Kerby v. Ogletree, 6173

• Decision Date: 24 April 1958
• Docket Number: No. 6173,6173
• Citation: 313 S.W.2d 325
• Parties: J. B. KERBY et al., Appellants, v. Ben OGLETREE et al., Appellees.
• Court: Texas Court of Appeals

Page 325

313 S.W.2d 325

J. B. KERBY et al., Appellants, v. Ben OGLETREE et al., Appellees.

No. 6173.

Court of Civil Appeals of Texas, Beaumont.

April 24, 1958.

Rehearing Denied May 21, 1958.

Kirby Kelley, Shepherd, Jeff Cockran, Cleveland, Borden Seaberry, Weatherford, for appellants.

Hollers & O'Quinn, Austin, Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Robert F. Atkins, Cold Springs, V. A. Collins, Livingston, for appellees.

R. L. MURRAY, Chief Justice.

This is an appeal from a judgment in a suit in trespass to try title in the district court of San Jacinto County. Appellants, J. B. Kerby, et al., brought suit for title and damages to a 319 acre tract of land in the Uriah Gibson Survey in San Jacinto County. The appellees, Ben Ogletree, et al., answered by plea of not guilty, general denial and pleas of five and ten year statutes fo limitations, Vernon's Ann.Civ.St. arts. 5509, 5510.

The chains of title of both the appellants and the appellees come from a common source, James H. Webb. Appellees claim title through Joseph Adams, by virtue of a deed from James H. Webb to Joseph Adams, dated August 12, 1872, and filed for record April 9, 1934. The appellants claim through a deed from James H. Webb to S. H. Wills, dated October 20, 1876, recorded June 19, 1880, and a deed from S. H. Wells of Orleans Parish, Louisiana, to J. B. Kerby, dated September 3, 1921, and recorded September 29, 1921.

The appellees introduced in evidence a quitclaim deed from John L. Wills, dated June 14, 1934, and an affidavit of heirship by John L. Wills that he was the only heir of S. H. Wills, deceased, and his wife, Nancy Elizabeth Wills.

The land in suit is the same land, the title to which was in litigation in the case of Fenley v. Ogletree, 277 S.W.2d 135, decided by this court. Writ of error was refused by the Supreme Court, no reversible error. In that case, Ogletree, et al. sued Fenley, et al., in trespass to try title and for damages for timber cutting. Fenley, et al. defended, in part, on the ground that there was an outstanding title in J. B. Kerby, who was not a party to that suit. In the instant suit Kerby was one of the plaintiffs in the trial court and is one of the appellants here. The validity of Kerby's title is the principal matter of controversy here.

In September, 1921, at the time Kerby obtained his deed from S. H. Wells and filed it of record, the 1872 deed from Webb to Adams was not of record. It was executed, however, prior to the 1876 deed from Webb to S. H. Wills. As it was determined and pointed out in Fenley v. Ogletree, Tex.Civ.App., 277 S.W.2d 135, the burden was therefore upon Kerby, et al., as plaintiffs in the present suit, to establish that S. H. Wills and S. H. Wells were one and the same person and that Kerby, at the time he secured his deed in 1921, or Wills, at the time he secured his deed in 1876, was an innocent purchaser for value. Evidence on these issues was introduced. The trial court submitted the following special issues to the jury, and the jury answered them as indicated:

'Special Issue No. 1.

'Do you find from a preponderance of the evidence that at the time that J. B. Kerby obtained said deed, dated September 3, 1921, that he bought the same without notice that Joseph Adams was claiming an interest in said land?

'Answer: 'He did have notice' or 'He did not have notice.'

'Answer: He did hove notice

'In connection with this issue, you are instructed that by the term 'notice', as used herein, is meant either that he had actual knowledge thereof or that he had knowledge and information of such facts as would put a reasonably prudent person upon inquiry as to whether he was making any claim, from which inquiry, if made, he would have ascertained the facts as to the claim.

'Special Issue No. 2

'Do you find from a preponderance of the evidence that at the time that J. B. Kerby obtained said deed, dated September 3, 1921, that his agent J. Howard West, was without notice that Joseph Adams was claiming an interest in said land?

'Answer: 'He did have notice,' or He did not have notice.'

'Answer: He did have notice

'In connection with this issue, you are instructed that by the term 'notice', as used herein, is meant either that he had actual knowledge thereof or that he had knowledge and information of such facts as would put a reasonably prudent person upon inquiry as to whether he was making any claim, from which inquiry, if made, he would have ascertained the facts as to the claim.

'If you have answered Special Issue No. 1 and 2 'He did not have notice', and only in that event, then answer:

'Special Issue No. 3.

'Do you find from a preponderance of the evidence that the plaintiff, J. B. Kerby, paid a valuable consideration for the land in question described in the deed to him dated September 3, 1921, recorded in Volume 15, Page 320, Deed Records of San Jacinto County, Texas?

'Answer: 'Yes' or 'No'.

'Answer: _____

'In connection with the above and foregoing Special Issue, you are further instructed that the term 'valuable consideration,' as used herein means a consideration of some value. It does not mean that it must be an adequate consideration, but it means something more than nominal consideration, and must be a consideration in keeping with the value of the land described in said deed of September 3, 1921.

'Special Issue No. 4.

'Do you find from a preponderance of the evidence the 'S. H. Wells,' the grantor in the deed to J. B. Kerby, which is of date September 3, 1921, was one and the same person as 'S. H Wills,' grantee in the deed from James H. Webb, of date October 20, 1876?

'Answer: 'He was the same person,' or 'He was not the same person.'

'Answer: He was not the same person.'

On the verdict of the jury the trial court entered judgment that the appellants take nothing by their suit, and that the property described 'be adjudged in defendants herein free and clear of any claim, right or title of the plaintiffs and intervenors.' The appellants filed their motion for new trial and when said motion was overruled they have perfected their appeal to this court.

The appellants bring their appeal under 19 points of error. By their first five points, which are briefed together, they say this case should be reversed because the verdict of the jury was contrary to the overwhelming evidence and the law, was wrongful and manifestly unjust, denied the right of appellants, and caused or probably caused the rendition of an improper judgment; because the jury failed to answer Special Issue No. 3, as predicated by the trial court, and such failure was wrongful and unjust and caused or probably caused the rendition of an improper verdict and judgment; because the finding of the jury in answer to Special Issue No. 1 was not supported by the overwhelming evidence, was contrary thereto, was wrongful and unjust, and caused or probably caused the rendition of an improper judgment; because the finding of the jury, in answer to Special Issue No. 2, was not supported by the overwhelming evidence, was contrary thereto, was wrongful and unjust, and caused or probably caused the rendition of an improper judgment; because the finding of the jury, in answer to Special Issue No. 4, was not supported by the overwhelming evidence, was contrary thereto, was wrongful and unjust, and caused or probably caused the rendition of an improper judgment.

Points Nos. 6 through 14 contend that the case should be reversed because the judgment of the trial court was contrary to the evidence and the law, denied the rights of the appellants and was wrongful and manifestly unjust; because the trial court erred in refusing to submit the issue that J. B. Kerby acted in good faith in purchasing in 1921 the lands in controversy; because the trial court erred in submitting Special Issue No. 3 with the conditional precedent thereto regarding valuable consideration; because the trial court erred in refusing to submit their Special Requested Issue No. 'E' regarding valuable consideration; because the trial court erred in submitting Special Issue No. 1 and its definition of notice therewith; because the trial court refused to submit their Special Requested Issue No. 'B' regarding notice; because the trial court erred in submitting Special Issue No. 2 with its definition of notice therewith; because the trial court erred in submitting to the jury Special Issue No. 4 regarding idem sonans of S. H. Wells and S. H. Wills; because the trial court refused to submit their Special Requested Issue No. 'A' and the requested instruction regarding idem sonans and ancient instruments.

By their 15th point they contend that this case should be reversed because they proved that they had fee simple and superior title to the lands in controversy, and were entitled to recovery and judgment in their favor on the strength of their own title.

By their 16th, 17th, 18th, and 19th points they say the case should be reversed because the appellees on their burden of proof failed to prove title in favor of appellees; because the trial court erred in allowing the introduction in evidence of the deed from James H. Webb to Joseph Adams, dated August 12, 1872, filed April 2, 1934; because appellees on their burden of proof failed to prove title in themselves as the purported successors of Joseph Adams; because appellees on their burden of proof failed to prove title in themselves as the purported heirs or successors of S. H. Wills.

We think the determination of this appeal is found in the finding of the jury that S. H. Wells, the grantor in the deed to J. B....