Whitaker v. Felts, 2365-7641.

• Decision Date: 08 October 1941
• Docket Number: No. 2365-7641.,2365-7641.
• Citation: 155 S.W.2d 604
• Parties: WHITAKER v. FELTS.
• Court: Texas Supreme Court

155 S.W.2d 604

WHITAKER v. FELTS.

No. 2365-7641.

Commission of Appeals of Texas, Section A.

October 8, 1941.

Rehearing Denied November 12, 1941.

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

Action by C. H. Whitaker against G. M. Felts for breach of warranty in deed to real estate. From a judgment for the plaintiff, the defendant appealed to the Court of Civil Appeals. The Court of Civil Appeals reversed the judgment and rendered judgment for the defendant, 129 S.W.2d 682, and the plaintiff brings error.

Affirmed.

M. Ward Bailey, A. B. Culbertson, and Culbertson & Morgan, all of Fort Worth, for appellant.

Hunter P. Lane, J. E. Warren, H. S. Lattimore, and John A. Scott, all of Fort Worth, and Walter Miller, of Belton, for defendant in error.

HARVEY, Commissioner.

This suit was instituted by C. H. Whitaker against G. M. Felts. The object of the suit is the recovery of damages for the alleged breach of warranty contained in a deed. In the trial court Whitaker recovered a judgment for damages. Felts appealed the case and the Court of Civil Appeals reversed the judgment of the trial court, and rendered judgment for Felts. 129 S.W.2d 682. Whitaker has been granted the writ of error.

The material facts are undisputed. They are substantially as follows:

On February 27, 1927, Felts duly executed to Whitaker a general warranty deed which was duly recorded on May 25, 1927. By the terms of said deed Felts conveyed to Whitaker, in fee simple, a tract of 34 acres of land situated in Bell County—same being the tract of land involved in this controversy. Whitaker paid Felts a valuable consideration for said conveyance.

On November 23, 1900, Felts—who was then the true owner of said 34 acre tract— duly executed to Sam and William Townsend, jointly, a deed conveying said tract to them, in fee simple. This deed, though duly signed and acknowledged by Felts, and by him delivered to the grantees, was not recorded until October 24, 1934. At the time Whitaker purchased this tract from Felts, in February, 1927, he had no notice of the Townsend deed unless the facts stated below constitute constructive notice of the instrument, towit:

The said 34-acre tract, at the time of Whitaker's purchase and for many years before that time, was raw, unimproved wood land. It was unfenced, but, along with several other adjacent unimproved tracts belonging to strangers, composed a single body of about 360 acres which was surrounded by the connecting fences appertaining to surrounding tracts belonging variously to strangers. None of these surrounding tracts belonged either to the Townsends or to Felts, and no segment of the said connecting fences belonged to either of them. All during said period of time, the Townsends and the surrounding landowners used the said body of land, thus enclosed, for the grazing of their cattle. During all said period of time, the Townsends, who lived on the prairie, some four or five miles away, occasionally cut fire wood from the 34 acre tract for home use. Although not germane to the subject of constructive notice the following facts are undisputed. In the year 1934, a few days before the Townsend deed was recorded, one Barton, the duly authorized agent of Whitaker, went upon the 34-acre tract and began clearing it of the growing timber. A few hours later, a duly authorized agent of the Townsends appeared on the scene and told Barton that Sam and William Townsend were the owners of the tract. The said agent forbade the cutting of the timber and commanded Barton to get off of the land. Barton at once obeyed the command. This suit was begun shortly afterwards.

In a suit of this sort, being an action at law for breach of the warranty clause of a deed, it is essential to a recovery of damages that an eviction...