paciano Morin and wife on February 12, 1960. On February 1, 1974, the Silvas transferred an acre out of the block's southeast corner to plaintiffs Rodriguez. The deed of the one-acre tract to defendant Katz antedates the deed to the Silvas by two years, being dated February 7, 1958. Although the Rodriguez deed and the Katz deed both embrace one acre out of the southeast corner of Block 33, the Katz acre is a square 208.71 feet X 208.71 feet, while the Rodriguez acre is a rectangle 435.6 feet X 100 feet.

The case was tried to the court without a jury. The trial court rendered judgment quieting the plaintiffs' title to their respective tracts and removing the cloud cast on their title by the defendant's deed. Katz appeals. We affirm.

The trial court made the following findings of fact.

"1. Defendant Katz purchased the one-acre tract in question on February 7, 1958.

2. Plaintiffs' Silva purchased the five acre tract in which the one acre tract in question is situated on February 12, 1960.

3. Plaintiffs' Silva conveyed the one acre tract in question to Plaintiffs' Rodriguez on February 1, 1974.

4. Plaintiffs have possessed the entire five acre tract since February 12, 1960 to this date.

5. Plaintiffs have paid the property taxes on the five acre tract.

6. Plaintiffs' have traced their title to a date prior to the year 1920 but did not trace title to the sovereignty or a common source.

7. Defendant has not paid for any property taxes since February 7, 1958.

8. Defendant has not been in possession of the one acre tract at no time since February 7, 1958.

9. Defendant has not traced title to any source, other than his deed of transfer."

From those findings the trial court concluded that the plaintiffs have superior title to the one-acre tract in question.

Appellant brings forward six points of error. His first and second points challenge the judgment because the plaintiffs failed to trace their title to the sovereign or to a common source. Appellant argues that his answer controverted plaintiffs' averments as to title, therefore plaintiffs were required to trace their title to the sovereign or to a common source; that plaintiffs did not do so and therefore as a matter of law appellant was entitled to judgment.

A suit to remove cloud from title or suit to quiet title is different from an action in trespass to try title. A suit in trespass to try title is statutory and accords a legal remedy, while a suit to remove cloud or to quiet title accords an equitable remedy. Standard Oil Co. v. Marshall,265 F.2d 46 (5th Cir. 1959), cert. denied, 361 U.S. 915, 80 S.Ct. 259, 4 L.Ed.2d 185 (1959). See Leopold, Texas Land Titles: Part II, 7 St. Mary's L.J. 58, 116 (1975). Trespass to try title is an action to recover the possession of land unlawfully withheld from an owner who has a right of immediate possession. Standard Oil Co. v. Marshall, supra. In this action no other principle is more pervasive than that which requires the plaintiff to recover on the strength of his own title; proof that the defendant has no title is insufficient for recovery. Halbert v. Green, 156 Tex. 223, 293 S.W.2d 848 (1956); State v. Noser, 422 S.W.2d 594 (Tex.Civ.App. Corpus Christi 1967, writ ref'd n. r. e.). Plaintiff may meet this burden in one of four ways: 1) he can show title emanating from the sovereignty of the soil to himself; or 2) he can show title in himself emanating from a common source to which the defendant claims; or 3) he may show title through limitations; or 4) he can show prior possession antedating defendant's possession. Reinhardt v. North, 507 S.W.2d 589 (Tex.Civ.App. Waco 1974, writ ref'd n. r. e.); State v. Noser, supra; Dimwitty v. McLemore, 291 S.W.2d 448 (Tex.Civ.App. Dallas 1956, no writ).

A suit to quiet title requires the allegation of an adverse claim. The gravity of that claim must be sufficient to place the property owner into a position that if such claim is asserted, it may cast a cloud upon his enjoyment of the property. Mauro v. Lavlies, 386 S.W.2d 825 (Tex.Civ.App. Beaumont 1964, no writ); Texas Development Co. v. Hodges, 237 S.W.2d 436 (Tex.Civ.App. Amarillo 1951, no writ). Although claimant must base his action on the strength of his own title, Humble Oil & Ref. Co. v. Sun Oil Co., 191 F.2d 705 (5th Cir. 1951), cert. denied 342 U.S. 920, 72 S.Ct. 367, 96 L.Ed. 687 (1952), he is not required to trace his title to either the sovereign or to a common source, as argued by defendant. Dalton v. Davis, 1 S.W.2d 571 (Tex.Comm'n App.1928, holding approved); Texas Development Co. v. Hodges, supra; Lee v. Grupe, 223 S.W.2d 548 (Tex.Civ.App. Texarkana 1949, no writ). It is clear that the claimant must show an interest of some kind, but it is error that the claimant must show fee simple or uncontestable interest to prevail in a suit to remove cloud on title or to quiet title. Dalton v. Davis, supra; Lee v. Grupe, supra.

In the present suit the trial court in the findings of fact determined: (No. 6) that the plaintiffs have traced their title to 1920; (No. 2) that they acquired their title through purchase on February 12, 1960; and (No. 4) that the plaintiffs have possessed the five acre tract from February 12, 1960 to April 28, 1977. Of those findings of fact only finding No. 4 is challenged on appeal. Even if finding No. 4 is erroneous, the unchallenged findings No. 2 and No. 6 constitute undisputed facts and are binding on the appellant as well as this Court. Bilek v. Tupa, 549 S.W.2d 217 (Tex.Civ.App. Corpus Christi 1977, writ ref'd n. r. e.); McKenzie v. Carte, 385 S.W.2d 520 (Tex.Civ.App. Corpus Christi 1964, writ ref'd n. r. e.). This evidence constitutes sufficient proof to show that the plaintiffs owned the land described in their petition and that they have superior title thereto. Dalton v. Davis, supra; Lee v. Grupe, supra.

Defendant would have us hold that his answer of "not guilty" controverts plaintiffs' title thereby placing the burden of tracing their title to the sovereignty or to a common source. This would be true if plaintiff had brought suit in trespass to try title. But the case before us has been pled as a suit to quiet title or to remove cloud. And in that instance, as we have noted, the plaintiffs are not required to trace their title to the sovereignty or to a common source. Appellant's first and second points are overruled.

Appellant's third and fourth points attack the trial court's judgment as based on findings indicating adverse possession by appellees under the five-year statute of limitation, codified as Tex.Rev.Civ.Stat.Ann. art. 5509 (1958). We agree with appellant in that title cannot be claimed under Article 5509 where taxes are paid after becoming delinquent, as is the case here. Houston Oil Co. v. Jordan, 231 S.W. 320 (Tex.Comm'n App.1921, jdmt. adopted); Churchman v. Rumsey, 166 S.W.2d 960 (Tex.Civ.App. Amarillo 1942 error ref'd w. o. m.). Any error asserted under these points is harmless error, however, in that appellees, as we have previously noted, are entitled to judgment based on other of the trial court's findings. Appellant's third and fourth points are overruled.

In his fifth point the appellant contends that the trial court erred in permitting the appellees to testify that they owned the lands embracing the one-acre tract described in appellant's deed, because such evidence was hearsay and therefore inadmissible. If the trial court's action was error, it was harmless error. This is so because the appellees produced certified copies of deeds relied upon by them as affecting the course of their title. Those instruments were admitted into evidence by the trial court and there is no complaint of such action on appeal. See McCormick & Ray, Texas Evidence § 1568 (2d ed. 1956). Appellant's fifth point is overruled.

Finally, the appellant asserts, in his sixth point, that the trial court erred in rendering judgment removing the cloud cast on appellees' lands by appellant's deed because appellees failed to locate the appellant's one-acre tract in relation to the location of appellees' lands in Block 33. We have reviewed the record and we are of the opinion that this contention is without merit. Appellant's sixth point is overruled.

The judgment of the trial court is affirmed.

OPINION ON MOTION FOR REHEARING

On motion for rehearing, defendant contends that we erred in finding that only the trial court's finding of fact No. 4 is challenged on appeal. He says that he specifically excepted to findings No. 3 through No. 9 as shown by the transcript. Defendant did except to all of those findings in the trial court. Unless the trial court's findings of fact are challenged by point of error on appeal, however, they are binding on the appellate court. Bilek v. Tupa, 549 S.W.2d 217 (Tex.Civ.App. Corpus Christi 1977 writ ref'd n. r. e.); McKenzie v. Carte, 385 S.W.2d 520 (Tex.Civ.App. Corpus Christi 1964, writ ref'd n. r. e.). Therefore, defendan...