Roosevelt v. Davis

49 Tex. 463

• Court: Texas Supreme Court
• Decided: July 1, 1878
• Status: Published

Opinion

Roberts, Chief Justice.

—It is agreedthat the legal title to the league of land in controversy was in John P. Watson on the 13th day of November, 1850, and all of the parties, except the intervenor, claim title by conveyances traced back to him.

Roosevelt, the plaintiff below, claims title by and' through a warranty deed from Watson to Joshua James, dated November 2, 1859, in the usual'form: by a" mortgage executed by Joshua James and his wife Mary K. James, on the 6th of March, 1866, to Oliver Mathews, to secure a debt due to him from C. L. James, the son of Joshua and Mary K. James; by a deed executed by Joshua and O. L. James September 1, 1868, witnessed by intervenor L. D. James, another son, in satisfaction of the mortgage debt, Mary K. James having died in the meantime, after date of the mortgage and before that of this deed, leaving surviving her husband and said two sons, and another son, who afterwards died, without wife or issue surviving him; by warranty deed from said Matthews to Roosevelt, 31st October, 1868. This is a regular chain of the legal title, unless it is broken as to a part interest claimed by L. D. James, intervenor, through his mother, as hereafter shown. These deeds were all recorded before the trial, and the mortgage was recorded in 1866.

■The claim of title of the defendant below, George W. Davis, is by a deed executed by Joshua James, with warranty,. on the 21st of June, 1856, (before he got a deed from Watson,) to T. H. McCray, for and in consideration of a draft (that was protested) for $516.60, and three notes, (one for $4,669.44, due 8th of April, 1857; one for $5,000.37, due 8th of April, 1858; and one for $5,341.30, due 8th of April, 1859,) in which deed it is recited that said Joshua James “ herein reserves a special mortgage and lien upon the land conveyed, to secure the payment of the foregoing described notes,” said deed being recorded June 21, 1856, the same day it was executed; by a quit-claim deed from T. II. McCray to the Telico Manufacturing Company, July 10, 1857; by a judgment against said company, execution, and sheriff’s sale, and purchase for $200 by George W. Davis on the 1st of March, 1859; and by possession of T. IT. McCray, of the said 'company, and of Davis, respectively, from the 21st of June, 1856, to the date of this suit, 13th of December, 1871.

The claim of title of Hodge, one of the defendants below and one off the appellants, is by a quit-claim deed from Watson to him, dated in 1870, who, it is contended by plaintiff Roosevelt, bought with actual and constructive notice of the plaintiff’s title; and Davis being in possession under deeds recorded, he must have had notice of his claim. Hodge’s right might, therefore, depend upon the defect and failure of their titles.

The claim of title of L. D. James is by inheritance of an undivided interest in the land from his deceased mother and brother; by a judgment in the State of Louisiana, decreeing that "Watson should “transfer and reconvey to the said Mary TC- James all the land and real estate in said deed in trust, or acquired in his trust capacity, in the States of Louisiana and Texas,” referring to property adjudged to have been held in trust by Watson for her under an agreement in 1848; the death of his mother in 1867, after the execution of the mortgage by her and her husband to Mathews, and before the execution of the deed to Mathews by his father and brother ; and by the death of his brother, J. W. James, without wife or issue surviving him, after the death of his mother.

The plaintiff contends that this decree, being rendered in Louisiana, could not of itself operate to affect the title to the land in Texas without the execution of a conveyance by Watson to her, in pursuance to the direction of the decree ; that the deed from Watson to Joshua James, reciting that it was executed in conformity with said decree, would not give notice of the decree being, as it was, in favor of Mary K. James; and that she having joined with her husband in the execution of the mortgage to Mathews in 1866 for this land, after the deed from Watson to her husband, and she in the mortgage having expressly relinquished her interest in the land, which was perfected by subsequent deed of Joshua and C. L. James, and witnessed by the intervenor, and, further, it being recited in said mortgage executed by her that the deed was executed from Watson to Joshua James in 1859, thereby showing her knowledge and recognition of the condition of the title of said land, the intervenor was estopped by her acts and acquiescence from claiming any interest in the land through her.

The cause having been submitted to the court without a jury, a judgment was rendered in favor of Davis, the defendant, thereby establishing his title to the land as superior to that of his co-defendant Hodge, to that of the intervenor L. D. James, and to that of the plaintiff Eoosevelt.

Although Joshua James had no title 'to the land when he executed the warranty deed to T. H. McCray in 1856, still, having obtained the title from Watson by deed executed in 1859, McCray may be said to have had thereby fully such title to the land as was conveyed to him by his deed, from its date, in 1856.

That deed, containing an express reservation of a lien on the land for the payment of the purchase-money, had the effect to make the perfection of his title dependent upon the payment of the purchase-money, and the notes given for it were, with the respective dates of their maturity, recited in the deed. Until said payment, the superior right to the land remained in Joshua James, so far as that deed was concerned. (Baker v. Ramey, 27 Tex., 59; Peters v. Clements, 46 Tex., 115.)

There is no evidence tending to show that McCray, or any one else tor him, ever paid any part of these notes. Two of the notes were not due at the date of his sale of the land to the Telico Manufacturing Company, on the 10th of July, 1857; and the possession of the notes by plaintiff’s counsel on the trial was consistent with the feet that they had net been paid.

One of the notes was still due when Davis bought the land at the sheriff’s sale on the 1st of March, 1859. The deed from Joshua James to T. H. McCray being on record from its date in 1856, gave to the Telico Company and to Davis notice of the express lien reserved, and of the date of the maturity of the notes; and the Telico Company having received a quit-claim deed, and Davis having bought only such interest as the company had, Davis must be held to have •taken and held the land in subordination to, and not adversely to, the superior title of Joshua James, until James conveyed it by mortgage recorded to Mathews in 1866, which is the first fact tending to show a repudiation of the relations previously existing between the parties, created by the deeds, transmitting the rights in the land from one to the 'other of these respective parties.

And until a manifest repudiation of such relation by James, or by McCray, or by the Telico Company, or by Davis, the notes being unpaid, the statute of limitations would not commence to run, either against the notes, so as to defeat James’ right to recover the land by his superior title, or to run by possession of three, five, or ten years, as against his superior title to the land. (Keys v. Mason, 44 Tex., 144; Browning v. Estes, 11 Tex., 237; Robertson v. Wood, 15 Tex., 4.)

There is no evidence of any such repudiation previous to that time, and from that time there could be no bar of plaintiif’s action to recover the land when the suit was brought in 1871, under our Constitution and statutes.

As the case is presented in the record before us, the plaintiff appears to have the superior legal title as against the defendant Davis, and that, therefore, the judgment in favor of Davis is erroneous.

As to the title of the intervenor, if he is not estopped, which question we do not decide, the title set up by him relates only to a part interest in the land, that does not entirely defeat the right of plaintiff to recover as against Davis, the defendant.

As the facts may be presented differently upon another trial as to the intervenor, and as to Hodge, the defendant, and also as to defendant Davis, it is not deemed necessary to further discuss the matters involved in this case.

Judgment reversed and cause remanded.

Reversed and remanded.