Condra v. Grogan Mfg. Co. ( 1949 )

On Motions for Rehearing

Both parties have filed and orally presented extensive and able motions for rehearing. We write briefly thereon for the purpose of clarifying some of the holdings in the original opinion in this case.

We did not find as a fact nor hold as a matter of law that the Smiths and Condras referred to only the 31.7 acres enclosed by the old field fence, when they referred to “the old home place”. We hold that the evidence was such that a fact issue was raised as to what portion of the entire tract was referred to by the Smiths and Condras when they referred to “the old home place”.

In that portion of the opinion in which it is said that “there is no testimony that the Grogan Company or any of its agents had any actual knowledge or notice of any parol partition of the entire tract”, we used the phrase “actual knowledge or notice” in the sense of express information, as opposed to constructive notice. The evidence did not ■show that the Grogan 'Company had any knowledge of the partition agreement except such knowledge as the law imputed to it 'because of the plaintiffs’ 'possession of the land at the time of Grogan’s purchase.

We adhere to our belief expressed in the original opinion that the law as stated by the Supreme Court in Collum v. Sanger Bros., 98 Tex. 162, 82 S.W. 459, 83 S.W. 184, applies to the facts of this case.

The -motions of all parties for rehearing are overruled.