Temple Lumber Co. v. Kirby Lumber Co. , 42 S.W.2d 1070 ( 1931 )

WALKER, J.

The history of the title to the James S. Ogden survey of 640 acres, patent No. 637, in Sabine county, Tex., subsequent to the common source, is as follows: Thompson Allen was the common source of title. Holding under the common source,.on October 10, 1870, John Allen conveyed an undivided one-sixth interest in the Ogden survey to John A. Morris, and on the 20th day of September, 1870, W. W. Allen also conveyed an undivided one-sixth interest to Morris. On the 7th day of July, 1891, Morris conveyed his undivided one-third interest to J. O. Toole, who, on the 10th of July, 1800, conveyed the same interest to A. D. Hamilton, who, on the 5th of December, 1001, joined by John H. Kirby, conveyed the same interest to Houston Oil Company. On the 4th of August, 1016, Houston Oil Company conveyed this same interest to Southwestern Settlement & Development Company. Afterwards, joined by Houston Oil Company, Southwestern Settlement & Development Company conveyed the timber on this one-third undivided interest to Kirby Lumber Company. Every conveyance in Kirby Lumber Company’s chain of title described the one-third interest held by it as an undivided interest.

Temple Lumber Company’s title, under the common source, originated on the 22d day of July, 1S70, under a deed whereby Cornelia L. Oliver conveyed to Lévi T. Allen her undivided one-sixth interest in the Ogden survey. On the 10th of December, 1881, Levi T. Allen conveyed to W. W. Weatherred an undivided two-sixths interest in this survey. On the 15th of October, 1881, Jerusha C. Speights, joined by her husband, conveyed her undivided one-sixth interest in this survey to W. W. Weatherred. On the 10th of December, 1881, Weatherred conveyed to Benjamin F. Van Meter a specific 427 acres on this survey, describing it as follows: “Four hundred and twenty seven acres off of the James S. Ogden survey of six hundred and forty acres, it being the tract of land described in Patent No. 367, Vol. 2 issued by the State of Texas to James S. Ogden on the 3rd day of Nov. A. D. 1840, situated in Sabine County, Texas, about five miles east of the town of Milam. The land hereby conveyed is all of said Ogden survey except two hundred and thirteen acres off of the east end of said tract owned by John A. Morris, for more particular description of said survey reference may be had to the county records of Sabine County.”

By deed dated the 20th day of January, 1S83, Van Meter conveyed his 427 acres to C. P. Huntington, describing it as follows: “Four hundred and twenty-seven (427) acres of the J. S. Ogden survey, deeded to me by ' W. W. Weatherred by deed dated Deer. 10th 1881, and recorded in records of Sabine County, Book D pages 426 & 427.”

On the 28th day of September, 1898, Mr. Huntington conveyed the same land by specific description to George E. Downs. In the field notes of the 427 acres, the following references were made: “Also the northeast corner of the Morris 213 acre tract out of this survey”; “for the southwestern corner of the Morris 213 acre tract out of this survey”; “the northwest corner of said 213 acres.” This description concluded as follows: “Being the same property conveyed to me by B. F. Van Meter as shown in his deed recorded Vol. E. pg. 105 Sabine Co.”

By regular chain of title under the common source, including the deeds just described, Temple Lumber Company acquired title to an undivided two-thirds interest in the Ogden survey not later than 1910. It thus appears that in some of the deeds through which Temple Lumber Company must claim its interest was described by specific metes and bounds as being 427 acres, while in other deeds it was described merely as an undivided interest.

About the year 1880, the exact date not shown, John A. Morris, under whom Kirby Lumber Company holds, at a time when he owned his interest in the Ogden survey, surveyed as his part 213 acres out of the southeast corner of the 640 acres. This was done upon agreement with one of his cotenants. As long as he held title to his interest in this survey, he claimed only this 213 acres, but he claimed it affirmatively, to the exclusion of his cotenants. While he claimed it, he cut and removed a large part of the timber therefrom ; built a house thereon, in which he kept tenants for several years; and also built a sawmill within a few feet of one of the lines to the 213 acres, upon which he manufactured into lumber the timber cut therefrom. When he sold his interest to Toole on the 7th day of July, 1891, he sold the specific 213 acres, and pointed out to him his lines to this tract of land, though, in describing the land in his deed to Toole, he described it as an undivided interest. Toole cut some of the timber from the 213 acres, and did not claim any other part of the survey, but, when he sold his interest to A. D. Hamilton, he conveyed it as an undivided interest. Hamilton bought, believing he was acquiring an undivided interest in the entire tract, and, when he sold to Houston Oil Company, he thought he was conveying, and attempted to convey, an undivided one-third interest. Under like conditions, Houston Oil Company conveyed to Southwestern Settlement & Development Company, and it conveyed to ICirby Lumber Company. Neither of these grantors had actual knowledge of the partition made by John A. Morris, and were good-faith purchasers, unless given constructive notice of the partition by the recitals in the chain of title of Temple Lumber Company and by the physical facts upon the 213 acres when they purchased their interest. In this connection it was shown that the lines around the 213 acres had been renewed at different times from 1S80 to 1924, and that at all times from the date of the Morris occupancy there was evidence on the ground of the cutting of the timber and of the sawmill and of the other improvements made by Morris. The partition was also shown by general reputation. There was no sign of timber cutting on any other part of the 640 acres.

Temple Lumber Company acquired and held its interest in the belief that Kirby Lumber Company and Southwestern Settlement & Development Company owned the specific 213 acres, and that it was the owner of the remaining 427 acres. In this belief Temple Lumber Company began cutting the timber on the 427 acres, when Kirby Lumber Company sent it the following telegrams:

“Houston, Texas, October 18,’ 1924. “Temple Lumber Company, Pineland, Texas.

“Surprised to hear you are' cutting timber from Ogden survey in Sabine County. We own one third undivided interest in this. Please stop cutting immediately until we can make a satisfactory partition. Answer quick.

“Kirby Lumber Company,

“By H. M. Seaman.”

“Houston, Texas, October 20, 1924. “Temple Lumber Company, Pineland, Texas. “Your wire received. Our interest in this survey is an undivided one third being the interests of John W. Allen and W. W. Allen no partition has been made please let us have your assurance cutting of timber on this survey will be immediately discontinued until we can make satisfactory partition. Answer quick.

“Kirby Lumber Company,

“By H. M. Seaman.”

“Houston, Texas, October 20, 1924.

“Temple Lumber Company, Pineland, Texas.

“Since our wire date Mr. Kenley has phoned you contend oral partition of Ogden survey was made by some of our predecessors in title. Neither Kirby Lumber Company nor Houston Oil Company under which we hold has had any notice or knowledge of any partition and if you continue cutting in disregard of our one third undivided ownership of timber on this entire survey we will expect to look to you for manufactured value for so much of our timber as you may cut.

“Kirby Lumber Company,

“By I-I. M. Seaman.”

Notwithstanding these telegrams, which were duly received, Temple Lumber Company proceeded to cut all the timber from the 427 acres, but cut no timber from the 213 acres.

This suit was brought by Kirby -Lumber Company against Temple Lumber Company to recover the manufactured value of one-third of the timber cut by it from the Ogden survey, and, if not entitled to the manufactured value, then for the stumpage value. The answer of Temple Lumber Company was sufficient to raise the legal propositions hereinafter discussed. The case was tried to a jury. The manufactured value was shown to be $29.25 per thousand feet and the stump-age value $5 per thousand feet. The jury found on the entire survey a total of 12,783,-325 feet, and standing on the 213 acres 2,783,-325 feet, and that Temple Lumber Company had cut and removed from the entire survey 10,000,000 feet. The jury further found that the cutting of the timber by Temple Lumber Company was “negligent and in reckless disregard” of the rights of Kirby Lumber Company. Upon these findings, the court entered judgment to the effect that Kirby Lumber Company owned an undivided interest of 4,-261,108 feet in the timber on the entire survey, from which the court deducted 2,783,325 feet left standing on the 213 acres, leaving a balance of 1,447,703 feet belonging to Kirby Lumber Company which Temple Lumber Company had appropriated, for which judgment was entered in favor of Kirby Lumber Company at the rate of $29.25 per thousand feet, manufactured value, amounting to $43,-372.93, with the additional sum of $10,409.48 interest, less a credit of $681.43 for timber cut from the 213 acres on issues not involved in this appeal. The total judgment was $53,100.-98. Against the judgment, Temple Lumber Company has duly perfected its appeal to this court.

Opinion.

On the undisputed facts, at the time John A. Morris surveyed off his 213 acres, the entire tract of 640 acres was of uniform value, and, in appropriating the specific 213 acres, he claimed no more land than he would have been entitled to under a judicial partition, but claimed all that he would have been entitled to. Thus, in claiming the specific 213 acres, he effected an equitable partition with his cotenants, which, as between him and them, and those holding under him with knowledge of the partition, the courts would enforce. Though this act of partition was valid and legally enforceable against those with knowledge thereof, there was nothing in its nature to affect Morris’ remote grantees, buying without notice. So, if appellee, in fact, acquired its title as an innocent purchaser, without notice of the partition, it was not bound thereby, but would be entitled to hold the one-' third interest granted to it by its deed, “subject to such equities as may arise between tenants in common,” Allday v. Whitaker, 66 Tex. 669, 1 S. W. 794, 796.

Though appellee Southwestern Settlement & Development Company, Houston Oil Company, and A. D. Hamilton had no actual notice of the partition, appellant insists that the recitations in the deeds in its chain of title and the evidence of Morris’ occupancy and the general reputation of the partition in the community where the land was situated was sufficient, as a matter of law, to visit them with notice. This proposition is not sound. The evidence by general reputation of the partition was without probative force, unless it was shown that appellee and its grantors knew this general reputation. The most that could be said in appellant’s favor is that this was a controverted issue. The evidence that Morris occupied the land and cut timber therefrom did not constitute notice, because it was entirely consistent with his record title of ownership of an undivided one-third interest in the land. Allday v. Whitaker, supra. It was a mere circumstance to be considered and weighed by the court or jury in connection with the other evidence in the case. The most serious question on the issue of notice, as a matter of law, is the legal effect of the many recitations in appellant’s chain of title, to the effect that Morris had made a partition of the land by appropriating the specific 213 acres. If the law visited appellee and its grantors with notice of these recitations, then, in law, they were not innocent purchasers, and their claim would be limited to the specific 213 acres. Because these recitations were in appellant’s chain of title and not in appellee’s chain of title, appellee insists that the registration of appellant’s deeds was immaterial on the issue of notice, citing in support of this proposition White v. McGregor, 92 Tex. 556, 50 S. W. 564, 565, 71 Am. St. Rep. 875, where Judge Gaines, speaking for our Supireme Court, said: “The registry of a deed is notice only to those who claim through or under the grantor by whom the deed was executed.”

That case does not control this proposition, for in Allday v. Whitaker, supra, discussing the deeds of a cotenant as constituting notice of a parol partition, Judge Stay ton said: “Facts may have existed which would justify a court or jury trying the case to find that the appellant had notice of the parol partition at the time he purchased, but, if so, they are not shown by the record before us. If, after the parol partition, Frank had assumed the right to sell the entire property in the lots on the west side of the railroad, and had done so by many deeds, put upon record before the appellant purchased, and a like right was assumed and often exercised by Cobb as to the lots on the east side, these and like facts might be looked to upon the question of notice to the appellant.”

We construe this language not only as denying the proposition that the recitations in appellant’s chain of .title constituted notice, as a matter of law, but also appellee’s proposition that they were not evidentiary on the issue of notice. Under Allday v. Whitaker, supra, these deeds were evidence on this issue, and it was for the jury to say whether or not, in view of all the circumstances in the case, the recitations in appellant’s chain of title, the lines around the 213 acres, the evidence on the ground of Morris’ occupancy and cutting the timber, and the general reputation of the partition, a man in the exercise of ordinary care would have discovered the partition. That issue was not submitted-to the jury, but was found by the court against appellant’s contention. Under the facts, we would not be authorized tq set the finding aside. It follows that the act of John A. Morris in surveying off the 213 acres and claiming it as his own, in so far as it constituted an equitable partition, passes out of the case.

We will next consider the equities between appellant, holding title to an undivided two-thirds interest in this survey, whose grantors had not appropriated anything from the land, and appellee, holding an undivided one-third interest in the timber, whose remote grantors, John A. Morris and J. O. Toole, had created waste upon the land by cutting and removing therefrom timber of great value. The question is whether or not, in a partition proceeding, equity would compel appellee to account for the value of the timber thus appropriated by its remote grantors. If ap-pellee had owned an undivided one-third interest in the land and timber, and the land had valúe only as agricultural land, and the removal of the timber enhanced its value as such, could it be questioned that equity, in a partition proceeding, would set aside to ap-pellee the 213 acres thus improved by its grantors? In a partition proceeding, if a eotenant is entitled to the improvements made by his grantor, he must also be bound by his waste. This identical proposition was before tlie New Jersey courts in Polhemus v. Emson, 30 N. J. Eq.. 405. On the issue of the equities between appellant and appellee, we consider the facts of that case on all fours with the facts of this case, and, as the court’s discussion presents our view of the law on this issue, we give the opinion in full as follows:

“The facts in this case are fully stated in a former opinion (Polhemus v. Empson, 12 O. E. Green, [27 N. J. Eq.] 190). This suit is brought for relief against a partition which, when the bill was filed, was about to be made at law of a tract of woodland in Ocean county. . The land was held by the complainant and Emanuel Hodson, as tenants in common, from May 1st, 1852, up to August 21st, 1865, when a voluntary partition thereof, by deed, was made between them. In 1801, the defendant recovered a judgment, in the court of common pleas of Ocean county, against Hodson, and, in 1871, under an execution thereon, caused Hodson’s interest in the property to be sold, and purchased it at the sheriff’s sale. After obtaining a deed from the sheriff, he instituted proceedings at law for partition between him and the complainant, and this suit was brought for relief against that partition. In 1809, three years before the sheriff’s sale, Hodson sold the timber off the part of the land which had been assigned to him in the voluntary partition between him and the complainant. On the part assigned to Polhemus, the timber still remained. There were no improvements on the land, and it is of little or no value without the timber. When this cause was brought to final hearing, in 1876, it was decreed that the voluntary partition was binding on Emson, the judgment creditor. This view was not concurred in by the court of errors and appeals (Emson v. Polhemus, 1 Stew. [28 N. J. Eq.] 439), and the decree was, therefore, reversed, and the record remitted to this court, with direction that the cause be proceeded in here according to the law and the practice of this court. A motion was thereupon made in this court to dismiss the bill. It was denied on the ground that the appellate tribunal had not passed upon the question of the right of the complainant to have the partition made on equitable terms. Polhemus v. Emson, 1 Stew. [28 N. J. Eq.] 576. From the order made on that decision, an appeal was taken which resulted in an affirmance. Polhemus v. Emson, 2 Stew. [29 N. J. Eq.] 583. The complainant having amended the prayer of his bill so as more distinctly to ask for partition on equitable terms, the cause again came on for final hearing.

“It is very clear that, unless the wasted part of the land in question is assigned in partition to Emson, a great wrong will be done to Polhemus. There is no doubt that equity can prevent the injustice. If, instead of divesting the part of the land assigned to him' of its timber, and so depriving it of its value, Hodson had put valuable improvements upon it, the purchaser under the judgment would, in equity, have been entitled to the benefit of those improvements. Polhemus would have had no claim, in equity, to them. If Polhemus had wasted his part of the property, he would have been compelled, in equity, to take it in the partition between him and the purchaser under the judgment. Equity requires that a purchaser of a judgment debtor’s interest, as tenant in common of land, should, on the one hand, have the benefit of the equities in favor of the judgment debtor, as between him and his co-tenant; and that, on the other hand, he should take it subject to the equities against the. judgment debtor in respect of waste committed by him.

“The partition will be made under the direction of this court, and the commissioners will be ordered, in making it, to assign to Emson, for or on account of his share, the part assigned to Hodson in the voluntary partition, at the value thereof when that partition was made.”

Though the evidence on the ground did not, as a matter of law, visit appellee and its grantors with notice of the partition made by Morris, because consistent with his record title, it was sufficient to visit all persons holding under Morris, and Morris’ cotenants, with notice that some one or more of the cotenants had committed waste upon the land. Being thus visited with this notice, it must be said, as a matter of law, that, had appellee or its grantors followed up this notice with any sort of diligence, they would have discovered that their remote grantor committed the waste, and that they acquired his title subject to the equitable right in their cotenants to charge them with the waste committed by their remote grantor Morris. Appellee would answer this conclusion by the following argument: “Appellant makes an effort to claim that it should have offset the timber cut by Mr. Morris in the early eighties, basing such contention on the language in Allday v. Whitaker ‘subject to such equities as may arise between tenants in commoh.’ In that case there was then on the land permanent improvements of value and the trial court had denied the right to the value thereof. The case was reversed to have the value of such valuable improvements then on the land adjusted. So that was an entirely different situation from the one now before the court, where timber was cut nearly fifty years ago and where the appellee is a bona fide purchaser in regard thereto. The plain answer to this, however, is that such right of adjustment was at most only an equity that laches long since has quieted. But even if an equity be asserted by Temple the fundamental maxim that, he who seeks equity must do equity, applies. Instead of doing equity, Temple negligently and in reckless disregard of Kirby’s right, as found by the jury, in disregard of the telegrams, in disregard of every conceivable right that Kir: by might have had in the premises, went on this land and destroyed the very property of the cotenancy. As held by the above authorities this amounts to a conversion and Kirby Lumber Company is entitled to recover therefor. If Temple was entitled to any adjustment for timber cut fifty years ago, which we most emphatically deny, the burden was on Temple to show the quantity and value of the timber, and in this respect Temple wholly failed to make plea or proof.”

We do not believe that this argument, is sound. In this case, as in Allday v. Whitaker, there was evidence on the ground of the occupancy of the cotenant who made the equitable partition; the difference between the two cases being that in the Allday Case the evidence of the occupancy was improvements of value, while in this case the evidence of the occupancy constituted waste. This difference does not distinguish the two cases in law.' Appellee correctly asserts that appellant’s right to charge it with the timber cut by Morris “was at most only an equity,” but it erroneously asserts that this right was barred by laches. Appellant’s right to charge ap-pellee with the timber cut by Morris was not subject to the defense of laches. Affecting title to land, laches is not a defense, except where the facts bring the case within the provisions of our statutes of limitations',- and no issue of limitation was raised herein. To have the benefit of this proposition, appellee correctly asserts that it was necessary for appellant to show the quantity and value of the timber cut .by Morris and Toole. This issue was established by showing that the land was of uniform value.

Erom what we have said the judgment of the lower court in favor of appellee must be reversed and judgment here rendered in appellant’s favor.

Appellant has additional propositions constituting reversible error which we do not discuss because of our order reversing and rendering the judgment of the lower court.

Reversed and rendered.