Vaughan v. Kiesling

• Decision Date: 17 April 1941
• Docket Number: No. 11154.,11154.
• Citation: 150 S.W.2d 435
• Parties: VAUGHAN v. KIESLING et al.
• Court: Texas Court of Appeals

150 S.W.2d 435

VAUGHAN v. KIESLING et al.

No. 11154.

Court of Civil Appeals of Texas. Galveston.

April 17, 1941.

Rehearing Denied May 8, 1941.

Appeal from District Court, Harris County; Roy F. Campbell, Judge.

Suit by F. W. Vaughan against A. E. Kiesling and another to recover a one-third interest in land and for an accounting and removal of a cloud from title to plaintiff's claimed interest in land. From a judgment for defendants, plaintiff appeals.

Affirmed.

T. B. Blanchard and Ernest H. Folk, both of Houston, for appellant.

Vinson, Elkins, Weems & Francis, W. A. Vinson, Wharton Weems, and Fred R. Switzer, all of Houston, for appellees.

MONTEITH, Chief Justice.

This action was brought by appellant, F. W. Vaughan, to recover a one-third interest in a tract of 431.12 acres of land known as Lot 6 of the north half of the Thomas Choate League in Harris County, from appellees, A. E. Kiesling and T. K. Dixon, and for an accounting and for the removal of a cloud from the title to his claimed interest in said land.

Appellant alleged that he, together with appellees, Kiesling and Dixon, had purchased the land in question jointly from one T. J. Collins by deed dated March 7, 1910, for a consideration of $16,246.00, $4,311.50 of which had been paid in cash, one-third by each of them, and the execution and delivery of three promissory notes for the sum of $4,311.50 each, of even date with deed and due on respectively one, two and three years after date; that he left the United States shortly after the purchase of said land and had since that time resided in foreign countries; that he had never parted with his interest in said land and had not heard of any one else asserting any character of claim thereto until August, 1937, when he learned for the first time that appellees were claiming the title to his interest in said land through an execution sale under a foreclosure suit brought by T. J. Collins against him and appellees wherein judgment had been rendered in favor of T. J. Collins on December 23, 1911.

Appellant alleged that, at the time of such foreclosure and sale, he and appellees were cotenants and that, therefore, their purchase of said land inured to his benefit as well as to the benefit of appellees. He alleged that the default in the payment of said vendors' lien notes was part of a fraudulent scheme by appellees to acquire his interest in said land; that when he learned of such foreclosure and sale he had offered to pay appellees one-third of the sum they had paid therefor, plus interest thereon, but, that they had refused to accept such offer.

Appellees answered by general demurrer, general denial and a plea of not guilty. They specially plead the three, five, and ten year statutes of limitation and the two and four year statutes of limitation to appellant's suit to redeem.

In answer to special issues submitted, the jury found in effect that the foreclosure suit brought by T. J. Collins and the judicial sale thereunder were part of a fraudulent scheme by appellees to acquire appellant's interest in said land; that appellant had first learned of said foreclosure suit and sale in August, 1937; that he had not abandoned the purchase of said land and that he had offered to pay appellees his part of the money so expended by them, within a reasonable time after he had learned of their adverse claim to the land; that by the use of ordinary care appellant should have discovered that appellees had purchased the land in question at said foreclosure sale in September, 1922; that appellees had held peaceable and adverse possession of said land under title or color of title for three years before the commencement of the suit, and that they had held peaceable and adverse possession thereof, cultivating, using and enjoying it, and had paid taxes thereon under a duly registered deed for five years before the suit was filed.

Judgment was rendered against appellant and in favor of appellees for the title to and possession of the land sued for.

The record shows that appellant left Houston on August 11, 1911, and that he has lived in Central America for a number of years under an assumed name; that on October 25, 1911, eight felony indictments were returned against him, but that they were dismissed on September 23, 1922, at which time he had returned to Houston and had remained there for a period of three months; that at the time he returned to Houston in 1922 he did not call on either of appellees and did not visit said land or make inquiry as to its status, or pay taxes on it; that he did not pay, or offer to pay, T. J. Collins any part of either the principal or interest of the notes given as part of the purchase price for said land after he left Houston, and had never, up to 1938, when he learned through Houston newspapers of oil activity in the neighborhood of said land, offered to pay appellees any part of the money, they were required to pay for said land at said foreclosure sale.

On August 22, 1911, one J. W. Hicks filed suit against appellant to recover the sum of $674.63. He caused an attachment to be levied on appellant's interest in the land involved in this suit. On August 29, 1911, H. L. Mitchell filed suit against appellant to recover the sum of $2,275. He also caused an attachment to be levied on appellant's interest in said land. On September 8, 1911, T. J. Collins filed suit against appellant and appellees, Kiesling and Dixon, to foreclose his vendors' lien on said land and against H. L. Mitchell and J. W. Hicks, as holders of attachment liens against the land. At the time said foreclosure suit was filed appellees had paid $2,874.33 on the principal of the note due on March 7, 1911, and had paid all interest then due on notes 2 and 3. Out of the proceeds of said foreclosure sale the sum of $1,227.43 was paid into the registry of the court. It was later paid to H. L. Mitchell in settlement of the attachment liens in favor of Mitchell and J. W. Hicks.

Appellant contends that neither laches nor limitation begin to run against a cotenant out of possession until actual notice, both of their acquisition of his interest in said land by his cotenants and of their adverse claim thereto, have been brought home to him and that, since the jury in answer to issues submitted found that he had no knowledge of such foreclosure or sale or of appellees' adverse claim to said land until August, 1937, neither laches nor limitation began to run in their favor until that date.

While it is the general rule in this state that the purchase by one cotenant of an outstanding title in the common property inures to the benefit of his cotenant, it has been uniformly held that there is nothing in the relation which forbids one cotenant from acquiring the share of his cotenants at a foreclosure sale of the common property for the joint debt of all the cotenants where it is shown that the sale was not the result of collusion or subject to the control...