Stewart v. Marshburn

• Decision Date: 16 February 1922
• Docket Number: (No. 748.)
• Citation: 240 S.W. 331
• Court: Texas Court of Appeals
• Parties: STEWART et al. v. MARSHBURN et al.<SMALL><SUP>*</SUP></SMALL>

240 S.W. 331

STEWART et al. v. MARSHBURN et al.^*

(No. 748.)

Court of Civil Appeals of Texas. Beaumont.

February 16, 1922.

Rehearing Denied April 5, 1922.

Appeal from District Court, Tyler County; D. F. Singleton, Judge.

Action of trespass to try title, between Sidney Stewart and others against L. H. Marshburn and others. From judgment for the latter, the former appeals. Reversed, and remanded for new trial.

Kennerly, Lee & Hill, of Houston, Coleman & Lowe, of Woodville, and Orgain & Carroll, of Beaumont, for appellants.

Gordon & Parker, of Beaumont, for appellees.

WALKER, J.

This was an action of trespass to try title, involving the George T. W. Collins league in Tyler county. As to that portion involved in this appeal, all parties claim under Cyrus S. Aiken, to whom the land was conveyed by David O. Warren on the 10th day of January, 1842, while he was the husband of Mildred Aiken. On the trial it was agreed:

"On, to wit, April 3, 1833, Cyrus S. Aiken and his wife, Mildred Aiken, were legally married in Alabama, and lived together as man and wife thereafter up to the time of his death on January 10, 1843, their residence and domicile being at all times during their married life in Alabama, and she, the said Mrs. Mildred Aiken, widow of Cyrus S. Aiken, continued after his death to live in Alabama up to the time of her death, which occurred on, to wit, July 7, 1843.

"Neither Cyrus S. Aiken nor his wife, Mildred Aiken, had any children.

"Cyrus S. Aiken died January 10, 1843; left neither father nor mother surviving him, and never had any brothers or sisters except the following, to wit: `William Aiken, John G. Aiken, James L. G. Aiken, Jane Love Aiken,' all of whom survive Cyrus S. Aiken."

The deed from Warren to Aiken recited a cash consideration on its face of $4,000, which the trial court found was actually paid therefor, and was the separate estate of Cyrus S. Aiken. Such finding made the land the separate property of Cyrus S. Aiken, and, under the laws of descent and distribution in force in this state at the time of his death, the land descended to his brothers and sisters, to the exclusion of his wife, but, as it was acquired during coverture, the presumption was it was community property and, on the death of Cyrus S. Aiken, descended to his wife, to the exclusion of his brothers and sister. Thus, under the laws of Texas in force at the time of the death of Cyrus S. Aiken, the actual legal title to the land descended to and vested in the brothers and sisters of Cyrus S. Aiken, to the exclusion of his wife, but the apparent legal title descended to and vested in his wife, Mildred Aiken, to the exclusion of his brothers and sister. Sanborn v. Schuler, 86 Tex. 116, 23 S. W. 641.

Appellee acquired 78 per cent. of the apparent Mildred Aiken title to the land now in controversy. He also acquired an interest in the land through the heirs of the brothers and sister of Cyrus S. Aiken. One of the appellants, Houston Oil Company, also acquired an interest in the Mildred Aiken title to the land, but is not asserting that claim on this appeal. All of the appellants are claiming under the brothers and sister of Cyrus S. Aiken.

The trial was to the court without a jury and judgment was rendered for appellees for 78 per cent. of the land on the ground that they were innocent purchasers of that interest in the apparent Mildred Aiken title. The remaining 22 per cent. was divided among all the litigants in proportion to the interest held by them under the brothers and sister of Cyrus S. Aiken.

Appellants attack the finding on the issue of innocent purchaser in favor of appellees, on the ground that it is not supported by the evidence. On the issue of innocent purchaser, the facts are substantially as follows: (1) L. H. Marshburn, one of the appellees, and through whom the other appellees hold, testified:

"My name is L. H. Marshburn. Now, on or prior to November the 1st, 1918, prior to which time it is agreed that I got certain interests amounting to 78 per cent. of the title of the Mildred S. Aiken heirs, I did not have any knowledge of the law of Alabama such as pleaded here in regard to moneys, etc., belonging to the separate estate of the husband. Prior to that time I did not know of any facts that would make this land coming to Cyrus S. Aiken during his marriage to Mildren Aiken his separate property. I do not remember just the date when I first knew of any claim that, under the law of Alabama, or any state in fact, this property was the separate property of Cyrus S. Aiken, but it was not very long before Banks — John O. Banks — intervened in the suit down at Beaumont. (It was here agreed that it was about May 1st, 1919.) He came to me and said: `I want to intervene in the suit. It was just a short time before the suit. I think I talked to Mr. Orgain about it about the same time. At the time I made purchases prior to November 1st, 1918, from Mrs. Aiken's heirs, I did have legal advice as to the title being in them. I had this advice from Mr. Gordon — well, I had advice before I ever consulted Mr. Gordon. When I first got into the case, just after this judgment, Mr. Johnson advised me — Judge Johnson, and also Judge Gordon, Mr. Shivers — I think I talked to him about it. I think that was all. I talked to Mr. Lee about it some. They told me the title was in the heirs of Aiken's wife, Mrs. Mildred Aiken. I acted on the advice of my attorneys and these other attorneys I talked to saying that Mrs. Aiken's heirs had title to the land. I paid these various sums of money recited in the deeds from the parties for that title, believing I was getting a good title. I think it was in the fall of 1916 that I first acquired any of this land. At the time I bought my first interest in there, I do not think I had any abstract — I am almost sure I did not. I consulted Mr. Shivers and Mr. Thomas about what the record shows with reference to the powers of attorney claimed by some of the heirs of Cyrus S. Aiken, independent of Mildred Aiken. I asked him this: There were some powers of attorney, I understood they had some powers of attorney from the Aiken side. I wanted to know if they had any claim before I bought the Mildred Aiken side. They advised me they had no claim, so I bought the other title. I wanted to know whether they asserted any claim under the Aiken side. I went to those men because I knew there had been a claim asserted from that source, and as I wanted to know — because they were lawyers and I thought they could tell me — if they were still asserting claim from that side, and they said they were not. I understood that Shivers had power of attorney from the Aiken heirs — he said he did. I am very sure he told me he had powers of attorney. I don't know about those particular two — Norma Aiken and Alma Aiken — but from the Aiken side of the house, and I investigated their claim and saw that they had nothing. I am not sure that he said he was the attorney — or withdrew the suit or something."

(2) A suit was instituted in 1912, in the district court of Tyler county, by those claiming under the brothers and sister of Cyrus S. Aiken, seeking to recover the land from the Houston Oil Company. This suit was referred to by Marshburn in his testimony above quoted, and as to this suit the trial court made the following finding:

"I further find, as shown by the entries on the disposed of docket of the district court of Tyler county, Texas, that such docket of said court shows cause No. 3207, A. A. Aiken, William G. Aiken, Norma Aiken, Katie Aiken, John G. Aiken, Irma B. Aiken, Alma Aiken v. Houston Oil Company of Texas; the entries on such docket showing that said suit was filed in 1912, and was continued from time to time until on February 8th, 1915, the final entry on said docket is: `2/8/15. Dismissed on agreement, and costs charged against plaintiffs and case dismissed without prejudice against either plaintiffs or defendants.'"

(3) In 1913 the Houston Oil Company placed a tenant on this land, who remained continuously in possession thereof as tenant of the Houston Oil Company until after this suit was filed.

(4) Mrs. E. S. MacDougall and others, claiming under the heirs of Mildred Aiken, brought suit for the land in controversy against the Houston Oil Company, in the district court of Tyler county. Afterwards, one E. J. Conn intervened in that suit, claiming the land. The MacDougalls and the Houston Oil Company then pooled their interests, agreeing to hold it in common, each to have a one-half interest therein. On the 8th day of August, 1916, judgment was entered in the district court in favor of E. J. Conn for an undivided 3/22 interest in the land and to the Houston Oil Company and the MacDougalls for the remaining 19/22. On appeal, the judgment in favor of E. J. Conn was reversed and rendered against him in favor of Houston Oil Company and the MacDougalls.

(5) The appellees afterwards acquired the MacDougall interest.

(6) It was agreed that the Houston Oil Company acquired a percentage of the true legal title before this suit was instituted, but it does not appear from the agreement or otherwise, when such title was acquired.

We believe this statement of the case sufficiently full to discuss the questions raised by this appeal on the issue of innocent purchaser.

We have already determined that the true legal title descended to, and vested in, the brothers and sister of Cyrus S. Aiken, to the exclusion of his wife, but that the apparent legal title descended to, and vested in, his wife, to the exclusion of his brothers and sister. This apparent title descended to her heirs and a bona fide purchaser from them would be protected in his title. Sanborn v. Schuler, supra. But, as appellees were purchasing only the apparent legal title against the true legal title, the burden rested on them to show that they were innocent purchasers for value. They rested under the same burden imposed by law on a junior...