Taylor v. Taylor

• Decision Date: 25 February 1895
• Citation: 29 S.W. 1057
• Parties: TAYLOR et al. v. TAYLOR et al.
• Court: Texas Supreme Court

29 S.W. 1057

TAYLOR et al. v. TAYLOR et al.

Supreme Court of Texas.

February 25, 1895.

Error to court of civil appeals of Fifth supreme judicial district.

Action by Robert H. Taylor, Jr., and others, against D. E. Taylor, the Texas Loan Agency, and others, for recovery of land. From an affirmance by the court of civil appeals (26 S. W. 889) of a judgment for plaintiffs, defendants bring error. Affirmed as to defendants D. E. Taylor and others, and reversed as to defendant Texas Loan Agency.

Short & Hill and Richard B. Semple, for plaintiffs in error. W. A. Dunn and W. W. Wilkins, for defendants in error.

GAINES, C. J.

This suit was brought by Robert H. Taylor, Jr., Collie Taylor, Louisa Noble, and Mattie Gooch to recover an undivided half interest in certain tracts of land alleged to be the community property of their father and mother, Robert H. Taylor and Tennessee Taylor. Louisa Noble and Mattie Gooch were married women, and were joined pro forma by their husbands. It was alleged that Tennessee Taylor was the wife of Robert H. Taylor; that the lands were acquired during the existence of their marital union; that Tennessee Taylor died in the year 1867, and that R. H. Taylor filed, in the year 1869, an inventory in the county court, in which these lands were included as a part of the community estate. It was further alleged that R. H. Taylor conveyed the lands to H. E. Taylor and J. M. Taylor, respectively, in trust, however, for the benefit of himself and of plaintiffs, and that they had been subsequently reconveyed to him. It was also averred that the tract which was originally conveyed was sold under execution upon a judgment rendered against R. H. Taylor upon a community debt of himself and his deceased wife, Tennessee Taylor, and that at the sale it was purchased by H. E. Taylor for R. H. Taylor, and that the purchase money which was paid by H. E. Taylor was refunded by his father. It was further averred that R. H. Taylor died in the year 1889, having made his will, by which he devised the lands to D. E. Taylor, his third wife, and to three children, Jay B. Taylor, Y. Taylor, and Toodles Hofmaster; and that in the same year D. E. Taylor executed a mortgage upon the land to the Texas Loan Agency, in order to secure the payment of a debt for money borrowed of the company by her. The devisees under the will of R. H. Taylor, deceased, and the Texas Loan Agency, as well as other parties, were made defendants. This brief outline of the leading features of the case, as made by the petition, is sufficient for the purposes of this opinion. There was a verdict and judgment for the plaintiffs against the defendants named, which judgment was affirmed by the court of civil appeals. 26 S. W. 889. At the last term the appellants applied to this court for a writ of error, and their application was refused. But, the Texas Loan Agency having filed a motion for a rehearing, its application was reconsidered, and the writ was granted in its favor. At the time of awarding the writ we were of the opinion that the facts, as established by the verdict of the jury, and as confirmed by the court of civil appeals, showed an equitable title in the plaintiffs to an undivided one-half interest in the lands in controversy; and we are still of that opinion. But we think there was error in holding that the loan agency did not occupy the position of a bona fide purchaser without notice.

Taylor & Galloway, a firm of which H. E. Taylor was a member, acted as agents of the Texas Loan Agency in making the loan. They prepared an abstract of the title as shown by the records of Fannin county, which was sent to the company, together with an affidavit by H. E. Taylor as to certain facts affecting the title. This affidavit disclosed no fact showing that either he or J. M. Taylor ever held the lands in trust for R. H. Taylor, or the heirs of Tennessee Taylor; most likely for the reason that he did not believe that such trust ever existed. Upon the question of notice to the Texas Loan Agency, the court gave to the jury the following instruction: "An innocent mortgagee without notice is one who loans money out, takes a...