Silverman v. Harmon

• Decision Date: 28 February 1923
• Docket Number: (No. 6898.)
• Citation: 250 S.W. 206
• Parties: SILVERMAN et al. v. HARMON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

250 S.W. 206

SILVERMAN et al. v. HARMON et al.^*

(No. 6898.)

Court of Civil Appeals of Texas. San Antonio.

February 28, 1923.

Rehearing Denied March 28, 1923.

Appeal from District Court, Jim Wells County; Hood Boone, Judge.

Suit by Dilla Cohn Silverman and others against P. J. Harmon and others. From a judgment for plaintiffs against defendants Harmon and another, and for the remaining defendants, plaintiffs and defendant Harmon appeal. Affirmed as to defendant Harmon, and reversed and rendered as to remaining defendants.

Broeter & Ellis, of Alice, and J. C. Scott, of Corpus Christi, for appellants.

Boone, Pope & Savage, of Corpus Christi, R. R. Mullen, of Alice, and Perkins & Floyd, of Alice, for appellees.

FLY, C. J.

This is a very cumbersome record, the transcript consisting of 432 pages of typewritten matter, and the statement of facts containing 791 pages. Appellants have copied into their briefs only 151 of the 196 assignments filed in the trial court; about one-third of the brief of 210 pages being appropriated for that purpose. The record also contains 148 bills of exception. We ascertain that the suit was one of trespass to try title instituted by the appellants Dilla Cohn Silverman, her husband, Abe Silverman, Archie Cohn, and Louis Frank, executors and trustees of the will of Philip Cohn, deceased, against the appellees P. J. Harmon, W. A. Henry, Arthur B. Martin, J. B. Osborne, and J. L. Sutherland, the land involved being 323 acres, described as lot 1 of "Adams-Staples farm lots." Appellees answered by a general demurrer, plea of not guilty, and limitations of three and five years. The cause was submitted to a jury on special issues, and on the answers thereto judgment was rendered that Dilla Cohn Silverman, joined by her husband, Abe Silverman, Archie Cohn, and Louis Frank, recover from P. J. Harmon and W. A. Henry, the last named by default, the 323 acres of land sued for except 5 acres sold by Harmon to Arthur B. Martin, 5 acres conveyed by Harmon to C. B. Osborne, and 5 acres sold by Harmon to J. L. Sutherland, as to which 15 acres appellants take nothing as against Martin, Osborne, and Sutherland. Harmon excepted as to the judgment against him, and appellants excepted to that part of the judgment in favor of Martin, Osborne, and Sutherland. Appellants and Harmon perfected their appeals by giving bonds as required by statute.

The court instructed a verdict as against P. J. Harmon in favor of appellants, and in answer to the issues submitted the jury found that Philip Cohn, whose estate appellants are administering, had notice that Harmon and Duncan, P. Harmon and their agent, were contracting with purchasers for the sale of subdivisions of the land in controversy and were collecting the purchase money from such purchasers; that Philip Cohn had notice that the proceeds of the sales of such subdivisions were being applied by Harmon and Duncan and P. J. Harmon, either on indebtedness of said Cohn on said lands, or paying it to him, or in improvements on the lands or in furtherance of the sales of such lands; further that appellants, as executors and trustees of the estate of P. Cohn, knew that Harmon and Duncan and P. J. Harmon and their agents were collecting the purchase money from purchasers of the land, and knew that such collections were appropriated to the payment of the debts of said Cohn due on said land, or in improving the land and furthering sales, and especially that they knew of sales to Martin, Osborne, Sutherland, and Henry. They knew that Harmon was making deeds to the lands when the purchasers paid for them, and made no objection to such sales made before October 1, 1916. The evidence sustained the findings.

The first assignment of error assails the judgment because it is unsupported by the facts, in that it was shown that title to the land was in Philip Cohn, and on his death the same passed to appellants; that none of the purchasers knew that appellants had any knowledge of the fact of Harmon selling their land to the purchasers. Under that assignment there are three propositions: First, that a person acquires no title to land as against the owner from one who does not own it, nor has authority from the owner to convey it; the second merely extends the proposition to the representatives of the dead owner; and the third that in an action of trespass to try title an equitable title must be specially pleaded. It is rather a strain on the assignment of error to obtain anything on which to base these propositions, but we have considered them anyway, as substantially the same propositions are advanced under other assignments of error.

The evidence in this case shows that on December 4, 1909, an agreement in writing was entered into between Philip Cohn and Harmon and Duncan, wherein it was recited that Clark Pease, H. Cohn, and S. Gugenheim had contracted to sell P. Cohn what was known as the "Adams-Staples farm lots," and that, if that contract was executed and the land conveyed to Cohn, he agreed to convey it to said Harmon and Duncan, the same to be paid for in installments, set out in the contract. The land was conveyed to P. Cohn by Pease, H. Cohn, and Gugenheim on January 1, 1910, and on June 12, 1911, another contract was entered into between P. Cohn, on the one part, and P. J. Harmon and J. K. Duncan, on the other. That contract was for the sale of the land known as the "Adams-Staples farm lots," except certain parts sold to J. C. Watkins and Charles Loughmiller; the consideration being the sum of $91,362.18, in deferred payments. Cohn in that contract bound himself to make a deed to Harmon and Duncan on the payment of the last installment of the purchase money. Harmon conveyed the land to Martin, Osborne, and Sutherland and paid the money received for such lands to Cohn. He and appellants herein knew that Harmon was selling off parts of the land, and that they were receiving the purchase money for the same.

Under a plea of not guilty a defendant in an action of trespass to try title can interpose any lawful defense, except the defense of limitation, which shall be specially pleaded. Vernon's Sayles' Civ. Stats. art. 7740. The statute justifies the defense of estoppel or any other equitable defense under the plea of not guilty. Scarbrough v. Alcorn, 74 Tex. 358, 12 S. W. 72; Guest v. Guest, 74 Tex. 664, 12 S. W. 831; Kauffman v. Brown 83 Tex. 41, 18 S. W. 425; Beason v. Williams (Tex. Civ. App.) 229 S. W. 963; Village Mills Co. v. Houston Oil Co. (Tex. Civ. App.) 186 S. W. 785; Rio Bravo Oil Co. v. Sanford (Tex. Civ. App.) 217 S. W. 221; Mensing v. Lumber Co. (Tex. Civ. App.) 194 S. W. 208; Blumenthal v. Nussbaum (Tex. Civ. App.) 195 S. W. 275.

There is no claim that the purchasers of the land from Harmon were induced by the acts or words of either P. Cohn or his representatives to enter into the contracts of purchase of the land. The purchasers knew that the record title to the land was in P. Cohn, because on February 1, 1910, before Harmon sold any of the land, the deed from Gugenheim, Cohn, and Pease to P. Cohn had been recorded in Nueces county. That deed placed the record title in P. Cohn. They were given notice by the same record that Harmon had no title to the land, the contract between Harmon and Duncan and P. Cohn, dated June 12, 1911, showing that Cohn had entered into a contract upon the compliance with onerous conditions to convey to Harmon and Duncan the lands in controversy. The record did not show any compliance with the terms of the contract upon the part of Harmon and Duncan, and no one by word or act ever led appellees to suppose that the terms had been complied with. They were notified that a deed would be executed by Cohn to Harmon and Duncan upon the payment of certain sums, and they knew that such deed had never been executed. They had notice that Harmon could not obtain a release of any part of the land until he had paid certain indebtedness and obtained a deed of conveyance from Cohn. No one authorized to do so by word or act ever intimated to any one of the purchasers that P. Cohn or his executors would release the land they bought or give a title to the same. They knew Harmon had no title. The only claim made to equitably estop appellants from claiming the land is that of their knowledge of the fact that Harmon was selling off portions of the land, and had entered no objection to the sales, and appropriated the money from such purchases when paid to them by Harmon. In other words, they claim title on account of the acquiescence by appellants in the sale of the lands.

It is the rule in equity that acquiescence consisting of mere silence may operate as an estoppel to preclude a party from asserting legal title and rights of property, real or personal. There need be no intention to deceive or mislead. The rule is based on the principle that, if a person is silent when in conscience he should speak, equity will close his mouth when in conscience he ought to remain silent. This is the case where the owner stands silently by and permits another to deal with property as though it were his own, and thus permits the other to place himself in a worse position than before. Of course, the other person should be acting in ignorance of the real condition of the title. A striking instance of such estoppel is where an owner of land by intentional misrepresentation, misleading conduct, or wrongful concealment may preclude himself from asserting his title. In such cases fraud, actual or constructive, is the essential element. Pomeroy, Eq. Jur. § 821; Mayer v. Ramsey, 46 Tex. 371. The rule is thus stated in Burleson v. Burleson, 28 Tex. 416:

"If one act in such a manner as...