McGowen v. Montgomery

• Decision Date: 03 March 1952
• Docket Number: No. 6212,6212
• Parties: McGOWEN v. MONTGOMERY.
• Court: Texas Court of Appeals

Page 789

248 S.W.2d 789

McGOWEN v. MONTGOMERY.

No. 6212.

Court of Civil Appeals of Texas, Amarillo.

March 3, 1952.

L. H. Welch, Breckenridge, for appellant.

T. Wade Potter Littlefield, for appellee.

MARTIN, Justice.

On September 23, 1924, Clarence Halsell Holmes and husband conveyed a tract of land in Lamb County, Texas, to appellant, D. H. McGowen, with a reservation to grantors of 1/16th of the royalty on all oil, gas and minerals. On May 5, 1925, appellant conveyed this same tract of land, subject to the royalty reservation, to W. B. Smith. Smith being desirous of clearing his title of the royalty reservation, on January 23, 1928, obtained a quitclaim deed to the royalty interest from Clarence Halsell Holmes and husband, but through error and mistake of the grantors, D. H. McGowen was named as grantee in the deed. W. B. Smith received and filed this deed of record without any knowledge of the error of Clarence Halsell Holmes in naming D. H. McGowen as grantee in the deed. On February 25, 1943, W. B. Smith conveyed the same tract of land to the appellee, H. B. Montgomery, by general warranty deed. Montgomery did not have the title examined at the time and knew nothing of the McGowen deed until on or about January 1, 1951, when he had an opportunity to lease the land for oil development and an examination of the title revealed the quitclim deed to D. H. McGowen. A quitclim deed to the royalty interest was sent to D. H. McGowen for execution and return of the same, but McGowen refused to sign the deed and claimed ownership of the royalty interest. Appellee, H. B. Montgomery, sued appellant, D. H. McGowen, in trespass to try title to recover the royalty interest and also pleaded in the alternative for reformation of the deed. Appellee also pleaded that appellant held title to the royalty interest in trust for the appellee, and also sought in the alternative a removal of the quitclaim deed as a cloud on appellee's title.

The cause was tried before the court and judgment rendered for H. B. Montgomery for recovery of title and possession of the tract of land and removal of could on plaintiff's title to the land and premises. The appellant, D. H. McGowen, perfected an appeal and sets forth in his brief seventeen points of error. Quoting these points of error would unnecessarily lengthen this opinion without adding to the clarity of the issues here. The points assert that the pleadings and evidence do not support the judgment, that the suit is barred by the four and ten-year statute of limitation and also that the various findings of fact and conclusions of law by the trial court are not supported by the pleadings and the evidence.

Ti is true that there is some divergence in the testimony as to whether W. B. Smith had knowledge of Clarence Halsell Holmes naming McGowen as grantee in the quitclaim deed to the royalty interest, but other than this issue all the evidence of any probative force supports appellee's cause. The testimony of D. H. McGowen, in conjunction with the dates of the various deeds, shows that he went out of possession of this land in 1925, approximately three years before Smith obtained the quitclaim deed, and that he had no further interest in such land and knew nothing of the royalty deed until 1951, when appellee sent him the quitclaim deed. Smith and appellee Montgomery, as shown by appellant on cross examination, went into possession of said lands under their respective deeds and their possession was continuous to the date of the trial. Upon these and other facts in evidence, by way of passing on appellant's points of error and phases thereof in so far as the same assert that the trial court's findings of fact are not supported by the evidence in the cause, it is ruled that all such findings of fact by the trial court are supported by a preponderance of the evidence and are binding on this court. Cavanaugh v. Davis, Tex.Sup., 235 S.W.2d 972, syl. 6-8. The trial court's conclusions of law are supported by the rulings hereinafter detailed, which rulings will, in conjunction with the one above, constitute an adjudication of the issues raised by the appellant on this appeal.

The next issue to be determined under appellant's points is whether Article 5529, Vernon's Annotated Texas Civil Statutes, applies as to the issue of limitation pleaded in the cause. The pertinent language of the statute is as follows: 'Every action other tham for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years * * *.' (Italics added). The many authorities on this issue are here recognized and the principal issue involved is whether this action is one for the recovery of real estate for if it is Article 5529 does not apply. 'It is a well settled general rule that if one person obtains the legal title to property, not only by fraud, or by violation of confidence of fiduciary relations, but in any other unconscientious manner, so that he cannot equitably retain the property which really belongs to another, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner.' 26 R.C.L. Sec. 83, p. 1236, and Simmons v. Wilson, TexCiv.App., 216 S.W.2d 847, syl. 1-2-3. 'the Texas cases make a distinction between equitable title and equitable right. * * * It seems that the distinction made by the courts between equitable title and equitable right is essentially that between a right in rem and a right in personam; that is borne out by the generally accepted definitions or rights in rem and in personam. * * * the beneficiary of a constructive trust has an equitable title; therefore, it is consistent with the general distinction to hold that the four-year limitation does not apply to a suit to impress land with a constructive trust.' 18 T.L.R. 235. Appellee was the beneficiary of a constructive trust, under the facts shown in this cause, and therefore this is a suit for the recovery of real estate under the authorities and Article 5529 does not apply and appellant's points on such issue are overruled. Biggs v. Poling, Tex.Civ.App., 134 S.W.2d 801, syl. 2-3-4; Carl v. Settegast, Tex.Com.App., 237 S.W. 238, syl. 2-3; Howard v. Young, Tex.Civ.App., 210 S.W.2d 241, syl. 4; Binford v. Snyder, 144 Tex. 134, 189 S.W.2d 471.

The authorities cited in the above paragraph likewise hold that under the ordinary formal averments in trespass to try title, plaintiff can recover on equitable title based on a constructive trust without specially pleading such title. Appellant's points in so far as they seek to question the sufficiency of appellee's pleading in the cause are without merit and are overruled.

Appellant also presents the ten-year statute of limitation as a defense to appellee's cause of action. Under this point the cause of action must be considered in the light of Article 5510, Vernon's Annotated Civil Statutes, the applicable statute as to limitation of a right of action for the recovery of lands.

On the facts in the cause as briefly outlined in the opening paragraph of this opinion, the appellee's cause of action was not barred by Article 5510, the tenyear statute of limitation. First, the appellee was ignorant of the mistake in the deed and of his rights until the fall of 1950, or on or about the...