Portman v. Earnhart

• Decision Date: 30 December 1960
• Docket Number: No. 15753,15753
• Citation: 343 S.W.2d 294
• Parties: Leo PORTMAN, Appellant, v. Earnest L. EARNHART et al., Appellees.
• Court: Texas Court of Appeals

Page 294

343 S.W.2d 294

Leo PORTMAN, Appellant, v. Earnest L. EARNHART et al., Appellees.

No. 15753.

Court of Civil Appeals of Texas, Dallas.

Dec. 30, 1960.

Rehearing Denied Feb. 17, 1961.

Johnson, Guthrie & Stanfield, Dallas, and John Atchison, Gainsville, for appellant.

Howell, Freels, Elliott & Nall and Joe A. Keith, Sherman, for appellees.

THOMAS, Justice.

This case involves the title to one-fourth of the minerals in and under a 65.25 acre tract of land in the F. M. Puryear Survey in Grayson County, Texas, which appellant Portman claims by virtue of a mineral deed from T. A. Key. Key's claim of title to said minerals rested on a mineral deed from S. F. Earl, a former fee owner, which deed was unrecorded in Grayson County for almost seventeen (17) years. It is our opinion that the judgment awarding title to the minerals in controversy to the appellees who had acquired the tract as innocent purchasers for value during the seventeen years the mineral deed from Earl to Key was not of record in Grayson County, and to their grantees who have intervened herein, should be affirmed.

Appellees, Earnest L. Earnhart and wife, and O. D. Meek and wife, as plaintiffs, brought suit against appellant Leo Portman who resides in the State of Oklahoma, in trespass to try title to an undivided interest in and to the oil, gas and other minerals under the 65.25 acre tract described by metes and bounds in the petition. As a second cause of action, appellees plead their chain of title and alleged that the mineral deed purporting to convey to appellant, Portman, an undivided one-fourth interest in the oil, gas and other minerals in and to said land, as well as the deed from the former owner of the tract, S. F. Earl, conveying such an undivided interest to T. A. Key, appellant's grantor, both constituted clouds on the title of the appellees and should be cancelled and removed.

Appellant Portman answered with a plea of not guilty and specially disclaimed all rights, title and interest in the surface estate of said 65.25 acres of land, but alleged that he has been the owner of an undivided one-fourth interest in all of the minerals ever since they were conveyed to him by T. A. Key by deed dated July 20, 1937.

Harvey M. Gandy, Ralph Elliott and Rayburn Nall intervened alleging that they have an interest in the minerals by virtue of certain mineral deeds from appellees. They adopted the allegations and the prayers of appellees.

A jury having been waived, the case was tried to the court. Judgment was rendered that the appellees and the intervenors recovered the title to the undivided interest in and to the oil, gas and other minerals involved in the proportions sued for. It was further ordered, adjudged and decreed that the mineral deed to appellant's grantor, T. A. Key, as well as the mineral deed from T. A. Key to appellant, under which he claims, be cancelled and removed as clouds upon the title of appellees and intervenors.

No findings of fact were filed, and none were requested. Therefore, the judgment implies that the trial judge found, from a preponderance of the evidence, the facts necessary to support the judgment. The judgment will not be disturbed on appeal provided there was evidence to support such findings. O'Ferral v. Coolidge, 149 Tex. 61, 228 S.W.2d 146.

Appellees' chain of title from the agreed common source, J. W. Carey and wife, is as follows:

(1) General warranty deed from the Careys dated October 5, 1934, recorded October 8, 1934, conveying the 65.25 acres of land involved to S. F. Earl.

(2) Three (3) mineral deeds from S. F. Earl and wife, all recorded on December 7, 1937, as follows: (a) to J. N. Martin, dated July 20, 1937 conveying 1/8th of the minerals in and under the 65.25 acre tract; (b) to F. C. Blagg, dated July 20, 1937, conveying an undivided 1/8th of the minerals in and under said tract; (c) to F. C. Blagg, dated July 21, 1937, conveying 3/13ths of the minerals in and under said tract. The mineral interests conveyed by the three deeds just listed are not involved herein in any respect.

(3) General warranty deed from S. F. Earl and wife, dated September 11, 1944, recorded September 12, 1944, conveying the 65.25 acres to W. A. Mills. There is no reservation or exception of minerals in this deed.

(4) General warranty deed dated April 30, 1948, recorded May 24, 1948, from W. A. Mills and wife, conveying the tract to appellee O. D. Meek. Again there is no reservation or exception of any minerals.

(5) A correction deed from J. W. Carey and wife, dated December 6, 1950, conveying the 65.25 acre tract to O. D. Meek. This deed was given to supply a missing call in the description of the tract used in the above mentioned warranty deeds. The defect in the description was not fatal and no point is here made in regard thereto.

(6) Mineral deed dated May 20, 1951, from O. D. Meek and wife, conveying to S. W. Sims 20/65.25ths interests in all of the minerals in and under the 65.25 acre tract. The mineral interest conveyed by the latter deed also is not involved here in any respect.

(7) General warranty deed dated September 5, 1952, from O. D. Meek and wife, conveying the 65.25 acre tract to appellee Earnest L. Earnhart. At the end of the metes and bounds description of the land as described in the granting clause the following words appear: 'containing 65.25 acres of land, less the minerals heretorore severed, and sold off.'

The chain of title of appellant, Portman, emanates from said S. F. Earl as follows:

(A) Mineral deed dated July 17, 1937, from S. F. Earl conveying to T. A. Key 16.31/65.25ths (being 1/4th) interest in and to all the oil, gas and other minerals in and under a tract of land situated in Grayson County, Texas, and being the 65.25 acres involved herein. This deed was filed for record on July 22, 1937, in Cooke County, Texas. A certified copy of that deed was filed for record on the 6th day of February, 1954, in the office of the County Clerk of Grayson County, Texas. It is the failure to record this mineral deed in Grayson County for almost seventeen (17) years that caused this suit.

(B) Mineral deed dated July 20, 1937, executed by T. A. Key, conveying to Leo Portman an undivided 16.31/65.25ths (being 1/4th) interest in and to all the oil, gas and other minerals in and under and that may be produced from the 65.25 acre tract involved herein. This mineral deed was recorded in Grayson County on July 22, 1937. It gave the residence of T. A. Key as Cooke County, Texas, but made no reference as to the residence of the grantee, Leo Portman. The acknowledgment of the grantor Key was taken by F. C. Blagg, a Notary Public in and for Cooke County, Texas. No reference is made in this deed as to the source of the title which T. A. Key had acquired in the minerals in the 65.25 acre tract being conveyed by him to appellant.

Appellant's single point of appeal is as follows:

'1. The undisputed evidence establishes as a matter of law that Earnhart took the conveyance of the 65.25 acres in question from Meek with knowledge of and subject to a mineral interest of 16.31/65.25 outstanding in Leo Portman.'

The controlling questions in this case are:

(1) Did appellee Meek, when he acquired title to the 65.25 acre tract from Mills have notice through Instrument B above that 1/4 of the minerals in the tract had been conveyed to T. A. Key by unrecorded Instrument A?

(2) Did the appellant Earnhart acquire the land with notice of the unrecorded mineral deed?

It is not disputed that both appellees Meek and Earnhart had paid fair value for the tract. W. A. Mills, Meek's grantor, was deceased at the time of the trial, and there is no showing as to whether he was an innocent purchaser from Earl.

Notice in law is of two kinds--actual and constructive. 'The law is thoroughly settled in this state that, while a purchaser is bound with constructive notice of all recorded instruments lying within his chain of title, the record of a deed or instrument lying outside of his chain of title imports no notice to him.' Brown v. Ackerman, Tex.Com.App., 17 S.W.2d 771 (Syl. 1). Therefore, it is conceded that the record of Instrument B, the mineral deed from Key to appellant, imported no constructive notice to any party hereto, because of its lying entirely outside of appellees' chain of title.

'In common parlance 'actual notice' generally consists in express information of a fact, but in law the term is more comprehensive. In law whatever fairly puts a person on inquiry is sufficient notice, where the means of knowledge are at hand, which if pursued by the proper inquiry the full truth might have been ascertained. Means of knowledge with the duty of using them are in equity equivalent to knowledge itself. Where there is a duty of finding out and knowing, negligent ignorance has the same effect in law as actual knowledge. So that, in legal parlance, actual knowledge embraces those things of which the one sought to be charged has express information, and likewise those things which a reasonably diligent inquiry and exercise of the means of information at hand would have disclosed. Actual notice is always a question of fact.' Hexter v. Pratt, Tex.Com.App., 10 S.W.2d 692, 693 (Syl. 2).

"Actual notice' literally means express or positive personal information or...