Long v. Knox

• Decision Date: 07 March 1956
• Docket Number: No. A-5297,A-5297
• Citation: 291 S.W.2d 292,155 Tex. 581
• Parties: Betty Knox LONG et vir, Petitioners, v. Harryett H. KNOX et al., Respondents.
• Court: Texas Supreme Court

Page 292

291 S.W.2d 292

155 Tex. 581

Betty Knox LONG et vir, Petitioners, v. Harryett H. KNOX et al., Respondents.

No. A-5297.

Supreme Court of Texas.

March 7, 1956.

Rehearing Denied May 30, 1956.

Wynne & Wynne, William A. McKenzie and Clarence A. Abramson, Dallas, Harrington & Harrington, Longview, Grimes & Grimes, Washington, N. C., for petitioners.

Dan Moody, Austin, Hurst & Burke, Longview, Fulton, Hancock & McClain, Gilmer, for respondents.

CULVER, Justice.

This suit was brought by petitioner, Betty Knox Long, as the child and sole heir of W. C. Knox and as administratrix of his estate in form of trespass to try title seeking to establish that certain oil properties standing in the name of respondent, Harryett H. Knox, surviving wife of W. C. Knox, were in fact community property of Knox and wife rather than the separate property of the wife.

W. C. Knox and Harryett H. Knox were married in 1929. Each had children by former marriages, but none of this union. In 1940 and 1941 there were conveyed to Mrs. Knox as her separate property and estate oil and gas leases on Lots 9 and 10, Hawkins Townsite, and to Mrs. Knox a mineral deed (but without the separate property recitation) conveying one-half interest in the oil, gas and other minerals under Lot 10. A similar deed conveyed to W. C. Holcombe, the son of Mrs. Harryett H. Knox by a former marriage, a one-half interest in the oil, gas and other minerals in place under Lot 9. Thereafter, Mrs. Knox and W. C. Holcombe reconveyed to the original grantor, Preddy, one quarter of the mineral interest under Lots 9 and 10.

The jury found substantially as follows: (1) That the consideration for the oil and gas leases and mineral interests on and under Lots 9 and 10 was paid from the community funds; (2) that Holcombe at all times held title to the royalty interest under Lot 9 for Harryett H. Knox; (3) that Harryett H. Knox directed that the lease and mineral deeds be placed in her name as her separate property and estate; (4) that W. C. Knox did not cause the oil and gas leases or mineral interest to be made to Harryett H. Knox as her separate estate, with the intention that the property should belong separately to her; (5) that the oil and gas leases were taken in the name of Harryett H. Knox as her separate property with the knowledge and consent of W. C. Knox; (6) that after Knox had gained knowledge that the oil and gas leases were placed in the name of Harryett H. Knox as her separate property he did not agree and acquiesce that it was her separate property; (7) that W. C. Knox knew of and affirmed the taking of the oil and gas leases and the minerals under said lots in the name of Harryett H. Knox as her separate property; (8) that W. C. Knox did know that his wife was holding the property involved in this suit as her separate property; (9) that after Knox gained knowledge that the mineral interest under Lots 9 and 10 was placed in the name of his wife that he did not agree and acquiesce that it was her separate property.

On this verdict the trial court awarded judgment for petitioner, holding the properties to be community and awarding to her an undivided one-half in the leases and mineral interest in both Lots 9 and 10. The Court of Civil Appeals reversed and rendered for the respondent, 277 S.W.2d 951. The holding is grounded on the principles of judicial estoppel and sound public policy. The facts are these:

A creditor having obtained a judgment against W. C. Knox sought to collect by having execution issued and levy made on the oil and gas leasehold on Lots 9 and 10 and the mineral interest in Lot 10 in the Hawkins Townsite which had theretofore been conveyed to Mrs. Knox, the title to all of which stood in her name. Mrs. Knox, joined by her husband, W. C. Knox, filed suit in the District Court of Gregg County to enjoin this execution and levy asserting that the creditors' judgment was void and that the properties belonged solely to Mrs. Knox as her separate estate and that Knox had no interest whatsoever in the property and further that the property had been purchased with the separate funds of Mrs. Knox. The jurat reading: 'We have carefully read each and every allegation contained in the plaintiff's original petition and all of said allegations are true and correct,' was subscribed to by Harryett H. Knox and W. C. Knox. The district court issued its order temporarily restraining the sheriff from selling the property under execution. No hearing was had and no further order entered in the case except one of dismissal for want of prosecution. The creditor's attorney testified that after further conversation with Knox and his attorney, he came to the conclusion that he could not prevail and proceeded no further.

The Court of Civil Appeals held that Knox, having sworn in the injunction suit that the properties belonged to the separate estate of Mrs. Knox, that he owned no interest in them and thereby effectively preventing sale under execution and levy for the purpose of satisfying a judgment against him, would have been barred from asserting subsequently, in such an action as this, a contrary position and claiming that the properties were community and that he did own a one-half interest. The Court further held on the authority of our opinion in Knox v. Long, 152 Tex. 291, 257 S.W.2d 289, that the petitioner, Mrs. Long, claiming under her father, W. C. Knox, and being in privity with him is also barred from making the same claim.

Petitioners contend the Court of Civil Appeals erred for the following reasons: (1) that the injunction suit having been dismissed and no final judgment having been entered the petition became an abandoned pleading and that while abandoned pleadings may be considered in evidence they do not work an estoppel, (2) elements of judicial estoppel are not established in this case, (3) the petitioners were not cut off or barred from proving the true state of title to the property, (4) the Court of Civil Appeals erred in applying the rule of 'conveyance to defraud creditors' in this case.

Petitioners correctly assert that an admission against interest in an abandoned pleading may be used in evidence against the pleader, but is not conclusive. However, there was no abandonment of the petition in the injunction case. The petition was not amended.

The doctrine of judicial estoppel is not strictly speaking estoppel at all but arises from positive rules of procedure based on justice and sound public policy. It is to be distinguished from equitable estoppel based on inconsistency in judicial proceedings because the elements of reliance and injury essential to equitable estoppel need not be present. 'Under the doctrine of judicial estoppel, as distinguished from equitable estoppel by inconsistency, a party is estopped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary to the assertion sought to be made.' 31 C.J.S., Estoppel, § 121, p. 390; Grier v. Canada, 119 Tenn. 17, 107 S.W. 970; Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 313. It has likewise been held that it is not necessary that the party invoking this doctrine should have been a party to the former proceeding. Hatten Realty Co. v. Baylies, 42 Wyo. 69, 290 P. 561, 72 A.L.R. 587; Corder v. G. B. Sprouse & Co., 20 Tenn.App. 486, 100 S.W.2d 1001.

Although the injunction suit was dismissed and the restraining order expired, the purpose of the affiant was accomplished as thoroughly as if a judgment had been entered in favor of the plaintiffs in that suit. The creditor was convinced and abandoned further efforts. Knox gained the advantage of preventing the property from being sold. Having thus sworn under oath in this judicial proceeding that his wife owned the property in her separate right he would not be heard now to maintain a contrary position in the absence of proof that the averment was made inadvertently or by mistake or by fraud or duress. There was not only no proof of this character but rather the evidence shows conclusively that the affidavit was made voluntarily, with full knowledge of all the facts and with the intention to prevent satisfaction of the judgment against him. Kirby v. Fitzgerald, 126 Tex. 411, 89 S.W.2d 408; Railroad Commission v. Arkansas Fuel Oil Co., Tex.Civ.App., 148 S.W.2d 895, wr. ref.; Dellerman v. Mangold, Tex.Civ.App., 271 S.W.2d 720; Smith v. Chipley, 118 Tex. 415, 16 S.W.2d 269. Petitioners, to support their theory that judicial estoppel will not lie in this case, rely on certain cases which we will discuss.

In Koppelmann v. Koppelmann, 94 Tex. 40, 57 S.W. 570, 572, the husband had drawn a deed purporting to convey property to his children in anticipation of a suit by his wife for divorce. The right of the children to recover the land was denied for the reason that there had been no delivery and the execution of the deed was thus not completed. The court said that 'a bad intent cannot operate to pass title without the execution of the deed' and further 'but when, for want of the execution of the deed, the title has not passed out of the grantor, he is in no need of a decree restoring it. He protects himself, without the aid of the fraudulent agreement, by simply showing that he has not parted with his property.' On the other hand, the Court expressly holds that if the deed had been delivered the grantor would not have been allowed to defeat the children's title by showing that it was made without consideration for the purpose of defrauding creditors and the courts in that case will leave the parties where they find them.

The Court held in Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490, 504, 107 S.W.2d 564, 111 A.L.R. 1152, that the record owner would not be prevented from defending title, acquired from his grantor, under any available ground even though the grantor had assumed and maintained the position that there was a conflict between two surveys...