Kimball v. Houston Oil Co. of Texas

• Decision Date: 13 February 1907
• Citation: 99 S.W. 852
• Court: Texas Supreme Court
• Parties: KIMBALL et al. v. HOUSTON OIL CO. OF TEXAS et al.

99 S.W. 852

KIMBALL et al. v. HOUSTON OIL CO. OF TEXAS et al.

Supreme Court of Texas.

February 13, 1907.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Walter B. Kimball and others against the Houston Oil Company of Texas and others. From a judgment of the Court of Civil Appeals (94 S. W. 423) affirming a judgment of the trial court, plaintiffs bring error. Reversed and remanded.

E. E. Easterling, J. D. Martin, S. M. Johnson, and Presley K. Ewing, for plaintiffs in error. Denman, Franklin & McGown and Lanier & Martin, for defendants in error.

WILLIAMS, J.

This action was brought by the plaintiffs in error, in trespass to try title, to recover of defendants in error the league of land granted to O. C. Nelson. It is to be decided upon the findings of fact and conclusions of law filed by the district judge, duly excepted to; there being no statement of facts in the record. The findings and conclusions are as follows:

"(1) That the league of land in controversy was granted to O. C. Nelson by the Mexican government on August 18, 1835. (2) That both parties to this suit claim the league of land under a deed from O. C. Nelson, the common source. (3) That defendants claim under, and introduced in evidence, warranty deed from O. C. Nelson to David Brown, executed on November 28, 1837, reciting a consideration of $1,000 paid, acknowledged before E. O. Legrande, chief justice and ex officio notary public of San Augustine county, on same date, and recorded in Menard county records on 16th day of March, 1842, and in Hardin county records on 28th day of February, 1859. (4) That defendants introduced in evidence a regular chain of title by mesne conveyances of the league down to themselves, connecting themselves with the above and foregoing deed from Nelson to Brown. (5) Plaintiffs claim under, and introduced in evidence, a general warranty deed from O. C. Nelson to Isam Parmer, executed on the 13th day of March, 1838, reciting a consideration of $1,200 paid, acknowledged before E. O. Legrande, chief justice and ex officio notary public of San Augustine county, Tex., same date, and recorded in Menard county records February 23, 1842, and a certified copy from said records recorded in Hardin county August 10, 1901. (6) That plaintiffs next introduced in evidence a regular chain of title by mesne conveyances of the league down to Timothy Kimball, connecting said Kimball with the above and foregoing deed to Isam Parmer; the deed to Timothy Kimball being dated the 13th day of April, 1850. (7) That plaintiffs are the heirs of Timothy Kimball, deceased. (8) That the plaintiffs failed to establish by credible testimony that Isam Parmer paid a valuable consideration for the land. (9) That no actual notice was shown by the evidence to have been given Isam Parmer, at the date of his purchase from O. C. Nelson, of the existence of the deed from O. C. Nelson to David Brown.

"Conclusions of Law: I find, as conclusions of law: (1) That there being no proof of the payment of the purchase money by Isam Parmer from a credible source, or that he or his vendees purchased without notice of the prior deed from Nelson to Brown, and he being a junior purchaser, the plaintiffs acquired no title to the land under said deed as against the defendants and those under whom they claim, who hold and claim title under the elder deed from O. C. Nelson to David Brown. (2) That, as O. C. Nelson was the common grantor from which both parties deraign their title, and as his prior deed to David Brown was of record at the time when Timothy Kimball purchased the land and acquired the Isam Parmer title, he had constructive notice of the title held by mesne conveyances from and under David Brown, and therefore he and those claiming under him acquired no title to the land, as against the defendants and those under whom they claim, who held and claim title under the elder deed from O. C. Nelson to David Brown."

It is the contention of plaintiffs that the district judge and the Court of Civil Appeals erred in holding that it was incumbent upon them to prove that Isam Parmer, the junior purchaser of the land in controversy, paid for it a valuable consideration and took without notice of the prior unrecorded deed to David Brown. Besides controverting this proposition, the defendants in error urge that this question does not arise in the present state of the record, because, they say, there being no statement of facts, the court should presume, in favor of the judgment, that every fact essential to its correctness was proved. This is the rule where there is neither statement of facts nor findings of the trial judge; but it is not applicable here, because the law authorizes an appeal upon such findings alone, and generally entitles the appellant, who has properly excepted to them, to have the correctness of the legal conclusions on which the judgment rests tested by the facts stated as their basis. Continental Ins. Co. v. Milliken, 64 Tex. 46; Chance v. Branch, 58 Tex. 490; Cousins v. Grey, 60 Tex. 346.

It may sometimes happen that findings omit any mention of a fact, proof of which would be essential to the correctness of the judgment, and that, in the absence of anything said about it, such fact should be presumed, and we are not to be understood as holding that such findings are to be treated as special verdicts were formerly treated and required to state affirmatively every fact necessary to support the judgment. Thomas v. Quarles, 64 Tex. 493. However that may be, it is apparent that in this case the trial judge stated affirmatively the facts and the state of the evidence from which he drew his conclusions of law, and held that the junior must be regarded as inferior to the senior deed, in the absence of proof that the last purchaser paid value and bought without notice. It cannot be presumed, in view of the express statements made, that there was proof of other record or notice or want of consideration than such as is mentioned. The case must therefore be decided, as the courts below decided it, by determining whether or not the burden was upon the plaintiffs to prove the facts referred to in order to make the second deed prevail over the first. That this question would have to be answered affirmatively, had it arisen under the registration law of 1840, or any of the later statutes, is settled beyond question by many decisions of this court. Watkins v. Edwards, 23 Tex. 443; Hawley v. Bullock, 29 Tex. 216; Rogers v. Pettus, 80 Tex. 425, 15 S. W. 1093. But the relative merits of the two titles depend upon the law of 1836, in force when both of the deeds were executed, the language of which differed very materially from that of the subsequent statutes. It provided, in section 40, that: "No deed * * * shall take effect as regards the interests and rights of third parties, until the same shall have been duly proven and presented to the court, as required by this act, for the recording of land titles." Hart. Dig. art. 2757. While the act of 1840 provided that such instruments, unless recorded, should not "be good against a purchaser for valuable consideration not having notice thereof, nor any creditor"; and, further, that they should "be void as to all creditors and subsequent purchasers for valuable consideration without notice, * * * but * * * as between the parties and their heirs, and, as to all subsequent purchasers, with notice thereof, or without valuable consideration," shall nevertheless be valid and binding. Id. arts. 2765, 2767. All of the decisions relied on by the defendants were made in cases in which the rights of the parties under the conflicting deeds were determined by the law of 1840. In most of them both of the deeds were executed after that law took effect. In Johnson v. Newman, 43 Tex. 628, the contracts in which the rights of the two claimants originated were executed while the act of 1836 was in force; but they created only equities, and the legal title vested in the second...