Woodward v. Ortiz

• Decision Date: 07 February 1951
• Docket Number: No. A-2814,A-2814
• Parties: WOODWARD et al. v. ORTIZ et al.
• Court: Texas Supreme Court

Page 286

237 S.W.2d 286

150 Tex. 75

WOODWARD et al. v. ORTIZ et al.

No. A-2814.

Supreme Court of Texas.

Feb. 7, 1951.

On Motion for Rehearing March 7, 1951.

Rehearing Denied April 4, 1951.

Hall, Henrichson & Rawlins, Edinburg, and L. J. Polk, Pharr, for petitioners.

Frank G. Dyer, Houston, and Kelley, Looney, McLean & Littleton, and A. G. Haigh, all of Edinburg, for respondents.

CALVERT, Justice.

This is a suit in trespass to try title involving a tract of land in Hidalgo County. Petitioners, who are heirs of N. L. Woodward, deceased, were plaintiffs in the trial court. Respondents here and defendants in the trial court are Isidoro Ortiz who claims title to the land, George S. Anderson to whom Ortiz executed an oil and gas mineral lease on the premises and Wallace Sanders and Frank G. Dyer, trustees, to whom the mineral lease was assigned. The parties will be referred to in this opinion as plaintiffs and defendants.

It was agreed that Miss C. M. Flinn was the common source of title. As proof of their title plaintiffs offered in evidence a number of deeds showing a regular chain of title from Miss C. M. Flinn to Borderland Orchards Company, a corporation, and a judgment, regular on its face, for title and possession in their favor against Borderland Orchards Company and certain other defendants unnecessary to name. This judgment was rendered by the 92nd District Court of Hidalgo County on the 19th day of December, 1938, was filed in the office of the District Clerk and entered in the Civil Minutes of the Court on December 22, 1938, but was not filed and recorded in the office of the County Clerk until January 12, 1949.

To defeat the plaintiffs' title thus established defendants offered in evidence a judgment of the 93rd District Court in a delinquent tax suit in which The State of Texas suing for itself and Hidalgo County recovered judgment on September 25, 1944 against Borderland Orchards Company, one Irwin Knaps and certain other taxing units foreclosing its lien for delinquent taxes. They also offered in evidence the order of sale on such judgment, a sheriffs deed to Hidalgo County dated December 5, 1944, a deed from Hidalgo County to defendant Ortiz dated June 19, 1945, the mineral lease from Ortiz to defendant Anderson dated November 1, 1948, and the assignment of such lease from Anderson to defendants Sanders and Dyer on the same date. Plaintiffs were not made parties to the tax suit and it was stipulated that they had no actual notice of that proceeding or of the judgment entered therein until October 20, 1948. The regularity of the proceedings in the tax suit is not otherwise challenged.

Evidence was offered by plaintiffs to show that the attorney filing the delinquent tax suit either had or was charged in law with notice of the judgment of December, 1938, awarding them title to the land. Based on this evidence they contend that their title was not affected by the judgment in the tax suit. This evidence will be noticed in some detail later.

The trial court rendered judgment for plaintiffs and in response to a request therefor filed findings of facts and conclusions of law in which it was found that the attorney filing the delinquent tax suit had both actual and constructive notice of plaintiffs' interest in the property at the time the judgment was entered in the tax suit and that plaintiffs' interest was therefore not affected by such judgment. The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment that plaintiffs take nothing on the ground that the evidence was 'insufficient as a matter of law' to support the judgment. 231 S.W.2d 503, 504. This holding of the Court of Civil Appeals is assigned as error by petitioners. The question presented is one of law which this Court has jurisdiction to review. Jackson v. Watson, Tex.Com.App., 10 S.W.2d 977, 982.

The record reflects that Hollis H. Rankin, Jr., was employed as delinquent tax attorney for Hidalgo County on June 1, 1942 and that he continued in that employment until October 1, 1945. In his capacity as such attorney he filed and prosecuted the tax suit heretofore mentioned. The record reflects also that W. F. Tinkler, owner of the Hidalgo County-Starr County Abstract Company, was employed by Hidalgo County to furnish Mr. Rankin with title information necessary to the filing of tax suits. Mr. Tinkler in turn employed Hubert G. Ferguson, an Edinburg attorney, to do the actual work of running the index cards in the abstract office and of securing the information to be furnished to Mr. Rankin. It was the practice of Mr. Ferguson to furnish Mr. Rankin with a 'run sheet', a sheet of paper containing the names of the owners of the property involved, the lien holders thereon, etc. The 'run sheet' furnished in connection with the suit in question was found in the file of the delinquent tax attorney and it showed the name of the owner of the property to be Borderland Orchards Company and contained no information with reference to the Woodward judgment. It was the view of the Court of Civil Appeals that the absence of information concerning the Woodward judgment on this sheet conclusively negatived the existence of actual notice of the judgment on the part of the tax attorney and the county. There is no evidence that any other information with reference to the judgment was furnished the tax attorney by Ferguson or anyone else.

If, in holding that the evidence was conclusive that the tax attorney had no notice of the Woodward judgment, the Court of Civil Appeals meant that the attorney had no express knowledge thereof, we would be constrained to agree. It may be agreed also that the attorney did not have constructive notice-as that term is generally used and understood-of the judgment, for the judgment had not been recorded in the office of the County Clerk and the law did not charge him with notice of a judgment of record only in the Civil Minutes of the District Court. Arts. 6627 and 6638, Vernon's Ann.Civ.St.; Ball v. Norton, Tex.Com.App., 238 S.W. 889; Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490, 504, 107 S.W.2d 564, 111 A.L.R. 1152. It may well be, however, that the tax attorney and the County were charged with actual notice of the judgment even though they had no express knowledge thereof. Actual notice 'embraces those things of which the one sought to be charged has express information, and likewise those things which a reasonably diligent inquiry and exercise of the means of information at hand would have disclosed.' Hexter v. Pratt, Tex.Com.App., 10 S.W.2d 692, 693; Flack v. First National Bank of Dalhart, Tex.Sup., 226 S.W.2d 628.

We now examine the record to determine whether there was any evidence of probative value to support the fact finding of the trial judge. If there was, the Court of Civil Appeals was without authority to reverse the judgment of the trial court and render a take nothing judgment against plaintiffs on the ground that the evidence was 'insufficient as a matter of law' to support the fact finding. Liedeker v. Grossman, 146 Tex. 308, 206 S.W.2d 232; 3-B Tex.Jur. 457, sec. 941. In determining this question we must view the evidence in the light most favorable to plaintiffs, rejecting all evidence favorable to defendants. Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696.

Tinkler testified that abstracts were made up from the records as reflected by index cards kept in the abstract office; that he made index cards on all suits filed affecting the title to land; that certain notations on the index card to be mentioned later were in the handwriting of his daughter.

Ferguson testified that he was employed by Tinkler 'to procure title information in reference to ownerships and parties of interest' to lands involved and that 'the work consisted of showing the record owner and parties of interest, such as deeds of trust, mechanic's liens, judgments, mineral oil and gas interests, and other interests that might or would affect the title to the lands'. The witness had no independent recollection of the index card now to be described but did identify certain information contained on the back of the card as being in his handwriting.

An index card identified as having come from the files of the Hidalgo County-Starr County Abstract Company was introduced in evidence. The information thereon identified by the witness Tinkler as being in the handwriting of his daughter indicated that an Original Petition was filed on September 11, 1935 in Cause No. A-2657 styled Wm. V. Woodward et al. v. Wm. Belden (one of the defendants in that suit) for foreclosure on the east 10 acres and the west 10 acres of the east one half of Lot 7, Block 274 of the Tex-Mex Subdivision (a short description of the land here involved). On the front of this card also was a typewritten notation as follows: 'Judgment for title and possession in favor of plaintiffs Dec. 19, 1938 Vol. 6 Page 52'. On the reverse side of the card and identified by Ferguson as being in his handwriting was the following notation: 'Title & Poss to Wm. V. Woodward, and Mrs. May V. B. Woodward a widow; Mrs. Eunice Woodward Armstrong et vir. Donald A. Armstrong against G. E. Lankford, John Gardarl, Borderland Orchards Co., L. J. Simpson Jud. 19 Dec. 1938'.

Rankin, Tinkler and Ferguson were all engaged in working for Hidalgo County in its effort to collect delinquent taxes through suits. All were agents of the County. Tinkler and Ferguson were charged with the duty of furnishing to the County, through Rankin, full information of all outstanding interests in the land. That was the purpose for which they were employed and paid. If they or either of them had actual notice of the Woodward judgment, Hidalgo County as their principal and Rankin as the County's attorney were charged with notice thereof even though the information concerning the existence of the judgment was not in fact communicated to the County or Rankin. Hexter v. Pratt, s...