Bordages v. Stanolind Oil & Gas Co.

129 S.W.2d 786, 1938 Tex. App. LEXIS 1255

• Court: Court of Appeals of Texas
• Decided: November 10, 1938
• Docket: No. 10620.
• Status: Published

Opinions

CODY, Justice.

This suit was brought by appellants to recover from appellees, in trespass to try title, an undivided interest in about 40 acres in the south part of Lot No. 1 of the Martin Dunman Survey in Galveston County, and to recover from one of the appellees damages in the sum of $138,750 for oil produced and removed therefrom.

The numerous appellees filed separate answers, pleading for the most part general demurrers, general denials, “not guilty”, the three, five, ten, and twenty-five year statutes of limitation; and two of the ap-pellees pleaded in addition, improvements and development made in good faith.

From a judgment rendered for appellees against appellants on an instructed verdict, appellants have appealed.

Appellants, who are about seventy-five of the descendants of John Hamshire, seek to recover in this case, in virtue of his apparently outstanding interest in Lot No. .1, aforesaid.

In August, 1845, the Martin Dunman Survey was patented to Martin Dunman. Upon his death it was partitioned; lot No. 1 of such survey was awarded to Wm. Reeves and wife, Sarah, who was a daughter of Martin Dunman and wife, Elizabeth Dunman. Thereafter, and on April 11, 1857, Elizabeth Dunman, widow of the patentee, married John Hamshire. Then, on September 15, 1858, Wm. Reeves and wife, Sarah, conveyed to Elizabeth Ham-shiré, Lot No. 1 that had been partitioned to Sarah, and in this deed John Hamshire was not mentioned, and Elizabeth Hamshire was described, sic, “(formerly Mrs. Elizabeth Dunman)”. This conveyance was not expressed as being made to Elizabeth Hamshire as her separate property. Such property therefore presumptively became the community property of Elizabeth and John Hamshire. He had no children of his union wiA Elizabeth Hamshire, formerly Dunman. He died intestate in 1872, and left surviving him several children by a former marriage, from whom appellants are descended. Thereafter, and on September 21, 1876, Elizabeth Hamshire conveyed Lot No. 1 of the Martin Dunman Survey, by a deed which is in part copied hereinafter, to Louisa Cronea. Louisa Cronea and her husband, Charles, moved on the tract (of 200 acres, which included the 40 acres in controversy), and they or their children and persons claiming directly under them have been in possession of part or all of this Cronea tract since 1876. One of the Cronea children lived on a part of the 200 acre tract continuously from 1876 until about two years before the filing of this suit, and her children are still living there. By mesne conveyances the appellees hold under Louisa Cronea and her husband, Charles.

The undisputed facts show that the John Hamshire heirs all live in the vicinity of this property; one of them was the wife of the surveyor that partitioned the property among the Cronea heirs, and lived there as a tenant of the Croneas. Appellants have never paid taxes on the property, and the present suit, brought after oil had been discovered and produced from the property, is the first time ány of them have asserted any claim to it. The 40 acres in controversy is in low marshy land next to the Gulf, and appears not to have been actually occupied or enclosed. But the deed from Elizabeth Hamshire to Louisa Cronea, dated as aforesaid September 21, 1876, and in virtue of which the Croneas went into possession of the entire tract as stated, includes such 40 acres, and was filed for record in the deed records of Galveston County, October 27, 1876.

We have been unable to see why the possession and use of at least portions of the 200 acre tract, conveyed to Louisa Cronea by Elizabeth Hamshire, by Louisa Cronea and her husband, and by their children after them, under and by virtue of such deed of conveyance, was not an adverse holding of all the land within the boundary of such deed. Hodges v. Ross, 6 Tex.Civ.App. 437, 25 S.W. 975, writ of error refused, 93 Tex. 709; par. 98 of Article on Adverse Possession. Vol. 2, pages 183 et seq., Tex.Jur. The record of the deed, accompanied by inclosure and use of a part of the land, was notice to the Hamshire heirs of a hostile claim to all the tract, inclusive of the 40 acres. If the heirs of John Hamshire could be said to be cotenants of Elizabeth Hamshire then it can be said that it is “a familiar rule in this state that where one tenant in common executes a deed purporting to convey the entire premises to at third person, who enters into 'possession thereof, claiming title to the whole, this will constitute a disseizin of the cotenants and after the expiration of the statutory period will bar the right of the cotenants to recover.” McBurney v. Knox, Tex.Com.App., 273 S.W. 819, 821. Again, “when it does appear that the tenant is in actual possession, asserting an exclusive right_to property under a deed or deeds conveying to him by spe'cific description the property in controversy, and his cotenants in common know of the existence of such deeds, and there exist circumstances that show that the one so holding is claiming by virtue of such deeds, his possession will be considered in keeping with the title under which he claims^ and will be regarded as adverse to the title of his cotenants.” Puckett v. McDaniel, 8 Tex.Civ.App. 630, 28 S.W. 360, 362. The deed from Elizabeth Hamshire to Louisa Cronea was as follows:

“Know all men by these presents: That I, Mrs. Elizabeth Hamshire widow of the late John Hamshire, and formerly the widow of Martin Dunman, deed, of said State and County party of the first part in consideration of a conveyance this day made by Charles Cronea and his wife Louisa A. Cronea, to H. M. Powell of a certain tract of land out of' the Burwell Franks Survey on Bolivar Peninsular”— (here follows description of the exchanged land)- — -“have granted, bargained and sold unto the said Mrs. Louisa A. Cronea, wife of Charles Cronea, he consenting thereto party of the second part her heirs and assigns forever, two hundred acres of land on Bolivar Peninsular in the County of Galveston, State of Texas, described as follows: One Hundred and forty seven & eight tenths (147-8/10) acres of land part of the Martin Dunman Survey on High Island and conveyed to me the said Mrs. Elizabeth Hamshire by William Reeves and wife Sarah Reeves by deed dated February 15th, 1858, and beginning at a stake on the Gulf shore 1275 vs. N. 67 E. from the S.W. corner of survey No. 16 made for Martin Dunman. Thence N. 23 deg. W. 2617-½ vs. to a stake for the N.W. corner. Thence N. 67 Deg. E. 318-% varas to a stake for the N.E. corner. Thence S. 23 deg. E. 2617-½ vs. to a stake for S.E. corner. Thence S. 67 deg. W. 318-% vs. to the beginning, with the Houses and improvements thereon.”- — -(here follows description of an adjoining fifty-two and two-tenths acres)— and then follows the Habendum and General Warranty Clauses.

Though appellees have not undertaken to support the action of the trial court in instructing a verdict in their favor on the ground that the operation of the statutes of limitation have barred the rights of ap p'ellants, we confess that on the face of the record we fail to see why it is not so sustainable: We do not, however, sustain the instructed verdict on this ground. We assume that, contrary to what seems to us to appear from the record, that appellees failed to establish, as a matter of law, the facts necessary to bar appellants’ rights under operation of the statutes of limitation.

The first contention of appellants is that when they proved up their heirship in relation to John Hamshire, and proved up that the land was conveyed to Elizabeth Ham-shire during her marriage to John Ham-shire, and not .conveyed to her as her separate property, they made out a prima facie case, entitling them to recover their respective proportions of his presumptive community interest. Appellants admit that under their contention Elizabeth Hamshire took the entire legal title to the property, citing Martinez v. De Barroso, Tex.Civ.App., 189 S.W. 740; and therefore further admit that the most his heirs can claim is his presumptive equitable community interest in the property. They frankly concede that in a suit by heirs, in such case, against a purchaser of the legal title, the burden is upon them to show that such purchaser, and those holding under him, had notice or were charged with notice of the outstanding title, citing Elliott v. Wallace, Tex.Com.App., 59 S.W.2d 109; Duckworth v. Collie, Tex.Civ.App., 235 S.W. 924. They contend, however, that this burden was discharged by the recitals which appear in the deed to Elizabeth Hamshire from her son-in-law and daughter, coupled with the recitals which appear in the deed from her to Louisa Cronea. That is, such recitals, they contend, charged appellees with notice that Elizabeth Hamshire was married to John Hamshire at the time she acquired title to the land. Being so charged with notice that Elizabeth Hamshire acquired the property while married to John Hamshire, they contend that purchasers of such estate were bound to use reasonable diligence to investigate whether John Ham-shire left children surviving him, and, as his surviving children (by a previous marriage) resided in the vicinity where the land was located, such an investigation would have disclosed such children and heirs.

Assuming for the moment that the recitals in the deed are sufficient to give subsequent purchasers of the land notice that John Hamshire owned an equitable community interest therein, then, by the same parity of reasoning, such recitals must likewise have constituted means by which appellants could have themselves known of the existence of their presumptive interest in such land — Hill v. Moore, 85 Tex. 335, 19 S.W. 162. It is not pretended that ap-pellees have been guilty of any act of concealment in connection with this matter, affirmative or negative, so such recitals appearing in the public records were constructive notice to appellants of their presumptive interest in the land. Hines v. Thorn, 57 Tex. 98, 104. Appellants remained passive while appellees, or some of them, incurred the expense of prospecting for, and discovering, oil. “It is generally accepted that the doctrine of laches is, not like limitation, a mere matter of time, but principally a question of the inequity of permitting a claim to be enforced; this inequity being founded on some change in the condition or relations of the property or the parties.” Brady v. Garrett, Tex.Civ. App., 66 S.W.2d 502, 504; Huffington v. Doughtie et al., Tex.Civ.App., 113 S.W.2d 343, 347. Therefore it seems to us that if the recitals in the deeds which appellants contend should be held to be sufficient to put appellees on notice of their presumptive interest, they must likewise be held sufficient to convict appellants of laches which would prevent a court of equity from, enforcing an equitable estate upon the legal owners. Here appellants, and their predecessors in interest, have stood by for sixty years and asserted no claim, and have permitted the legal owners to expend sums necessary to discover and develop oil, and we are unable to-persuade ourselves that, had appellees’' speculation turned out unsuccessful,' appellants would even now be asserting any claim. Therefore their claim should, it seems to us, be barred by their laches. And the defense of laches was available to ap-pellees under their pleas of not guilty. Mayes v. Manning, 73 Tex. 43, 11 S.W. 136; Montgomery v. Noyes, 73 Tex. 203, 11 S.W. 138, 139.

However, we do not believe that the recitals referred to were sufficient to put the purchaser from Elizabeth Hamshire, or those holding under such purchaser, on. notice of an outstanding equitable community interest in the heirs of John Ham-shire. Gilmer’s Estate v. Veatch, 102 Tex. 384, 117 S.W. 430; Griggs v. Houston Oil Co., Tex.Com.App., 213 S.W. 261; Turner v. California Co., 5 Cir., 54 F.2d 552; Moore v. Humble Oil & Refining Co., Tex. Civ.App., 85 S.W.2d 943, writ of error refused; Clayborn v. Gambill, Tex.Civ.App., 87 S.W.2d 508. We are able to distinguish this case from those cited by appellants in this connection.

Furthermore, we believe that every fact necessary to sustain the presumption of a grant of this land having been made by the ancestor of appellants is shown by the evidence. “It is not necessary to such finding that the evidence satisfies the mind of the court or jury that the grant was made. It is sufficient if the evidence leads to the conclusion that a conveyance might have been executed and that its existence would explain and account for the long claim and assertion of ownership on the one side and the acquiescence on the other.” Fowler v. Texas Exploration Co., Tex.Civ.App., 290 S.W. 818, 819, 823, writ of error refused; Fletcher v. Fuller, 120 U.S. 534, 7 S.Ct. 667, 30 L.Ed. 759; De Ramirez v. De Ramirez, Tex.Civ.App., 29 S.W.2d 872.

And in connection with the point relative to the presumption of a grant, it may not be amiss to state that, from an examination of the deeds in which the recitals relied upon by appellants occur, such words therein as “formerly” and “peninsular” are misspelled. From this it might be inferred that the deeds may not have been drawn by a member of a learned profession. We are not authorized, of course, to assume that the draftsman of the deed to Elizabeth Hamshire from her daughter and son-in-law was ignorant of the fact that, unless it were made to appear on the face of the deed that the land was conveyed to the grantee as her separate property, the presumption arose that it was conveyed to her as the community property of herself and husband, — a presumption that would remain rebuttable, of course, so long as the parties to it, or other witnesses that might know the facts, lived. But it certainly does not lessen the force of the applicability of the doctrine of a presumed grant where, as here, the interest which is asserted in conflict with such presumed grant does, itself, rest entirely upon a presumption — the presumption that where Elizabeth Hamshire was named as grantee, without any qualifying words, the intention was to convey to her unnamed husband as well as to herself. This presumption was rebuttable. And the fact that it was treated as being contrary to the truth for sixty years, lends credence to the view that it could have been rebutted at an earlier date. At least, as against this presumption, we may legitimately presume a grant' from John Hamshire to his wife, Elizabeth Ham-shire, or to some other of appellees’ predecessors in title, merely from the principle and for the purpose of quieting title. “The owners of property, especially if it be valuable and available, do not often allow it to remain in the quiet and unquestioned enjoyment of others. Such a course is not in accordance with the ordinary conduct of men. When, therefore, possession and use are long continued, they create a presumption of lawful origin; that is, they are founded upon such instruments and proceedings as in law would pass the right to the possession and use of the property”, etc. Fletcher v. Fuller, supra [120 U.S. 534, 7 S.Ct. 673].

For the reasons given, the judgment is ordered affirmed.

Affirmed.

MONTEITH, J., participating as Special Commissioner.