Runge v. Gilbough

• Decision Date: 03 May 1905
• Citation: 87 S.W. 832
• Parties: RUNGE v. GILBOUGH et al.
• Court: Texas Court of Appeals

87 S.W. 832

RUNGE v. GILBOUGH et al.

Court of Civil Appeals of Texas.

May 3, 1905.

On Rehearing, May 31, 1905.

Appeal from District Court, Tarrant County; J. W. Patterson, Judge.

Action by H. J. Runge against F. M. Gilbough and others. From a judgment for defendants, plaintiff appeals. Reversed and rendered.

Wm. J. Berne, for appellant. McLean & Scott, for appellees.

NEILL, J.

As originally instituted, this was a suit on purchase-money land notes, secured by vendor's lien expressly reserved in the deed. A personal judgment and foreclosure of the lien were asked against the maker, F. M. Gilbough, and a foreclosure against S. W. Hays and his wife, Louisa M. Hays, and M. W. Hampton, the other defendants. The notes being barred by limitation, all the defendants pleaded limitation of four years. Plaintiff then sued for the land in trespass to try title, on his superior title. All defendants except Gilbough then pleaded limitation of five years. To this plaintiff pleaded that said defendants had acquired title with notice of his lien and superior title, and that their possession of the land was not adverse to him. The court, who tried the case without a jury, rendered judgment that plaintiff take nothing by his suit, and that all the defendants go hence without day, and that the plaintiff pay all costs of suit, from which judgment plaintiff, Henry J. Runge, has appealed.

Conclusions of Fact.

The facts are undisputed, and are as follows:

(1) The plaintiff, Runge, acquired the land in controversy, which consists of two adjoining tracts (one of 97.4 acres and the other of 40 acres), situate in Tarrant county, by deed dated February 2, 1889, filed for record February 20, 1889, and duly recorded. This deed, on its face, showed that Runge resided in the city of Galveston, Galveston county, Tex. March 19, 1889, Runge owned said land in fee simple, and his title, from the state down to and including the deed to himself, was then duly of record in Tarrant county.

(2) On said March 19, 1889, in consideration of $350 in cash, and Gilbough's two notes of that date, for $525 each, due, respectively, in one and two years from date, Runge conveyed said land to Gilbough by warranty deed. This deed set out in full the contract of sale, contained a copy of each of said notes, showed the residence of both Runge and Gilbough, and expressly retained a vendor's lien to secure payment of same. Each of said notes also expressly retained a vendor's lien to secure its payment.

(3) Said deed from Runge was never put of record. Runge did not know of this fact until the filing of this suit.

(4) Upon the delivery of said deed, Runge put Gilbough in possession of the land.

(5) When said deed was executed, both parties thereto resided in the city of Galveston. Each has there resided continuously from that time to the present, and during that entire period Runge was a well-known business man of that city.

(6) Prior to maturity each of said notes was extended by Runge for one year. Gilbough paid to Runge the interest on the notes each year as it accrued, down to and including June 19, 1898. No interest has been paid since the last-mentioned date. The principal of neither note has been paid.

(7) At intervals, not further apart than a year, beginning in 1894 and ending in September, 1900, upon Runge demanding payment of the notes, and threatening suit and foreclosure thereon, Gilbough importuned him not to sue, stating that he (Gilbough) still owned the land, and that he was negotiating to sell it; that he had expectations that the negotiations would result in a sale, and on a sale being made he would pay the notes. The last time that these statements were made was in September, 1900. These statements were oral. Runge believed them, and did not learn that they were untrue until immediately prior to the institution of this suit; and, solely because of these statements and his belief in the truth of them Runge refrained from suit until the institution of the present one. Had these statements not been made, Runge would have sued on the notes and foreclosed the lien within four years from their due date.

(8) Prior to the institution of this suit, Runge had no knowledge that Gilbough had conveyed the land in controversy, or any part thereof, but believed, from the time that he conveyed to Gilbough down to immediately prior to the institution of this suit, that Gilbough had not conveyed it.

(9) Prior to the institution of this suit Runge did not know, nor did he have notice (except the notice, if any, charged to him by law by reason of the recording thereof), of the deeds from Gilbough down to defendants that are set out below in this statement.

(10) Prior to the institution of this suit Runge had no knowledge that any one was in possession of said land, other than Gilbough.

(11) October 30, 1894, Gilbough conveyed to Bailey, by warranty deed, the 97.4-acre tract conveyed to the former by Runge. Upon purchasing, Bailey immediately went into possession of the land. The deed to him was filed for record in Tarrant county September 19, 1895.

(12) October 31, 1895, Bailey conveyed to Louisa Hays, by metes and bounds, 17 acres of the tract conveyed to him by Gilbough, and also, in the same deed, by metes and bounds, conveyed to her the balance of said 97.4-acre tract.

(13) Upon execution and delivery of said deed, Louisa Hays went into possession of the land conveyed. The deed was filed for record October 28, 1896.

(14) December 15, 1896, Louisa Hays and husband, by quitclaim deed, reconveyed to Bailey the 80-acre tract out of the 97 acres that had been conveyed to her. This deed was filed for record December 16, 1896.

(15) October 24, 1896, Bailey conveyed to Tarlton Cox, by warranty deed, aforesaid 80 acres. The deed was filed for record October 26, 1896. Upon its delivery, Cox went into possession.

(16) December 30, 1896, Tarlton Cox conveyed to Wm. Cox, by warranty deed, said 80 acres. The deed was filed for record April 3, 1897. Wm. Cox went into possession upon the execution of the deed.

(17) January 8, 1902, Wm. Cox conveyed by warranty deed said 80 acres to Dunn. The deed was filed for record June 25, 1902. Dunn went into possession upon the execution of the deed.

(18) June 24, 1902, Dunn conveyed the 80 acres to S. W. Hays, husband of Louisa Hays, by warranty deed. The deed was filed for record June 24, 1902, and Dunn went into possession when the deed was executed.

(19) August 31, 1894, Gilbough conveyed to defendant Hampton, by warranty deed, the 40-acre tract conveyed by Runge to Gilbough. This deed was filed for record August 31, 1894. Hampton went into possession upon its execution.

(20) Each vendee in the chain of title from Gilbough to defendants, inclusive, as set out in this statement, was put in possession of the land that he bought from his immediate vendor by that vendor.

(21) For several years prior to the date of their respective purchases, as set out in this statement, Bailey and Hampton had rented from the railway agent at Crowley of the Gulf, Colorado & Santa Fé Railway Company, and during said period of time lived upon and occupied, the land that they respectively bought afterward, and paid to said agent the rents. Neither Bailey nor Hampton, when each one respectively bought, knew who owned the land that he bought, or knew or had heard of either Runge or Gilbough, or knew that either Runge or Gilbough had or had had any connection with the title to said land. Immediately prior to the dates of their respective purchases, as set out above, Bailey and Hampton, respectively, not knowing who owned the land, applied to the party from whom they rented (said railway agent) to purchase the land subsequently bought by him. In response to these applications said agent delivered to each one of them the deed to him executed by Gilbough, set out above, and received from each the purchase money and notes that he gave for such land. Neither Bailey nor Hampton knew either Runge or Gilbough in their transactions of purchase. When Bailey and Hampton so bought, they were living upon and occupying the land that they respectively bought.

(22) In the transactions between the railway agent at Crowley and Bailey and Hampton, mentioned in paragraph 21 in these conclusions, which is section 17 of the statement of facts, said agent in no way represented Runge, but did represent Gilbough. Neither Bailey nor Hampton, during and in said transactions, knew whom said railway agent represented therein.

(23) Neither Bailey nor Hampton, either at or prior to his aforesaid purchase from Gilbough, examined or had examined the records of Tarrant county, and neither at nor prior to the time of his aforesaid purchase neither of them examined or had examined the title of the land that he bought. Each one bought without any examination of the records of Tarrant county, or of the title that he bought. Each one, when he bought, believed that he was buying the land from the true owner, and that he obtained a perfect title, free of incumbrance. Each paid what he considered was the fair value of the land that he bought.

(24) Since September 17, 1894, defendant Hampton has had peaceable possession of the land that he bought from Gilbough as aforesaid, cultivating, using, and enjoying the same, paying the taxes thereon, and claiming to own same under his aforesaid deed from Gilbough. His occupancy was open and notorious, and he believed during all of said time that said land was his property, and that no one had any claim on it. For more than eight years prior to time of trial said land had been fenced. In no way has Hampton ever recognized any claim of Runge, and had never heard of Runge's claim until the filing of this suit.

(25) Prior to the filing of this suit, neither Bailey, T. Y. Cox, W. E. Cox, Dunn, nor defendants Louisa and S. W. Hays had any knowledge of the title or claim of Runge to the land in controversy. When each one bought, he...