Loomis v. Cobb

• Decision Date: 05 June 1913
• Citation: 159 S.W. 305
• Parties: LOOMIS et al. v. COBB.
• Court: Texas Court of Appeals

159 S.W. 305

LOOMIS et al. v. COBB.

Court of Civil Appeals of Texas. El Paso.

June 5, 1913.

Rehearing Denied June 26, 1913.

Appeal from District Court, El Paso County; A. M. Walthall, Judge.

Trespass to try title by Zach Lamar Cobb against Laura A. Loomis and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Loomis & Knollenberg, of El Paso, for appellants. Zach Lamar Cobb, of El Paso, pro se.

HIGGINS, J.

Appellee Cobb brought this action in trespass to try title against the appellants Laura A. Loomis, A. M. Loomis, R. W. Loomis, Marie L. Loomis, Pansy L. Latta, W. B. Latta, Annie L. Webb, and M. H. Webb to recover survey No. 154, block 1, of the San Elizario grant, containing about 61 acres. The case was tried before the court upon agreed facts, and judgment rendered in appellee's favor.

We will not undertake to set out in full the statement of the agreed facts, but will condense the same, quoting therefrom verbatim only when it appears advisable to do so.

The premises in controversy were owned by the town of San Elizario and by deed dated March 14, 1882, the town, acting by its mayor, G. N. Garcia, conveyed the same to Jesus Gutierres. In the deed it was recited that it was executed "by virtue of authority vested in me as such mayor, and in accordance with the ordinance of the town council of the town of San Elizario entitled `An ordinance to provide for surveying, adjusting and defining the boundaries of private land grants within the corporate limits of the town of San Elizario, Texas, and to provide for the division and granting of the unappropriated public lands belonging to the corporation of San Elizario, among the inhabitants thereof,' passed and approved on June 20, 1881, in consideration of one dollar, to me paid by Jesus Gutierres, and he having complied with the provisions and accepted the conditions of the above act, do grant, sell and convey," etc.

The ordinance referred to in the above-mentioned deed, among other things, provided that, in the division and granting of the unappropriated public lands belonging to the corporation among the inhabitants thereof, entire surveys should be granted to married men, and to single men there should only be granted undivided one-half interests in surveys; that is to say, entire surveys should be conveyed to married men, and in cases of single men a survey should be conveyed to them jointly. The ordinance above noted, at the date the agreement with regard to the facts was entered into, was lost or destroyed and had been lost or destroyed for many years, and its whereabouts were unknown, and whether or not it is now in existence is unknown, and such fact has been unknown for many years. The corporation of San Elizario was dissolved in 1885 and the ordinance, together with the other archives of the corporation, was delivered for safe-keeping to the county clerk of El Paso county, and no one knows what became of the ordinance after that time. Prior to the execution of above-mentioned deed, Gutierres was married to Dolores Bustillos, and she was living with him as his wife at the time of the execution and delivery of said deed. On March 3, 1887, Gutierres by deed of that date conveyed said premises to Loretto Alarcon, which deed was recorded in the El Paso county records, and by deed dated March 8, 1887, recorded March 10, 1887, Loretto Alarcon, joined by her husband, Martin Alarcon, conveyed the premises to A. M. Loomis. A. M. Loomis died intestate in 1901, leaving as his heirs his wife, Laura A. Loomis, and children, A. M. Loomis, Jr., R. C. Loomis, R. W. Loomis, Pansy L. Latta, wife of W. B. Latta, Annie L. Webb, wife of M. H. Webb. R. C. Loomis is dead and his widow, Marie Loomis, is his sole heir. R. C. Loomis, by deed dated January 5, 1906, conveyed his interest in the premises to R. W. Loomis in consideration of $1,000, and on February 3, 1906, R. W. Loomis conveyed the premises to Laura A. Loomis in consideration of $1,000, and on March 13th Mrs. Laura A. Loomis, Mrs. Webb, and Mrs. Latta, the last two named joined by their respective husbands, conveyed the premises to A. M. Loomis, R. C. Loomis, and R. W. Loomis in consideration of the sum of $300. On April 29, 1908, A. M. Loomis, Jr., conveyed the same to Ralph W. Loomis in consideration of $1,150, and on December 17, 1909, Ralph W. and Marie Loomis conveyed to Laura A. Loomis, Mrs. Latta, and Mrs. Webb the premises in controversy for a valuable consideration. The agreement stipulates: "That the defendants herein are bona fide purchasers of said survey, for value, and without notice of any right, title, or interest in said Dolores Alarcon de Gutierres, and her heirs, except the notice charged, if any be charged, to them by the said deed from San Elizario to said Gutierres, and the ordinance therein recited, and that they and those under whom they claim have rendered said property for taxation and paid the taxes thereon from the date of the purchase thereof by the said A. M. Loomis."

Dolores Gutierres died about April 15, 1886. There was no issue of the marriage of the said Jesus Gutierres and Dolores, but Dolores had children by a prior marriage with one Bustillos, and these children survived her. They did not live at the home of Jesus Gutierres. The said children and heirs of Dolores, in the year 1909, conveyed to appellee Cobb an undivided one-half interest in the premises in controversy. The children of Dolores were of age at the time of her death. The children and heirs of Dolores paid no taxes on the premises, nor did they render the same for taxation prior to the date the same was purchased by Cobb. The agreement states that Cobb was a bona fide purchaser of said one-half interest from the heirs of Dolores, but it further states that he bought with full notice of the various deeds under which the appellants claim and of the fact that they claimed to own the entire survey in fee-simple title. It is further agreed that appellants had no actual notice of the claim of the said Dolores until the same was acquired by Cobb. Appellants A. M. Loomis, Jr., and M. H. Webb knew Jesus Gutierres and knew at the time of their purchase that he had no children. There were no community debts of Gutierres and his wife Dolores. Garcia, the mayor of San Elizario, who executed the deed to Gutierres, is living, and ever since the date of the execution of the deed has lived in the town of San Elizario in El Paso county and is familiar with the terms of the ordinance recited in the deed. "The defendants in this case who hold the title through and under A. M. Loomis, now deceased, as aforesaid, to whom the Alarcons executed the deed aforesaid, at the time and prior to their purchases hereinbefore listed and described, made diligent inquiry and search for said ordinance, and were informed prior to their several purchases that said ordinance was lost or destroyed, and had been so lost and destroyed many years prior to their said purchase. No further inquiry or search was made by defendants." The record does not disclose the date upon which Cobb filed his suit, but we take it that it was some time subsequent to the date of his deed from the heirs of Dolores, and the agreed facts state that this deed was obtained by him in the year 1909.

As his findings of fact the trial court adopted the agreed statement of facts. His conclusions of law are quite lengthy, and it would serve no useful purpose to set the same out in full here. Briefly stated, he found that appellants were constructively charged with notice of the contents of the ordinance referred to in the deed to Gutierres, and that the ordinance itself disclosed that married men only were qualified purchasers of entire surveys, and therefore a purchaser with knowledge of the contents of the ordinance would be charged with notice of the fact that Gutierres was a married man; that under the authority of Hill v. Moore, 85 Tex. 339, 19 S. W. 162, a purchaser would be charged with knowledge of the equitable interest owned in the land by the children of the deceased wife; that, while the ordinance in question was lost, yet the fact that the title of the appellants was deraigned under the ordinance placed them upon inquiry in regard to its contents, and, in order to sustain the plea that they were innocent purchasers for value, the burden was upon them to show that they had made proper inquiry and investigation in order to rebut the constructive notice furnished by the ordinance, and, there being no evidence to show that they exercised any diligence whatever to ascertain the contents of the ordinance, they therefore could not be protected as innocent purchasers. He further found that the issues of limitation and stale demand pleaded by appellants were not raised by the agreed facts.

The first assignment complains of the overruling of a general demurrer to the petition. The petition was in the ordinary form, appropriate in actions of this character, and the demurrer was properly overruled. The remaining assignments will not be discussed in their order or in detail, but we will confine ourselves to what is conceived to be the controlling questions in the case.

The premises in controversy having been conveyed to Jesus Gutierres by the town of San Elizario, no beneficial interest therein upon the face of the deed appearing to be vested in the wife, Dolores, her interest in same was equitable. The entire legal title was vested in the husband, and her heirs by the former husband inherited no such interest in the land as would defeat the rights of an innocent purchaser for value from Gutierres after her death. Patty v. Middleton, 82 Tex. 586, 17 S. W. 909; Hensley v. Lewis, 82 Tex. 595, 17 S. W. 913; Woodburn v. Texas, etc., 153 S. W. 365; West v. Keeton, 17 Tex. Civ. App. 139, 42 S. W. 1034; Brackenridge v. Rice, 30 S. W. 588; Daniel v. Mason, 90 Tex. 244, 38 S. W. 161, 59 Am. St. Rep. 815; Mangum v. White, 16 Tex. Civ. App. 254, 41 S. W. 80; Malry v....