Stout v. Oliveira

• Decision Date: 13 March 1941
• Docket Number: No. 4037.,4037.
• Citation: 153 S.W.2d 590
• Parties: STOUT et al. v. OLIVEIRA et al.
• Court: Texas Court of Appeals

Page 590

153 S.W.2d 590

STOUT et al. v. OLIVEIRA et al.

No. 4037.

Court of Civil Appeals of Texas. El Paso.

March 13, 1941.

Rehearing Denied June 5, 1941.

Further Rehearing Denied July 10, 1941.

Appeal from District Court, Duval County; L. Broeter, Judge.

Action of trespass to try title by Serapio Oliveira and others against Mrs. Ora L. Stout, individually and as independent executrix of the estate of L. O. Stout, deceased and others, in which the Atlantic Refining Company and another intervened and named defendant filed a cross-action against plaintiffs, all other defendants, interveners, and others. From the judgment rendered, named defendant and others appeal.

Affirmed in part, and reversed and rendered in part.

Frank B. Tirey, of Waco, Geo. W. Barcus, of Austin, and Smith & Smith and B. Ray Smith, all of Corpus Christi, for appellants.

T. L. Dyer, of Austin, Perkins & Floyd and Lloyd & Lloyd, all of Alice, Dougherty & Dougherty and Geo. P. Morrill, all of Beeville, Neel, King & Rachal, of Corpus Christi, and Bromberg, Leftwich, Carrington & Gowan, of Dallas, for appellees.

SUTTON, Justice.

We think the motions for rehearing call for a more extended discussion of our views on the proposition raised by appellant Ora L. Stout, that the judgment rendered by the Austin Court of Civil Appeals, Schallert v. Boggs, 204 S.W. 1061, reversed and remanded the judgment of the trial court in its entirety and the contention of the appellees that the appeal was a limited one and the judgment of the trial court became final as to the lands here involved. We have concluded the original opinion should be withdrawn and this opinion substituted therefor.

The suit as originally instituted was in the nature of trespass to try title, but was tried on plaintiffs' first amended original petition wherein the plaintiffs pleaded the statutory action of trespass to try title and the three, five, and ten year statutes of limitation. The purpose of the original suit apparently was to remove cloud and clear the title to Survey 375, containing 640 acres.

The plaintiffs in the original suit were Serapio Oliveira and wife, Maria G. Oliveira, and Jesus Oliveira and wife, Elvira Oliveira.

The defendants named by these plaintiffs in the original suit in the brief of appellees have been separated into four groups:

(1) Mrs. Ora L. Stout, the surviving widow of L. O. Stout, deceased, who sued, was sued and appeared individually and as independent executrix of the estate of L. O. Stout, deceased; (2) Robert Schallert and wife, Jane Schallert; (3) Mrs. Etta Doss, J. R. Doss, Mrs. Jessie Thombs, Mrs. Gordon Boggs and George Boggs, all of whom are referred to and will be herein referred to as the Boggs heirs, being the heirs of T. K. Boggs; and (4) Eloisa B. Bazan, Juana B. Bazan, Desiderio Bazan and wife, Herminia Bazan, Francisco Bazan, Mirtha B. Ramon, joined by her husband, Eduardo Ramon, Antonio Bazan, Jesus Arencias, Trinidad Bazan, Francisco B. Serna, Josefe B. de Maldonado and husband, Teodoro Maldonado, Margarita A. de Maldonado, Hilaria B. de Ortega and husband, Basilio M. Ortego, Octaviano Bazan, Jesus Bazan, Hermilinda Bazan, Trinidad Bazan, Jesus Cabrera, Sipriano Cabrera, Francisco Cabrera, Dorotio Cabrera, Genoveva Cabrera, and Juanita Cabrera, all of whom will be referred to as the Bazan heirs, being heirs of Francisco Bazan.

In addition to those original parties to this suit the Atlantic Refining Company and the Phillips Petroleum Company intervened, and Mrs. Ora L. Stout in her answer and cross-action made the original plaintiffs and all the other defendants, the two interveners, and as well T. J. Ahern, Albert Wolf, Lern Oil Corporation and W. S. Stovall, cross-defendants in her cross-action.

The controversy over Section 375, 640 acres, was between these parties. The controversy with respect to the 385.31-acre tract was between Mrs. Ora L. Stout and Robert Schallert and his wife, and in some material respects the controversies were made to depend upon entirely different facts.

It was agreed and stipulated between all the parties that Robert Schallert was the common source of title. The Bazan heirs offered no testimony showing any title in them subsequent to the common source, and consequently went out of the trial in the trial court, and likewise cannot prevail here.

The judgment of the trial court with respect to those defendants enumerated above and referred to as the Bazan heirs, is affirmed, and all costs incurred by them will be taxed against them.

We will now consider the case with respect to Section 375, containing 640 acres.

The original plaintiffs, the two interveners, J. T. Ahern, Albert Wolf, Lern Oil Corporation and W. S. Stovall, made out their prima facie case by the introduction of muniments of title emanating from and under the common source, Robert Schallert. Mrs. Ora L. Stout then sought to establish her title to Section 375 by chain of title coming through the common source, Robert Schallert, and introduced a deed from Robert Schallert to T. K. Boggs dated September 1, 1913, wherein Robert Schallert conveyed to T. K. Boggs both tracts of land involved herein by general warranty deed; secondly, a deed from T. K. Boggs to L. O. Stout dated January 14, 1914, wherein Boggs conveyed to Stout the two tracts of land; third, the probate proceedings had in the matter of the estate of her deceased husband, L. O. Stout, wherein she was named in the will of L. O. Stout as the sole devisee of his estate.

The other parties claiming Section 375 adversely to her sought then to overcome her title by the introduction of the judgment of the 19th District Court of McLennan County, Texas, styled Robert Schallert v. T. K. Boggs et al., No. A-3686, which suit was instituted in said court on October 20, 1913, in which judgment was rendered January 8, 1917. Secondly, a lis pendens notice issued out of said cause No. A-3686 and filed in Duval County on the 22d day of October, 1913; the petition and by proof under their claim of title by limitation under the three, five and ten year statutes.

Mrs. Ora L. Stout, in response to this proof, offered by those adversely interested to her, introduced in evidence a lease contract covering said Survey 375 and entered into between her deceased husband, L. O. Stout, and Serapio Oliveira.

The trial court submitted the case on this phase of it on Serapio Oliveira's title under the ten year statute of limitation and a special issue, No. 8: "Do you find from a preponderance of the evidence that the plaintiff, Serapio Oliveira, signed the lease from L. O. Stout dated the 21st day of October, 1916?" The jury answered each of these issues favorably to the plaintiff Serapio Oliveira.

We think it may be inferred from the action of the court in submitting the case that he undertook to have it determined on the pleas of limitation and the finding with respect to the lease. The appellees, however, contend that the judgment rendered in the 19th District Court of McLennan County and appealed from by the plaintiff Robert Schallert to the Austin Court of Civil Appeals, and by that court reversed and remanded generally, being a severable one, had the effect of divesting the title out of T. K. Boggs and L. O. Stout and reinvesting it in Robert Schallert.

In the suit instituted in the District Court of McLennan County October 20, 1913, and tried and disposed of in the trial court in January, 1917, and considered in the appeal supra, styled Robert Schallert v. T. K. Boggs et al., No. A3686, Schallert sought on grounds of fraud to cancel his contracts made with the Boggs; to recover $8,000 cash he had paid them; the cancellation of his notes then outstanding in excess of the principal sum of $29,000, and in the event they had been sold, or any of them, to innocent purchasers, then the amount of those so sold; the recovery of 39 head of horses and mules delivered at an agreed price of $9,500, which was alleged to be their reasonable market value, and if sold, then their value in said sum of $9,500; and for the cancellation of his deeds to the lands involved here and the recovery thereof. The case was submitted on special issues, to which the plaintiff Schallert filed various objections and exceptions pointing out claimed errors in submitting the issues on misrepresentations and fraud. All Schallert's dealings were had with Boggs Bros., Gordon, Clayton and Hugh, sons of T. K. Boggs, and Kimsey. He merely alleged Hulsey, Tobias and Kean, the holders of certain of his notes, were parties to the conspiracy to defraud him, and had knowledge of the false representations made to him by the Boggs and Kimsey and were, therefore, not innocent purchasers for value.

The jury found the value of the horses and mules to be $2,800. They further found the amount of the note held by Hulsey to be $3,489.40, and of all the notes given by Schallert, except eight aggregating $20,000, to be $9,454.45, whereas the undisputed proof showed the amount to be $16,171.42. The jury further found the amount of the seven notes held by Hulsey, Tobias and Kean to be $24,425.80. The judgment was in favor of Schallert against the Boggs and Kimsey for the total sum of $44,169.65, whereas the undisputed proof demonstrated the total amount to be $57,586.62. These contradictory findings were challenged in assignments I and XII in the motion for a new trial. No. I was brought forward as No. 1 in the brief. There was a very substantial difference between the amount recovered and the amount paid out by Schallert on the notes and the amount of those held by Hulsey, Tobias and Kean. Consequently Judge Jenkins, in the first paragraph of his opinion, said: "The findings of the jury as to the amount of the notes separately are contradictory of their findings as to the aggregate value, and their findings as to the value of the horses and mules is not supported by the evidence, for which reason we sustain appellant's first assignment of...