Pope v. Witherspoon

• Decision Date: 18 June 1921
• Docket Number: (No. 6488.)
• Citation: 231 S.W. 837
• Parties: POPE v. WITHERSPOON et al.
• Court: Texas Court of Appeals

231 S.W. 837

POPE v.WITHERSPOON et al.

(No. 6488.)

Court of Civil Appeals of Texas. San Antonio.

June 18, 1921.

Error from District Court, Nueces County; W. B. Hopkins, Judge.

Trespass to try title by W. C. Witherspoon against W. E. Pope and others. Judgment for plaintiff, and the named defendant brings error. Affirmed on rehearing.

G. R. Scott and Boone & Pope, all of Corpus Christi, for plaintiff in error.

E. B. Ward, of Corpus Christi, and Taliaferro, Cunningham & Moursund, of San Antonio, for defendant in error Witherspoon.

COBBS, J.

This is an action in the usual form of trespass to try title to lands.It was tried without a jury.Upon request of defendant, the court made special findings.There is also in the case a statement of facts.The court rendered judgment in favor of defendant in error for the land, and the first question raised here is that the trial court erred in finding that Mrs. H. M. King was the common source of title.As the court's findings are much in the nature of conclusions, we cannot clearly understand it without going to the statement of facts filed.Spearman v. Mims, 207 S. W. 574.

In trespass to try title, the burden is on the plaintiff to deraign his title from and under the sovereignty of the soil, unless there is a common source of title shown.The necessity in this case of showing title from the sovereign is attempted to be obviated by introducing an intervening common source, in the person of Mrs. H. M. King, to which all these claimants are alleged to go in lieu of the sovereign.Seearticle 7749 of the Revised Civil Statutes, providing that it shall not be necessary to deraign title beyond a common source, but sufficient to show by deeds a chain of title emanating from and under such source.Branch v. Deussen, 108 S. W. 164.

Defendant in error introduced muniments of title for the sole purpose of showing the common source, which it is contended did not describe the land in controversy.In regard to descriptions of lands, it is well settled that is certain which can be made certain.Bitner v. Land Co., 67 Tex. 342, 3 S. W. 301.

The court found that the common source of title was Mrs. H. M. King, who conveyed 20 acres out of section No. 50, lot No. 20, of the Flour Bluff and Encinal Farm and Garden tracts in Nueces county.

The petition describes section No. 50 and 20 acres out of section 50, lot No. 20, out of Flour Bluff and Encinal Farm and Garden tracts, and introduces the title, to wit: King to Timmins describes section 50, Encinal and Flour Bluff Farm and Garden tracts; Timmins to Witherspoon describes section 50, lot 19, of Flour Bluff and Encinal Farm and Garden tracts.And second one, from and to same parties, describes section 50, lot No. 20, of the Flour Bluff and Encinal Farm and Garden tract.

The main defense of petitioner was urged under the plea of "not guilty."The case was tried by the court without a jury, and judgment was rendered for defendant in error for the land.

To prove the common source of title, the defendant in error introduced a number of consecutive transfers to plaintiff in error, each of the deeds describing the land as being lands out of "Flour Bluff and Encinal Farm and Garden tracts."In the deed of King to Timmins are described various lots, but no section 50, lot 19, and no section 50, lot No. 20, and it is not described as "Flour Bluff and Encinal Farm," etc., but "Encinal and Flour Bluff Farm," etc.Then follow deeds from Timmins of the land as described in Mrs. King's deed.The lots conveyed are Nos. 19 and 20 out of section 50.

Looking to the instruments introduced, and reading the recitals, references, and descriptions therein, the only conclusion that can properly be reached is that the reference is to the same land and identifies it, and that the common source is established.Bateman v. Jackson, 45 S. W. 224;Echols v. Jacob Mercantile Co., 38 Tex. Civ. App. 65, 84 S. W. 1082;Edwards v. Smith, 71 Tex. 159, 9 S. W. 77;Minor v. Lumpkin et al., 29 S. W. 801;Malone v. Long, 128 Md. 377, 97 Atl. 643.It is immaterial that the descriptions of the deed and petition do not exactly correspond, if it is apparent that the same land is meant.Gray v. Kauffman, 82 Tex. 68, 17 S. W. 513.

This assignment is overruled.

The record further shows that Mrs. King retained in her deed to R. L. Timmins the vendor's lien and superior title to secure a part of the purchase money payable in two notes.She transferred the second of these notes to John Tod, together with the superior title to the land.This note was released by Tod to Timmins.Timmins conveyed lot No. 19 out of section 50 to C. G. Witherspoon, on the 17th day of April, 1907; also lot No. 20 out of section 50, April 26, 1907, to C. G. Witherspoon.Then Timmins, subsequent to Witherspoon's purchase, executed a deed of trust to C. W. Ogden, trustee for Mrs. King, to secure two notes for $11,126.91, each describing them as the purchase-money notes for the land given by Timmins to Mrs. King, filed for record January 17, 1907.Tod, who purchased note No. 1 through his agent, Drought, released to Timmins note No. 1 on June 11, 1909, and on July 7, 1909, a release to same note due Mrs. King was executed by Ogden, trustee.October 13, 1908, Timmins executed a deed of trust to J. D. Crenshaw, as trustee for Mrs. Bodet, to secure note for $3,000, reciting it was borrowed—

"for the purpose of paying balance of the purchase money which the above-mentioned vendor's lien was retained to secure, and it is agreed that Mrs. Sophia Bodet be subrogated to all rights and privileges of said vendor's lien."

It was properly filed November 14, 1908.Mrs. Bodet transferred this note and lien to Mrs. Lyle Malone for a valuable consideration, and it was filed for record February 4, 1910.On March 1, 1910, the property described in deed of trust was sold to satisfy note purchased by Mrs. Malone.On October 1, 1910, she sold same through her attorney to Thomas W. Dunlap, which deed was duly filed for record, and she also made to him, on February 17, 1911, her quitclaim deed, also duly filed for record.

On October 5, 1910, Timmins quitclaimed and released to Thomas W. Dunlap all the rights in the described property, and a number of other lots, being same land conveyed by Mrs. King to him.Dunlap sold to Brooks and Brooks sold to Stanfield, retaining vendor's lien.Dunlap sold half interest in the notes to Jess W. Taylor.Dunlap and Taylor brought foreclosure suit, which property, being sold at sheriff's sale, was purchased by Taylor, who sold to S. C. Ingram, and Ingram sold to W. E. Pope.

The chief defense was subrogation, presented under a plea of "not guilty."There were no special equitable defenses specially pleaded.Under the plea of "not guilty" any defense that defeats the recovery may be shown.That is because such a suit is possessory, and any bar that can be properly raised to defeat an entry may be interposed.But we know of no rule of pleading that will authorize a mere unforeclosed equity not properly pleaded, to be used under a plea of "not guilty" to defeat the recovery of the land by the true owner having the superior, paramount legal title under the common source, without an adequate pleading setting up and proving the supposed equities.Under a plea of "not guilty." the introduction generally of mere equities to establish claims of subrogation will not be entertained.SeeWilkin v. Owens & Bros., 102 Tex. 199, 114 S. W. 104, 115 S. W. 1174, 117 S. W. 425, 132 Am. St. Rep. 867, in which the court says:

"It is held distinctly in the case of Fuller v. O'Neil, 69 Tex. 349, that in order to assert an equity of subrogation in property that had been illegally sold the facts must be pleaded.We think this is a correct ruling, and was approved by this court in the case of Crow v. Fidler, 3 Tex. Civ. App. 582, and in Matthews v. Moses, 21 Tex. Civ. App. 496, in which applications were made to this court for writs of error and refused.See, also, Black v. Garner, 63 S. W. 918."

And further on in the same case, discussing Williams v. Wilson, 76 Tex. 69, 13 S. W. 69, the court says:

"Since in an action of trespass to try title a defendant without a plea may show any fact that will defeat the plaintiff's right to recover, since in making out their case they showed the lease and the purchase money that was paid for it, they were held not entitled to recover without tendering the consideration shown to have been paid their ancestor for the land.We think that case clearly distinguishable from this, in which the attempt is to subrogate the parties claiming under the purchase to a lien upon the lands for the purchase...