Strong v. Strong

• Citation: 98 S.W.2d 346
• Decision Date: 02 December 1936
• Docket Number: No. 1638-6704.,1638-6704.
• Parties: STRONG et al. v. STRONG et al.
• Court: Texas Supreme Court

Page 346

98 S.W.2d 346

STRONG et al. v. STRONG et al.

No. 1638-6704.

Commission of Appeals of Texas, Section B.

December 2, 1936.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by L. S. Strong and others against Manuel Strong, the Sun Oil Company, and another. Judgment for defendant company was affirmed by the Court of Civil Appeals [66 S.W.(2d) 751], and the plaintiffs bring error.

Affirmed.

McCartney & McCartney, of Brownwood, and Bramlette & Meredith and H. A. Leaverton, all of Longview, for plaintiffs in error.

Wynne & Wynne and T. B. Stinchcomb, all of Longview, T. L. Foster, J. W. Timmins, C. A. Toler, Joiner Cartwright, and

Martin A. Row, all of Dallas, and Ben H. Powell, of Austin, for defendants in error.

SMEDLEY, Commissioner.

Plaintiffs in error, the children of defendant in error Manuel Strong and his first wife, Nancy, sued Manuel Strong, his second wife, Minnie, and Sun Oil Company, defendants in error, for the title to an undivided 15/32 interest in a 50.5-acre tract of land in Gregg county and for partition. The land was community property of Manuel Strong and his first wife, acquired and conveyed to him during their marriage, and plaintiffs in error claim title as heirs of their mother. Manuel Strong and his second wife, Minnie, admitted the allegations of plaintiffs in error's petition and joined in the prayer for relief therein. Sun Oil Company asserted its ownership of the oil and gas in the 50.5-acre tract under an oil and gas lease executed by Manuel Strong and his second wife to one N. M. Wilson and by Wilson assigned to it.

The jury in answer to a special issue found that plaintiffs had failed to show that Sun Oil Company did not pay an adequate consideration when it acquired the lease from Wilson, but no answer was made to a special issue which submitted the question whether the facts and circumstances in evidence were reasonably sufficient to put Sun Oil Company on inquiry as to the title and claims of plaintiffs to the land, and no answer was made to a special issue submitting the question whether Sun Oil Company was a purchaser in good faith. The trial court, notwithstanding the failure of the jury to answer such issues, rendered judgment that plaintiffs take nothing as against Sun Oil Company. The Court of Civil Appeals affirmed the judgment of the trial court, holding that the evidence did not raise the unanswered issues. 66 S.W.(2d) 751.

The Court of Civil Appeals correctly held, in the learned opinion by Chief Justice Johnson, that Sun Oil Company is entitled to protection as an innocent purchaser of the oil and gas in the land, through and under the lease executed by Manuel Strong, who had the legal title, against the community interest or title of plaintiffs in error (which in determining the question of bona fide purchase is regarded as an equitable interest or title), unless there is wanting one of the three elements essential to constitute it an innocent purchaser—valuable consideration, absence of notice, and good faith. See Gilmore v. O'Neil, 107 Tex. 18, 173 S.W. 203; Deaton v. Rush, 113 Tex. 176, 197, 252 S.W. 1025; Pure Oil Co. v. Swindall (Tex.Com.App.) 58 S.W. (2d) 7; Edwards v. Brown, 68 Tex. 329, 4 S.W. 380, 5 S.W. 87; Patty v. Middleton, 82 Tex. 586, 17 S.W. 909; Houston Oil Co. v. Hayden, 104 Tex. 175, 135 S.W. 1149; Mitchell v. Schofield, 106 Tex. 512, 171 S.W. 1121; Elliott v. Wallace (Tex. Com.App.) 59 S.W.(2d) 109; Howard v. Commonwealth Building & Loan Association (Tex.Com.App.) 94 S.W.(2d) 144.

The first assignment of error presents the contention that evidence in the record of the existence in the community where the land is situated of notoriety or general reputation that plaintiffs in error had an interest in the land would have supported an affirmative answer to the issue submitting the question whether the facts and circumstances in evidence were reasonably sufficient to put Sun Oil Company on inquiry as to the title and claims of plaintiffs in error.

Several witnesses testified that it was commonly known in the community where the land is situated that plaintiffs in error had an interest in the land. There was no evidence showing or tending to prove that any one representing Sun Oil Company knew of the existence of such common knowledge or reputation or that any representative of Sun Oil Company was so situated that he would or should learn of such common knowledge or reputation. The undisputed evidence is that at the time Sun Oil Company acquired the lease the territory in which the land is situated was unproven, that Sun Oil Company had sent no geologist or other employee or agent there, had taken no steps to ascertain whether any one other than Manuel Strong had an interest in the land, and had no information about the ownership or occupancy of the land except that contained in an affidavit made by Manuel Strong. In the affidavit Manuel Strong stated in substance that he held a deed to the land duly registered, giving its date, the book and page where recorded, and the name of the grantor, that the land was not encumbered, that he was in possession of the land and had been continuously for at least twenty years, paying all taxes, and that no adverse claim had been made.

Thus no question of actual notice is presented. The question is whether the existence in the community in which the land lies of common reputation or notoriety that some person other than the person in possession has an interest in or claim to the land is of itself sufficient to put a purchaser on inquiry and to charge him with knowledge of the facts which inquiry would disclose.

A purchaser of land must search the records, for they are the primary source of information as to title and he is charged with knowledge of the existence and contents of the recorded instruments affecting the title. Smith v. Crosby, 86 Tex. 15, 22, 23 S.W. 10, 40 Am.St.Rep. 818; Leonard v. Benfford Lumber Company, 110 Tex. 83, 216 S.W. 382. He must also make inquiry as to the rights or title of the possessor, for possession is equivalent to registration, in that it gives constructive notice of the possessor's rights. Mainwarring v. Templeman, 51 Tex. 205, 43 Tex.Jur. § 389, p. 661. "The rationale seems to be, that as the occupant's title is a good one, and as his possession is notorious and exclusive, a purchaser would certainly arrive at the truth upon making any due inquiry. The purchaser cannot say, and cannot be allowed to say, that he made a proper inquiry, and failed to ascertain the truth. The notice, therefore, upon the same motives of expediency, is made as absolute as in the case of a registration." Pomeroy's Equity Jurisprudence (4th Ed.) § 615, Vol. 2, pp. 1166, 1167.

The value and effectiveness of the registration statutes are to an extent impaired by the rule that possession gives constructive notice of title, but the rule is justified, or at least supported, as suggested by Mr. Pomeroy, by the fact that ordinarily the truth as to title may be readily obtained from the person in possession. We find no good reason, however, for imposing upon the purchaser the additional burden of ascertaining at his peril what may be the common reputation in the community as to the ownership of land. Reputation does not ordinarily afford a ready or dependable source of information. It has the fallibility of hearsay. Rights or titles to land should not be dependent upon the existence or nonexistence, the truth or the untruth, of common reputation, notoriety, or rumor.

The mere existence of common reputation in the community as to the title or ownership of land could not be sufficient to put a purchaser on inquiry and charge him with knowledge of what might be developed by inquiry, unless the duty were imposed upon the purchaser of making inquiry of persons residing in the community for the purpose of ascertaining what they might know or might have heard about the title. In Bounds v. Little, 75 Tex. 316, 12 S.W. 1109, 1110, the trial court in charging the jury as to the defense of innocent purchaser made by Bounds instructed them in substance that if by the making of inquiry among persons living near the land Bounds could have learned from them of the existence of the deed through which plaintiffs claimed, then he would be deemed to have notice. In holding that this portion of the charge was erroneous, the court, speaking through Associate Justice Gaines, said: "We know of no rule of law which requires one who is about to purchase land to make inquiries of persons living near it. It is the duty of the purchaser to inquire of the party in possession by what right he holds, and hence the law affects him with notice of the claim of such possessor. But, in the absence of some information that some particular person knows of an adverse claim to the premises in dispute, there is no duty resting upon the purchaser to make inquiries of such person, although he may live in the neighborhood in which the land lies." (Our italics.)

In De Guerin v. Jackson, 50 S.W.(2d) 443, 448 [affirmed by Jackson v. De Guerin, 124 Tex. 424, 77 S.W.(2d) 1041] the Court of Civil Appeals, citing Bounds v. Little, supra, said: "The appellants were not under obligation to make inquiry of persons living near the land in the absence of actual notice to appellants that such persons had knowledge of facts in reference to the...