Burleson v. Burleson , 28 Tex. 383 ( 1866 )

Smith, J.

—The pleadings of the parties to this cause are so lengthy, and the exceptions to them so numerous, covering some one hundred and thirty pages, that we do not deem it our duty to investigate them critically, in order to detect any errors that may have been committed in the rulings of the court, and we will notice such matters only as appear distinctly, and are important to the rights of the parties.

The appellants objected to the depositions of Stephen Jarmon and R. B. Jarmon, upon the ground that the name of the officer talcing them was not consecutively written across the seal. Art. 454, O. & W. Dig., does not direct that the name shall be thus written. We see nothing against the separation of each letter of the name, if it be intelligible. The name of the officer, “Bennett,” is written across the seal. The two last letters of the name are disconnected from those preceding perhaps a fourth of an inch. We think that was caused by writing the name before the envelope was finally closed. It is quite apparent that the two last letters are parts of his name. There was no error in overruling the objection to these depositions.

Whether the deed from Robert J. Moore and wife to George W. Scott and wife was properly acknowledged by her, as a married woman, and certified to hy the notary public, we deem it unnecessary now to determine. The land appears to have been given to Moore and wife jointly by John Burleson, Jr.; and, unexplained, it may be presumed to be community property between them, which he could convey alone. (21 Tex., 247.) But waiving that point, if the deed were not sufficient to affect a partition of the land, then the possession remained with them as joint tenants or tenants in common, and, so far as limitation of three years is concerned, would be as available as if their joint possession had been severed by a valid deed, and each one had held the possession of his part separately.

We see no injury resulting from the depositions of Mitchell and Harris, nor from the introduction of the assessment rolls. The location of Chandler upon the premises was properly received in evidence,- under the averment of the defendant, John Burleson, Jr., that such a claim was upon the land at the date of his purchase from John Burleson, Sr., and that the title was then controverted by Chandler. There was no error in reading them.

We are of opinion that the plaintiffs and intervenors had the right to read the deposition of John Burleson, Sr. It had been taken before he was made defendant, at the instance of the objecting party, John Burleson, Jr., (1 Grenl. on Ev., §§ 167, 418,) and we are unable to see any interest he has with the plaintiffs and intervenors that will disqualify him as a witness for them. His being a party to the suit, of itself, can afford no ground of objection. (O. & W. Dig., Art. 481.)

The court did not err in refusing to receive the two special issues tendered by the intervenors after the jury had returned into court with the verdict. They were not tendered in due time, and for that reason the court might well have refused them. The special issues are made up under the direction of the court, and his action upon them will not be revised here, unless it be necessary to the rights of the parties complaining, and be made to appear that his rights could not have been attained by a general verdict. (O. & W. Dig., Art. 494.)

John Burleson, Sr., the father of the plaintiffs, on the 26th April, 1838, obtained his conditional head-right certificate for one thousand two hundred and eighty acres of land in Bastrop county, and for $300 sold it to Samuel Colver, 13th September, 1838, and obligated himself to make title when the laws of the country would permit, the latter to pay all expenses whatever on the same. The certificate was surveyed upon the- land in suit October 9, 1838, and the field-notes returned to the general land office on the 11th June, 1841. Margaret Burleson, wife of said John Burleson, Sr., and mother of the plaintiffs, died intestate in 1847, and they claim as her heirs one-half of the premises in suit, &c. The defendants set 'up this sale as an outstanding superior title, and the court instructed the jury that, if the sale were made during the lifetime of the mother of the plaintiffs, it would constitute such superior outstanding title, that the plaintiffs took nothing by inheritance at her death, and that they must find a verdict for the defendants.

If this were properly a suit for the recovery of land, as ejectment or trespass to try title, the existence of a paramount outstanding title would constitute a good defense; the plaintiff in such cases must recover upon the strength of his own title, and not on the weakness of the defendant’s. (8 Tex., 443; 10 Id., 503.) In such cases, the parties hold no way'in privity, of estate or possession, and neither is estopped to deny the rights of the other. But it is believed the above rule does not obtain in an equitable proceeding. All persons who may have an interest in the subject-matter or object of a suit in a court of equity must be made parties plaintiff or defendant. (Story Eq. Plead., §72.)

The court of equity has ample power to bring before it all persons interested in the subject of the suit, and adjudicate the rights of all concerned, and settle the rights of all in one final decree. It is a rule, that equity delighteth not in doing justice by halves. It is not to be desired, and is not to the interest of the parties, that this protracted litigatioti shall end between these parties only to be renewed by Colver, whose claim is fully known to the parties and the court.

The case of Hill v. Portis, 14 Tex., 75, was a suit for partition of land, and the defendants set up a superior outstanding equitable title in a third party, and relied upon it as a valid defense; and Mr. Justice Wheeler remarks, that, “if this were an action of ejectment or trespass to try title, it would be sufficient to defeat the plaintiff’s action to show an outstanding paramount title in a third person; but, being an equitable proceeding, it was perhaps necessary for the defendants, to enable them to defeat the plaintiff’s title on the ground of a resulting trust or an equitable title out of the plaintiff, to show either that they had acquired that title, or had some valid defense to urge against it; and, if the latter, the holder of the title must have been made a party before his rights would be adjudicated upon by a court of equity.”

The interest of Colver can be only of an equitable character, and before his title could be noticed for any purpose he should have been made a party, or the defendants should have shown that they owned it, or held under or in some way in connection with it.

There is a reciprocal trust, a fiduciary relationship existing, or that did exist, between Colver, the vendee, and his vendor, or their representatives, different from that which exists between the plaintiff in ej ectment and the owner of an outstanding title, that can be relied upon by the defendant. The vendee, under an executory contract, if the consideration be paid, is regarded as the true owner of the premises, his title is superior to that of the vendor, who could not hold against him. The vendor’s title is a mere shadow when compared with that of the vendee; but still the vendor has a title in the premises, though subordinate to the vendee’s, sufficient to repel the mere intruder, or to recover the possession from him, or any person who does not hold under the vendee, and discards all connection with him, and has no title himself superior to the vendee. (Wright v. Thompson, 14 Tex., 558.)

We must conclude that the court erred in its rulings in respect to the title of Colver. It should not have been noticed in this suit for any purpose, he not being a party to it.

John Burleson, Jr., avers that he purchased of John Burleson, Sr., his entire head-right certificate and the land it was located upon, in the presence of the plaintiffs, who, knowing their rights, fraudulently induced him to purchase, under the impression that he was acquiring clear, valid title to the whole head-right certificate and land, and pleads this as an estoppel in pais.

The deed of transfer purports to convey all his right, title, interest, privileges, and immunities in the conditional certificate for twelve hundred and eighty acres of land, and authorized the vendee to obtain from the county court of Gonzales county -an unconditional certificate for said quantity of land. It may he well contended that this deed only transferred what interest the grantor had at its date, and did not assume to convey any more. It did not transfer the certificate or the land specifically, but his interest in them only, whatever that may have been, without attempting to define or describe what that interest was, whether a fourth, half, or any other proportion; and if that be the proper construction of the deed, it would be held only to pass, or as only attempting to pass, what interest he then had, (July, 1854,) and parol proof would be competent to show what that interest was; it being a latent ambiguity, the explanation of it by parol evidence does not contradict or vary the terms of the written instrument. (Brown v. Jackson, 3 Wheat., 448; Blanchard v. Brooks, 12 Peck, 65.)

We are inclined to the opinion, however, that the true construction of the deed is, that it purports to convey the entire certificate and the land. We must look to the whole deed in determining the intention of the parties, and in doubtful matters it is taken more strongly against the grantor. Here the grantor sets up his title to twelve hundred and eighty acres of land as his head-right, and authorizes the grantee to procure an unconditional certificate for that number of acres. These characteristics seem to indicate strongly that he intended to convey, and the grantee expected to receive, the entire interest in the land and certificate. (Hensley v. Peck, 20 Tex., 673.)

We do not deem it necessary at this time to decide upon the true construction of the deed, or whether parol testimony can be received to show, not what estate the grantor had at the date of the deed, but what was the contract of the parties, and what they intended should pass by it. We will, for the purpose of considering the estoppel in pais, consider the deed as embracing in its terms and meaning the entire certificate and land.

The effect of an estoppel in pais is to prevent the assertion of an unequivocal right, or preclude a good defense, and justice demands that it should not be enforced unless, substantiated in every particular. (12 Barb., 1287.) The ground upon which the estoppel proceeds is fraud, actual or constructive, on the part of the person sought to be estopped. What will amount to the suggestion of a falsehood, or the suppression of the truth, may be difficult to determine in all cases; but some turpitude, some inexcusable wrong, that constituted the direct motive, or induced, the outlay or purchase, is necessary to give silence or acquiescence the force of an estoppel in pais. Hence, the ignorance of the true state of the title on the part of the purchaser must concur with willful misrepresentation .or concealment on the part of the person estopped. (1 Gil., 430.) If the real owner knowingly permit a third person to purchase property without notice of his claim from the apparent owner, he will be estopped from asserting his title against such innocent and bona fide purchaser. (8 B. Monr., 539.)

The true doctrine is well expressed in Story’s Eq., § 386. In order to apply an estoppel, it is indispensable that the party standing by and concealing his rights should be fully apprized of them, and should, by his conduct or gross neglect, encourage or influence the purchaser; for if he be wholly ignorant of his rights, or the purchaser know them, or if his acts, silence, or negligence do not mislead or in any manner affect the transaction, there can be no just inference of actual or constructive fraud on his part. Bights can be lost or forfeited only by such conduct as would make it fraudulent and against conscience to assert them.

If one act in such a manner as intentionally to make another believe that he has no rights, or has abandoned them, and the other, trusting to that belief, does an act which he otherwise would not have done, the fraudulent party will be estopped from asserting his right. (5 Ired. Eq., 355.)

From these authorities, we are of opinion that the plaintiffs and intervenors are not estopped from asserting any rights they may have in the premises from any act, omission, or silence proved on their part at the time the defendant, John Burleson, Jr., purchased the certificate from John Burleson, Sr. It appears that he had full knowledge of the claims of the plaintiffs; he was not deceived as to their rights; they misrepresented nothing; they concealed nothing from him'; they did not disclaim their rights; nor did they in any way give him any reason to believe that they had or would abandon any rights they then had. He made the announcement that he would go home, and return in a short time and see them in respect to their claim to the land. It appears to us that the main groundwork of an estoppel in pais is wanting. There has been no fraud, actual or constructive, practiced by the plaintiffs upon the defendant, John Burleson, Jr. if or does the special verdict of the jury contradict this conclusion; but the general verdict for the defendants may by construction involve a finding to the contrary, and that there was fraud practiced by them. "We believe there was no evidence to authorize such a finding upon the plea of estoppel.

We are of opinion that the patent issued on the — day of September, 1854, to John Burleson, Jr., constituted title in him from the sovereignty of the soil within the meaning of the law in respect to the three years’ limitation. (O. & W. Dig., Art. 1328; Pearson v. Burditt, Austin term, 1862, [26 Tex., 157;] Whitehead v. Poley, ante, 1.)

The laws of this State place the wife’s property in the possession of the husband, and give him the management of it, (0. & W. Dig., Art. 1393,) and he can sue for her separate property in his own name. And it would seem to follow, that suits for property claimed by her may well be instituted against the husband only, and that the institution of this suit April 3, 1857, against George W. Scott and Robert J. Moore, was sufficient to involve the possession and rights of the wife of each of them, and that the running of limitation in their favor ceased at that date. It was suspended by the suit.

Aaron Burleson and James Burleson, though party plaintiffs in this suit, had conveyed their interest in the land before its institution, directly or indirectly, to the intervenors, Howard and Sutton, who intervened and were made parties in their own right May 24, 1859. We are of opinion that limitation, if running at all, was not suspended, as to the shares they owned, until they intervened on the 24th May, 1859. Their interests were not in litigation before that date.

The interest of Abigail Stewart was transferred to and owned by one of the plaintiffs, Jonathan Burleson, at the institution of the suit. That was, after the suit was brought, sold to Gibson, who also intervened and set up his interest. Limitation as to his share was suspended by the suit on April 3, 1857, he being a lis pendens purchaser. If limitation had begun to operate in favor of the defendants, it was suspended at the institution of the suit ón April 3, 1857, as to the interests of Jonathan Burleson and Abigail Stewart, owned by Gibson, Joseph Burleson, Elizabeth Stewart, and Haney Evans.

It was in proof that the tract was subdivided and conveyed to various persons in distinct tracts, and it will be observed that the proof of an adverse and continuous possession of each parcel for three years was not distinctly proved, at least not with that certainty that it should be in order to make out title by the statute of limitation.

We deem it proper to state, that the rights of the plaintiff and the intervenors are purely equitable, and accrued to them at the death of Margaret Burleson, in 1847, nearly twenty years ago. If they desire to enforce them at this late day, they must be prepared to show and do equity themselves. Their rights of inheritance in the community property of their father and deceased mother were not unqualified and absolute, but only attached upon the residue that might be left in the hands of their father after extinguishing the community debts, if there were any. There is no evidence of the community being free of debt, or that there was an administration on her estate. In the absence of any administration, the surviving husband was, for some purposes, the representative of the community, and any sales made by him in good faith, and for the purpose of paying the community debts, or of reimbursing himself for community debts paid by him with his separate funds, would be sustained. (Jones v. Jones, 15 Tex., 143.)

And we are of opinion that the plaintiffs and intervenors must show the amount of community property left at the death of Margaret Burleson, deceased, and what has become of it. They must account for what they have received of the community property and by way of advancements from her or John Burleson, Sr., if anything; and if it be made to appear that either has received an amount equal tó his or her share in the community after the payment of debts, then he or she would not be entitled to any part of the land in suit. It must be made to appear that there is a necessity of resorting to the land in this suit, as the last resort from which they can realize their interests in the community, like a purchaser from one tenant in common of a specific part, by metes and bounds, of an undivided tract of land. A court of equity, in the partition of the land, will protect him in the purchase, if the other tenants in common can be satisfied, by assigning them other parts of the tract equal in value to their interest in the whole tract: and the interest of the vendor will be located upon the part thus sold, and will inure to the benefit of his vendee. Hone of these equitable considerations have been set up by the plaintiffs in their petition, though the defendants have insisted upon them to some extent in their answer.

We see no error in the proceedings had upon the cross-bill of John Burleson, Sr., against his co-defendants, to cancel the deed from him to John Burleson, Jr. We believe the evidence sustained the verdict in that respect.

Because of the errors in the cause as to the plaintiffs and intervenors below, the judgments as to them are reversed, and cause remanded for further proceedings in conformity with this opinion, and the judgment against John Burleson, Sr., in favor of the other defendants below is affirmed.

Ordered accordingly.