Smith v. Taylor , 1946 Tex. App. LEXIS 760 ( 1946 )

STOKES, Justice.

Appellee, M. F. Taylor, filed this suit against the appellant, A. J. Smith, to recover the title and possession of a-lot in the city of Amarillo. The place of residence of the appellant being unknown, he was duly cited by publication and the court appointed an attorney to represent him at the trial. Appellee alleged he was the owner of the lot by a regular chain of transfers from J. H. Gouldy, the common source; that Gouldy conveyed it to the appellant and appellant conveyed it to J. R. Gaut; that Gaut conveyed it to Mrs. Orie Madden, who, on December S, 1945, conveyed it to the appellee. He alleged that the deed from appellant, A. J. Smith, to J. R. Gaut had not been placed of record and the same was lost or misplaced and could not be found.

The attorney appointed by the court filed an answer, consisting of a general denial and plea of not guilty. The case was tried-before the court without the intervention of a jury and resulted in a decree in favor of the appellee, from which an appeal was perfected by the attorney appointed to represent the appellant, and the case is presented here upon the single contention that the court erred in finding and decreeing that appellant executed a deed of conveyance in which the lot in controversy was conveyed to J. R. Gaut, and that the same had been lost or misplaced and could not be found.

Appellee contends the decree entered by the court was amply supported by the testimony and that the facts and circumstances revealed by it established that it was more reasonable to presume that appellant executed a proper deed of conveyance to J. R. Gaut than it was to presume that such a deed had not been executed, and, therefore, the court did not err in entering the decree.

The law is well established in this state that a deed alleged to be lost may be established by circumstantial evidence where it is shown that proper, but futile, search has been made in the places where the deed most likely would be found, and it has several times been held by our courts that a decree establishing an alleged lost deed is warranted where, under the evidence, it is more reasonable to presume the deed had been executed than it was to presume it had not been executed. Generally, the rule is based upon the principle that long and continuous acts of ownership by the supposed grantee, without interference on the part of the former owner, implies that a deed must have been executed or such acts of ownership would not have been permitted by the apparent owner without some kind of interference. The rule is not arbitrary but is subject to another rule equally as well established, namely, that such acts of ownership must have been knowingly acquiesced in by those who hold the apparent adverse title. Although it appears in this case that diligent search was made in the places where the deed would most likely have been found, if it existed it was not found and no trace of it was discovered. There was no testimony by any witness to the effect that a deed from appellant to J. R. Gaut had ever been actually executed. No witness testified that he or anyone else had ever seen such a deed and there was no testimony which even remotely connected appellant with any transaction involving the conveyance of the lot to J. R. Gaut. There was no testimony to the effect that either Gaut or the appellant ever mentioned such a deed or conveyance but appellee’s case rested solely upon acts of ownership by J. R. Gaut. These consisted of an ordinance of the city of Amarillo, entered August 13, 1924, assessing against the lot and Gaut as its owner the sum of $217.50 for the cost of paving the street adjacent to it; a mechanic’s lien executed by J. R. Gaut to Willmering & Mullen, paving contractors, by which he gave a lien on the lot to secure the paving assessment; a deed of trust executed by J. R. Gaut, dated June 9, 1927, conveying the lot to H. A. Moriarity, as trustee to secure the payment of an indebtedness of $560 held by one Herman Schmidt; a deed dated July 23, 1927, by which J. R. Gaut and wife conveyed the lot to Mrs. Orie Madden; a certificate of the Tax Collector of the City of Amarillo to the effect that J. R. Gaut rendered the lot for taxes for the year 1926 and that a receipt therefor was issued to him on January 31, 1927. A release of the paving lien was executed by Willmering & Mullen on August 16, 1926. The deed of trust was released by Herman Schmidt on January 14, 1929, almost eighteen months after the lot had been conveyed to Mrs. Madden by J. R. Gaut, The testimony showed that the lot was vacant, containing no improvements, and had never been occupied by anyone except, at some unknown date, a neighbor placed a fence around a portion of it, and, for a few years, used that portion as a garden. The deeds and instruments mentioned were all executed within a period of about three years and the first one was dated some twelve years after the lot was conveyed by Gouldy to appellant, A. J. Smith. Thus, it will be seen that not only was there no testimony to the effect that appellant Smith ever cx-ecuted a deed to the lot but no act was performed by Gaut in respect to possession or otherwise that would have the effect of charging Smith with imputed notice that Gaut was claiming title to it. We doubt if the three years during which Gaut exercised acts of ownership could be •considered the long and continued claim ■of title which is one element of the condition necessary to raise a presumption of ownership under the circumstances here involved, but even if it could be so considered, there is nothing in the testimony to .indicate that such acts and claims were known to the appellant or that he acquiesced in any of them, and, as we have said, such acts of ownership alone, without such knowledge and acquiescence of the appellant, and without some proof that a deed was actually executed, are not sufficient ,to constitute the basis for such a presumption. Baldwin v. Goldfrank, 88 Tex. 249, 31 S.W. 1064; Magee v. Paul, 110 Tex. 470, 221 S.W. 256; Bounds v. Little, 79 Tex. 128, 15 S.W. 225; Whelan v. Henderson, Tex.Civ.App., 137 S.W.2d 150; Tayloe v. Riggs, 1 Pet. 591, 7 L.Ed. 275, 279.

In Baldwin v. Goldfrank, supra [88 Tex. 249, 31 S.W. 1066], it was said by our Supreme Court: “In many courts it is held that proof of possession under the deed is necessary in order to establish such presumption. The rule that a deed or a power may be presumed after a long lapse of time is not an arbitrary one. It does not rest upon any consideration of public policy with reference to quieting titles to property. It has its just foundation in the principle that long and continuous acts of ownership, acquiesced in knowingly by those who hold an apparently adverse title, lead to the conclusion that the persons so exercising such acts have acquired the title.’’

If J. R. Gaut had occupied the lot here involved or performed acts of open notorious and adverse possession for a reasonable length of time, it might be that ap-pellee could have established a presumption that appellant must have known of it and acquiesced in it. That is a question that is not before us and we are not passing upon it. As we have said, there was no such testimony and, in our opinion, the acts of ownership that were performed by Gaut were not of such a nature as to charge appellant with notice that Gaut was claiming the property.

Appellee relies upon the case of Bounds v. Little, 75 Tex. 316, 12 S.W. 1109. That case involved a deed which was alleged to have been lost but the case was reversed because it was not shown that proper search for it had been made. The case again reached the Supreme Court and is reported in 79 Tex. 128, 15 S.W. 225, and from the opinion upon the last appeal, it is clear that the holding of the court, to the effect that sufficient proof had'been offered to form the basis of a presumption that the alleged lost deed had actually been executed, was not based alone upon acts of ownership by the alleged grantee. The alleged lost deed in that case was alleged to have been executed by Mary A. Little, by ■which she conveyed a 200-acre tract to her son, Robert J. Little, and the opinion reveals that Robert J. Little had simultaneously conveyed another tract to his mother, Mary A. Little, and in his deed the consideration was recited as being certain cash “and the further consideration of 200 acres of land described in a deed from Mary A. Little to himself of even date therewith”. It is shown also that a number of witnesses testified to facts which included admissions made by Mary A. Little and her devisee, which tended to prove she had executed to Robert J. Little the alleged lost deed. It was also shown that the defendant, Bounds, had notice of that fact before he bought or paid for the land. It is evident that the Supreme Court considered those facts and circumstances sufficient to establish not only the presumption that .such a deed had been executed but that Mary A. Little had made admissions which tended to prove she had executed the alleged lost deed.

There have been many decisions of our courts involving the question of lost deeds and it has a number of times been held that an alleged lost deed may be established by circumstantial evidence. .In some of the cases, the question of knowledge and acquiescence by the alleged grantor of the acts of ownership by a supposed grantee seem not to have been in issue, but in all of the cases we have examined, where that phase of the question was involved, our courts have consistently held that there must be something in the evidence which reveals the knowledge and acquiescence of the alleged grantor or that is sufficient, at least, to put him upon notice that the alleged grantee was claiming title to the property. Such notice or actual knowledge and acquiescence not having been established in this case, and there being no testimony of any acts or circumstances that would charge appellant with notice that J. R. Gaut or any other person was claiming title to the lot in controversy, we are forced to the conclusion that the appellee was not entitled to the decree rendered in his favor by the court below. The judgment will, therefore, be reversed and the cause remanded.