Swilley v. McCain

374 S.W.2d 871

• Court: Texas Supreme Court
• Decided: January 15, 1964
• Docket: A-8947
• Status: Published

Opinions

WALKER, Justice.

This suit in trespass to try title was instituted by George Grozier, a person of unsound mind acting by his next friend, against W. S. Swilley. After the deaths of the original parties, their heirs and successors in title were substituted as plaintiffs and defendants. The property in controversy is an undivided j4s interest in Lot No. 3, and an undivided interest in Lot No. 5, of the subdivision of the George Young tract located in the southwest portion of the Victor Blanco Grant in Harris County. Trial was to a jury, but the only issues submitted or requested dealt with defendants’ claim of title by adverse possession. While these issues were answered in the negative, the trial court rendered judgment for defendants on the basis of its conclusion that the plaintiffs had failed to show title in themselves. The Court of Civil Appeals affirmed as to Lot No. 5, but reversed and rendered judgment for plaintiffs as to the interest claimed by them in Lot No. 3. 354 S.W.2d 588.

Lorenzo de Zavalla, Jr.,¹ acquired title to three leagues of the Victor Blanco Grant by conveyance from his father dated Sept. 8, 1835. Defendants have a regular chain of title emanating from H. Masterson, to whom Zavalla conveyed the three leagues in 1903. The record also shows, a deed from Zavalla’s mother, Emily Hand, to George Young dated January 15, 1854, conveying a tract of 2,000 acres out of the three leagues. The land now in controversy, as well as that involved in the earlier cases discussed below, is part of this 2,000-acre tract. Plaintiffs claim through and under George Young, but no conveyance from Zavalla to his mother has been found. Instead of attempting to obtain a jury finding that a deed was made by Zavalla to Emily Hand, plaintiffs relied upon the proceedings in two former suits involving different parts of the 2,000-acre tract and the position taken by defendants and their predecessors in title in one of such suits.

In 1865 the land conveyed by Emily Hand to George Young was partitioned by the heirs of the latter into nine tracts, one of which was set apart to the widow and one to each of the children. Jane Young, the mother of George Grozier, received Lot No. 5 in the division, and her younger brother Malcolm, received Lot No. 3. Malcolm later died without having been married, and Jane Young inherited from him an undivided Yu interest in Lot No. 3. Jane married John Grozier and had four children: John, Robert, George and Hettie Ann. Upon her death each of the children inherited an undivided 14 interest in Lot No. 5 and an undivided Yse interest in Lot No. 3. One of the children, John, then died without issue, and his interest in the two lots passed one-half to his widow and one-half, jointly, to his sister and two brothers. If the George Young title is superior to that acquired by H. Masterson through his conveyance from Zavalla, George Grozier thus became vested with an undivided %4 interest in Lot No. 5 and an undivided 14s interest in Lot No. 3. These are the interests which plaintiffs seek to recover in the present suit.

In 1905 H. Masterson instituted an action in trespass to try title against the heirs of George Young in the District Court of Harris County to recover the land set apart to the children in the partition mentioned above. George Grozier was named as one of the defendants in the original petition, but the cause was severed as to him and several of the other heirs. The main case was then tried before a jury, which found that “there was a deed made to 2,000 acres of the Victor Blanco Grant by Lorenzo de Zavalla, Jr. to Emily Hand.” Judgment was rendered on the verdict in favor of the heirs who were parties to that cause, and Mas-terson appealed. The Court of Civil Appeals affirmed the judgment of the trial court, holding that the jury finding was supported by the evidence. Masterson v. Harrington, Tex.Civ.App., 145 S.W. 626 (wr. ref.). This is the first case upon which plaintiffs rely. The severed cause against George Grozier, who was then a person of unsound mind, was settled by his guardian ad litem. Under the terms of the settlement, $150.00 was paid by Masterson for George Grozier’s interest in Lot No. 5. Judgment was entered approving the settlement, and decreeing that .Masterson recover title and possession of such tract. Lot No. 3 is not mentioned in the judgment.

Masterson’s title was subsequently acquired by W. S. Swilley, under whom defendants claim. In 1946 Swilley, his wife and three daughters brought an action in trespass to try title against W. H. Wagers in the District Court of Harris County to recover 235.36 acres out of Lots Nos. 4 to 8, inclusive. After the death of W. S. Swil-ley, the suit was prosecuted by his executrix and the other original plaintiffs. Wagers was a naked trespasser. In response to his demand, the Swilleys filed an abstract of the title upon which they relied, listing therein: (1) the instruments showing title in Zavalla; (2) the 1903 conveyance by Zavalla to Masterson; (3) the chain of conveyances by which W. S. Swilley acquired title from Masterson; (4) the 1854 conveyance by Emily Hand to George Young; (5) the presumption of a deed from Zavalla to Emily Hand predating her deed to George Young and conveying the land therein described; (6) the proceedings in the Masterson case; and (7) prior possession and the statutes of limitation. The district judge concluded from the evidence introduced that the Swilleys had established record title in themselves, and the jury found in their favor under the three and five year statutes of limitation. Judgment was accordingly rendered for the Swilleys. The Court of Civil Appeals affirmed, holding inter alia that under the rule of stare decisis the superiority of the George Young title was established by the decision in the Masterson case. Wagers v. Swilley, Tex.Civ.App., 220 S.W.2d 673 (wr. ref. n. r. e.). This is the second case upon which plaintiffs now rely.

The Court of Civil Appeals held in the present case that the compromise judgment in the severed cause against George Groz-ier effectively divested the latter, at least as against collateral attack, of any interest in Lot No. 5. It further concluded: (1) that under the doctrine of stare decisis, the judgments in the Masterson and Wagers cases are available to plaintiffs as muni-ments of title; and (2) that since the Swil-leys had successfully asserted the presumption of a deed from Zavalla to Emily Hand in the Wagers case, they are now estopped to take a contrary position to the prejudice of the plaintiffs. Plaintiffs also say that the contentions made by the Swilleys in the Wagers case, the judgment in that proceeding, and the judgment in the Masterson case constitute admissions against interest. They contend that a deed from Zavalla to his mother has been proven thereby as a matter of law, just as it would be by an unimpeached recital in a subsequent conveyance executed by Zavalla. See Bennett v. Romos, 151 Tex. 511, 252 S.W.2d 442.

The judgments in the two earlier cases are not available to plaintiffs as muni-ments of title in the ordinary sense, because they were not parties to either of those proceedings and do not claim under anyone who was. We assume without deciding that in view of the position taken by the Swilleys in the Wagers case, the judgments, jury verdicts and other papers filed in both of the former suits were properly received in evidence as admissions against interest. See Campbell v. McLaughlin, Tex.Com.App., 280 S.W. 189. Such proceedings do not, however, conclusively prove that in fact a deed was executed and delivered by Zavalla to Emily Hand prior to his conveyance to H. Masterson. Reliance on the presumption of a lost deed and the successful assertion of the proposition that a prior decision is stare decisis of that issue may bind a party under principles of res judicata, estoppel or stare decisis, but cannot be regarded as having the same probative force as a recital of fact in a subsequent instrument executed by the grantor.

It is necessary at this point to notice two differences between the doctrine of res judicata and the rule of stare decisis. After a question of law or an issue of fact has been litigated and adjudicated in a court of competent jurisdiction, the same matter cannot be relitigated in a subsequent suit between the same parties or those in privity with them. This is by virtue of the doctrine of res judicata, which thus extends to both questions of law and issues of fact but binds only the parties to the first suit and those who claim under them. It may not be invoked by one who is not bound by the judgment in the earlier proceeding. See Kirby Lumber Corp. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387, 169 A.L.R. 174; Read v. Allen, 56 Tex. 182; 30A Am.Jur. Judgments § 324 et seq. The judgments in the Masterson and Wagers cases are not res judicata here, because plaintiffs were not parties to either of those suits and do not claim under anyone who was.

As originally conceived and as generally applied, the doctrine of stare de-cisis governs only the determination of questions of law and its observance does not depend upon identity of parties. After a principle, rule or proposition of law has been squarely decided by the Supreme Court, or the highest court of the State having jurisdiction of the particular case, the decision is accepted as a binding precedent by the same court or other courts of lower rank when the very point is again presented in a subsequent suit between different parties. As a general rule the determination of a disputed issue of fact is not conclusive, under the doctrine of stare decisis, when the same issue later arises in another case between persons who are strangers to the record in the first suit.

Expressions by some of our Courts of Civil Appeals suggest that an adjudication of the location of a boundary line will control the location of the same line in a subsequent suit between different parties even though the first case turned upon an issue of fact or the questions of law involved in the later litigation are not the same. See Patterson v. Peel, Tex.Civ.App., 149 S.W.2d 284 (wr. ref.); Cockrell v. Work, Tex.Civ.App., 94 S.W.2d 784 (wr. dis.); McDonald v. Humble Oil & Refining Co., Tex.Civ.App., 78 S.W.2d 1068 (wr. dis.) ; Porter v. State, Tex.Civ.App., 15 S.W.2d 191 (no writ). Another intermediate court has refused to disregard orthodox limitations on the doctrine of stare decisis even in boundary cases. See Dunn v. Land, Tex.Civ.App., 193 S.W. 698 (no writ); Horne v. Moody, Tex.Civ.App., 146 S.W.2d 505 (wr. dis. judg. cor.). See also Hodges, Stare Decisis in Boundary Disputes: Let There Be Light, 21 Tex.Law Rev. 241. No light can be thrown on that problem here, but it is our opinion that a decision upholding a jury finding that a missing deed was executed and delivered as against the contention that such finding had no support in the evidence is not stare decisis in a subsequent suit between different parties of the fact so found by the jury in the first case.

The principle of stare decisis does not make the Masterson case conclusive as to the superiority of the George Young title in the present suit. Plaintiffs say that they, have not contended that it is, but they do insist that the holding of the Wagers case as to the effect of the Masterson decision is stare decisis. We do not agree. The conclusion reached • by the intermediate court on that question in the Wagers case was unsound, and we did not unqualifiedly approve all of law declared in its opinion. See Rule 483, Texas Rules of Civil Procedure. A review of the application for-writ of error discloses, moreover, that approval of the stare decisis holding was not. necessarily involved in our denial of the writ of error. The holding of the intermediate court as to the effect of the Mas-terson decision is not, therefore, binding upon either defendants or this Court under the doctrine of stare decisis. See Conley v. Abrams, Tex.Civ.App., 7 S.W.2d 674 (wr. ref.); 14 Am.Jur. Courts § 74; 21-C.J.S. Courts § 198.

Defendants are not estopped to deny the superiority of the Goerge Young title. Ordinary equitable or quasi-estoppel may preclude a party from asserting a right inconsistent with his unsworn allegations or admissions in a former action, but such es-toppel arises only in favor of the parties to the first suit and those in privity with them. Smith v. Chipley, 118 Tex. 415, 16 S.W.2d 269; Railroad Commission v. Arkansas Fuel Oil Co., Tex.Civ.App., 148 S.W.2d 895 (wr. ref.); American Surety Co. of New York v. Martinez, Tex.Civ.App., 73 S.W.2d 109 (wr. ref.) ; Blackburn v. Blackburn, Tex.Civ.App., 163 S.W.2d 251 (no writ); 31 C.J.S. Estoppel § 121; 19 Am.Jur. Estoppel § 72 et seq. Judicial estoppel, which may be invoked by strangers to the record in the former proceeding, rest's upon statements made under oath in the course of such action. See Long v. Knox, 155 Tex. 581, 291 S.W.2d 292.

In Texas the presumption of a grant which arises from long possession and enjoyment of property coupled with other corroborating circumstances is one of fact, and as a general rule the trier of fact must determine whether the inference of a grant or conveyance is warranted by the evidence. Herndon v. Vick, 89 Tex. 469, 35 S.W. 141. See also Masterson v. Harrington, supra; Carlisle v. Gibbs, 44 Tex.Civ.App. 592, 98 S.W. 192 (no writ). The present record contains very little evidence of the type usually offered in support of the presumption, and certainly does not show as a matter of law that Zavalla made a deed to his mother before the conveyance to H. Masterson. Since no jury finding on that issue was obtained or requested and • the superiority of the Emily Hand title is not conclusively established by the proceedings in the Masterson and Wagers cases, the trial court properly rendered judgment for the defendants. We do not reach the question decided by the Court of Civil Appeals with reference to the effect of the compromise judgment in the severed cause against George Grozier.

The judgment of the Court of Civil Appeals is reversed, and that of the trial court is affirmed.

GRIFFIN and SMITH, JJ., dissenting.

1 . Although his name also. appears in the record as Lorenzo de Zavala, Jr., he is referred to herein as Zavalla because that is the spelling used in Masterson v. Harrington, Tex.Civ.App., 145 S.W. 626 (wr. ref.).