Welborn v. Earle

• Decision Date: 07 January 1925
• Docket Number: (No. 6811.)
• Citation: 268 S.W. 982
• Parties: WELBORN et ux. v. EARLE et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

268 S.W. 982

WELBORN et ux. v. EARLE et al.^*

(No. 6811.)

Court of Civil Appeals of Texas. Austin.

January 7, 1925.

Rehearing Denied February 4, 1925.

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Trespass to try title by A. B. Earle and wife against R. C. Welborn and wife, in which C. C. McElreath and others were interpleaded. From judgment rendered, defendants appeal. Affirmed.

Felix M. Bransford and Ocie Speer, both of Fort Worth, for appellants.

Benjamin Chilton, of Dallas, for appellee Union Life Ins. Co.

Capps, Cantey, Hanger & Short, of Fort Worth, for A. B. and A. G. Earle.

F. B. Walker, of Fort Worth, for McElreath and Blackburn.

BAUGH, J.

In March, 1921, A. B. Earle and wife sued R. C. Welborn and wife in trespass to try title to 85½ acres of land in Tarrant county, Tex., and sequestrated the land, which was then replevied by Welborn. The Welborns answered by general demurrer and general denial, and impleaded C. C. McElreath and D. E. Blackburn of Tarrant county, and the Union Central Life Insurance Company, a corporation, with headquarters in Dallas county. Against the impleaded parties and the original plaintiffs the Welborns set up an action in trespass to try title to the same 85½ acres of land, alleging amongst other things that said 85½ acres of land was on April 28, 1920, and long prior thereto had been, the separate property of L. P. Welborn, wife of R. C. Welborn, and that it was their homestead; that on or about said date they conveyed 50 acres of said land to C. C. McElreath and D. E. Blackburn for a recited consideration of $5,000, of which $3,500 was cash and property, and the remainder was the assumption by grantees of $1,500 outstanding indebtedness against the 85½ acres; that only $50 in cash was ever paid them; and that the remaining recited cash consideration failed, in that the other property, which was to be conveyed to said Welborn and wife free of liens, was heavily incumbered. They also alleged that the value of said property to be conveyed to them was misrepresented and said conveyance procured by fraud. Appellants also alleged that the said McElreath and Blackburn failed, neglected, and refused to pay off said $1,500 lien assumed by them, but let same mature, and induced appellants to convey to them on June 9, 1920, the remaining 35½ acres in order to enable them to get a loan on said whole tract of 85½ acres and pay off said $1,500 lien, promising appellants that they would turn over to appellants all excess of said loan over the $1,500. Appellants further alleged that said McElreath and Blackburn did obtain from the Union Central Life Insurance Company a loan of $3,400, which is alleged to be void because against their homestead, which fact was known or should have been known to all said parties at the time, because appellants were at all times in possession of the premises. Further allegations were that said McElreath and Blackburn agreed that upon obtaining the loan they would then reconvey all of said lands to appellants; that appellants' deed to them was only conditional; that they were never paid for their property; and that the insurance company and A. B. Earle, who purchased the land from McElreath and Blackburn, had actual and constructive notice of all these facts and circumstances. Appellants then asked for cancellation of all said instruments, and that they be quieted in their title to all of said land.

A. B. Earle and wife answered by supplemental petition, denying all said allegations pleaded that they were innocent purchasers for value without notice of any such claims, and that their conduct and the representations to them by appellants before their purchase of said lands from McElreath and Blackburn, and while negotiations therefor were pending, estopped appellants from setting up any such claims.

McElreath and Blackburn answered generally and specially, pleaded not guilty, and alleged that said conveyances were both bona fide purchases in which they paid to the Welborns valuable considerations as agreed upon, which considerations were accepted by said Welborns, and have never been returned to nor tendered back to them.

The Union Central Life Insurance Company also answered by general and special pleas, alleging that it had made the loan in good faith to the record owners of the lands without any notice of the claims of the Welborns therein; that the conveyances were absolute on their face; that $1,500 of the $3,400 loan made by said company was for the purpose of paying off the debt owed by the Welborns themselves; that at the time the loan was made on said lands the said Welborns knew that it was being made to C. C. McElreath as the owner of said lands; and that they actively assisted said McElreath and the Insurance Company in removing objections to the title to said land by making affidavits, in order to enable McElreath to get such loan, and were therefore estopped to assert any claims therein. Said company then alleged maturity of its debt according to its terms, and asked judgment therefor and for foreclosure of its lien on the land.

The appellants sought no personal judgment against any one, but only that the instruments mentioned be canceled, and that their title to and possession of the lands be restored to them.

The case was submitted to a jury on special issues. A peremptory charge to find in favor of the Union Central Life Insurance Company for its debt and foreclosure of its lien was given. On the other issues the jury found in favor of A. B. Earle and wife and against the Welborns, and judgment was rendered awarding title and possession to the Earles, giving the insurance company judgment for its debt against C. C. McElreath and foreclosure of its lien, and that the Welborns take nothing. From this judgment R. C. Welborn and, wife appeal.

Opinion.

Appellants assert error of the trial court under eight assignments upon which they base eleven propositions of law. The first assignment and first three propositions thereunder complain of the trial court's action in giving peremptory instruction in favor of the Union Central Life Insurance Company. Under the view we take of the case, this assignment becomes immaterial in any event. We pass, therefore, to the second assignment, which complains of the answer of the jury to special issue No. 1. This issue and the jury's answer thereto were as follows:

"At or prior to the date that the plaintiffs purchased the lands in controversy, did R. C. Welborn and L. P. Welborn lead the plaintiffs to believe that they had no further claim to the land in controversy?" To which the jury answered: "Yes."

Appellants' first proposition under this assignment is that there is no evidence to support it. Since our discussion of the second proposition thereunder disposes of this assignment, we pretermit a consideration of the first.

The second proposition is that this finding is contrary to the overwhelming preponderance of the evidence. We have read carefully the testimony on this issue, and do not agree with appellants' contention. The deeds from the Welborns to McElreath and Blackburn were absolute on their face, and were recorded. The possession by the Welborns, under these circumstances, was no evidence of ownership. This question will be discussed later. Other than this, the testimony of A. G. Earle and his wife clearly sustains the finding of the jury. In their testimony they were corroborated, in part at least, by the testimony of the witnesses Baker and Reynolds. To the contrary was the testimony of R. C. Welborn and his wife. We do not deem it necessary to set out or summarize the testimony. The jury had these witnesses before them. It was their prerogative to believe or disbelieve whom they chose, and they found against the appellants. The appellate courts have repeatedly held that, where the testimony is conflicting, findings of the jury based thereon will not be disturbed on appeal, unless such findings are so contrary to the overwhelming preponderance of the evidence as to clearly show prejudice or undue influence. That is not true in this case. On the contrary, we think the finding of the jury was sustained by the evidence.

Appellants' third assignment complains of the answer of the jury to special issue No. 2, which was as follows:

"Did A. B. Earle or A. G. Earle have actual knowledge at the time they bought the 85½ acres of land in question that the Welborns were claiming that the sale of the 35½-acre tract to McElreath was not a bona fide sale of the homestead?" To which the jury answered: "No."

Appellants' contention is that Earle had both actual and constructive notice, and was charged as a matter of law that the sale of said 35½ acres was only an attempted mortgage of the homestead. We think there is no merit in this. The authorities cited by appellants as to what constitutes notice as general rules are correct, but none of them apply to the exact case before us. The evidence undoubtedly shows that Earle and wife had no actual notice of the Welborns' claims. Nor was the deed to McElreath such as to call for any inquiry on their part. It was absolute on its face, was duly recorded, and recited a consideration of $4,000 "to us in hand paid by C. C. McElreath, the receipt of which is hereby acknowledged." The only notice, if any, then that they could have had was possession by the Welborns of the premises which they had already conveyed to McElreath. That such possession did not put them upon inquiry as to any claims the Welborns might have has been expressly determined by our Supreme Court in the case of Eylar v. Eylar, 60 Tex. 315. That case is on all fours with the case before us. J. F. Eylar and wife conveyed their homestead to O. A. Eylar, who afterwards conveyed the property for a valuable consideration to Ann Eylar, his mother. J. F....