Temple Lumber Co. v. Kirby Lumber Co. , 1931 Tex. App. LEXIS 1556 ( 1931 )

On Rehearing.

While not filing a motion for rehearing, appellant has asked us to reverse our judgment, affirming the conclusion of the trial court that appellee bought its one-third undivided interest in the Ogden survey without notice of the parol partition made by Morris. The material facts on this issue are reflected by the original opinion. We agree with appellant that uncontroverted testimony, with nothing in the record to detract from its weight, must be taken as true, and that the trial judge and jury cannot disregard it in making their findings of fact. McKeever v. Dittman (Tex. Civ. App.) 262 S. W. 1054; Thomas & Co. v. Hawthorne (Tex. Civ. App.) 245 S. W. 966; Funk v. Walker (Tex. Civ. App.) 241 S. W. 720; Gulf, C. & S. F. Railway Co. v. Gaddis (Tex. Com. App.) 208 S. W. 895. But this proposition is controlling where only one inference can be drawn from the admitted or undisputed facts; otherwise the ultimate conclusion of the trial court or jury is binding on the appellate court, unless set aside as being so against the great weight and preponderance of the testimony as to be clearly wrong. This principle is well illustrated by the holding of our courts on the issue of contributory negligence, as in Trochta v. Railway (Tex. Com. App.) 218 S. W. 1038. In that case the issue was as to the proper conclusion to be drawn from the facts. The jury finding that the deceased was not guilty of contributory negligence was affirmed by the Supreme Court. So in this case the issue, as in contributory negligence cases, was the duty imposed upon a man of ordinary care. We think on this issue it was for the trial court or the jury to determine the inference arising from the undisputed facts.

Supplementing the proposition just discussed, appellant says that the recitals in the deeds, “if entitled to be considered at all,” were sufficient, in connection with the other facts, to put appellee upon inquiry, citing Jones v. Berg, 105 Wash. 69, 177 P. 712; 20 R. C. L. 353. This proposition made a strong appeal to the court on original submission, but we thought it was met and answered by the quotation made by us from Allday v. Whitaker, where facts much stronger were summarized by the court and held only to raise the issue for the jury. On this issue appellant has not commented on the holding in Allday v. Whitaker.

Also, appellant advances the following additional proposition, which we cannot sustain: “It being undisputed that on December 10, 1881, appellant’s predecessor in title selected out and conveyed to appellant’s remote grantor a particular tract of the Ogden Survey, leaving a sufficient amount of land to satisfy the claim of the owner of the remaining 2/6ths interest, which is now held by appellee, such conveyance was valid, and at the most was voidable only at the instance of the other co-tenant, and then only on showing that his right was thereby prejudiced; and in order to avoid the conveyance of this specific tract of 427 acres to Weatherred, and in order for it to recover, it was incumbent on appellee to show that the partition thereby effected of the land was at that time inequitable and unfair ; and this it did not do and under the undisputed proof could not have done.”

This proposition ignores the fact that ap-pellee was an innocent purchaser against the parol partition made by Morris and the fact that appellee had no notice that appellant’s predecessor in title selected out and conveyed to it a specific 427 acres. If the record were sufficient to visit appellee with notice that appellant’s predecessor in title conveyed a specific 427 acres, the record would also' he sufficient to give it notice of the Morris partition, and this notice would end the case. This proposition could have controlling effect only if the record showed that appellee and those under whom it holds acquired their undivided one-third interest in this land with knowledge that, when appellant’s predecessor in title conveyed to it the specific 427 acres, the entire survey was of equal value, acre for acre. McKey v. Welch, 22 Tex. 390.

Also on rehearing appellant insists that a purchaser from a tenant in common takes his' interest burdened with all existing equities, “and this, regardless of the question of notice,” citing Clark Bros. v. Watson, 180 Iowa, 721, 163 N. W. 463; Nickels v. Miller, 126 Va. 59, 101 g. E. 68; Peets v. Wright, 117 S. C. 409, 109 S. E. 649. Allday v. Whitaker expressly denies this proposition in so far as it relates to an equitable partition. However, the Supreme Court was careful in that case to limit its holding to the issue of partition by saying that, though one may be an innocent holder against an equitable partition between his grantor and his grantor’s coten-ants, yet the purchaser acquires his interest “subject to such equities as may arise between tenants in common.”' In view of the fact that we are convinced beyond a shadow of doubt that appellee was visited, as a matter of law, with notice of the waste committed by his remote grantors, we do not deem it necessary to determine the merits of this proposition, as a principle of the jurisprudence of this state.

This brings us to a discussion of appellee’s proposition that the language quoted above from Allday v. Whitaker that one purchasing from a tenant in common acquires his title subject to* existing equities means equities' that “may arise between them in personam, and not in rem.” We understand that appel-lee advances this proposition only on the theory that it was an innocent purchaser against the existing equities; so, as we have held against it on that theory, this proposition passes out of the case.

However, appellee vigorously asserts that we are in error in our conclusion that it was visited by ldw with notice that its remote vendors committed waste upon the 213 acres set apart to it by appellant. Thus it says a trespasser may have cut the timber, meaning that the physical facts -on the ground were not sufficient to show that the timber was cut by its remote grantors when in fact it may have been cut by a trespasser. This contention is without merit. While ordinarily the question of notice is a jury question, as we hold above, yet, when certain facts are called to a purchaser’s attention, sufficient, if followed up with diligence, to visit him with notice of existing equities, the law visits him with such notice as fully as if the equities had been directly called to his attention. This is the doctrine of Bounds v. Little, 75 Tex. 320. 12 S. W. 1109.

Also appellee says we are in conflict with Allday v. Whitaker, which holds that the interest of a tenant in common may pass to a bona fide purchaser, and “this court now holds conflicting therewith in holding that appellee is chargeable with equities unknown to it.” We expressly recognize the force of Allday v. Whitaker, and predicate our holding thereon that appellee was not visited with notice of the parol partition made by Morris. But, as said above, the Supreme Court expressly limited that case to the issue of partition. In our original opinion we found that appellee was visited with notice of the waste because it was' compelled, as a matter of law, to know that timber had been cut and removed from the 213 acres, and was also compelled by law to follow up this information, which, had it been duly prosecuted, would have led to the fact that the timber on the 213 acres was cut by Morris.

Appellee apparently concedes that between Morris and his cotenants he was bound to account for his waste. Thus it cites Davis v. Palmer, 78 N. J. Eq. 78, 81 A. 573, 574, and Woolston v. Pullen, 88 N. J. Eq. 35,102 A. 461, 462, both cases citing Polhemus v. Emson, cited by us in our original opinion. In the Davis Case the court said: “The rule of equity is well settled that where one tenant in common * * . * has wasted a portion [of the land] * * * the partition often must be made so as to recognize all equities.”

In the Woolston Case it is said: “Where one of the tenants has wasted part of the land, the part so wasted will be set off to him.”

However, appellee would distinguish these cases on the ground that: “Neither case involved a bona fide purchaser. Both suits were for partition. This case does involve a bona fide purchaser. This case is not for partition,”

While not a suit for partition, yet, as we say in our original opinion, appellee has only such rights as could be asserted in a partition suit, that is, the right for an accounting. If we are correct in visiting ap-pellee with notice of the cutting by Morris and Toole, of course, this case does not involve a bona fide purchaser. We think the Polhemus Case, as well as the two new cases cited by appellee, directly support our conclusion. See, also, Campbell v. Campbell (Tex. Civ. App.) 145 S. W. 638 and Stuart v. Teagarden (Tex. Civ. App.) 193 S. W. 416.

In our original opinion we said: “There was no sign of timber cutting on any other part of the 640 acres.” We took this statement, as we liad a right to 'do under the rules, from appellant’s brief, and assumed it was correct because it was not challenged by appellee. However, as appellee now shows that one McGown cut some timber from the 427 acres, we correct our opinion to reflect the true facts. But the issue is immaterial. Appellant left for appellee’s use all the timber on the 213 acres claimed by Morris, which was, at the time Morris owned it, of equal, value, acre per acre, with the balance of the timber. So it becomes immaterial' that some one may have cut timber from the 427 acres. Whether the cutting was much or little, appellant has not charged it against appellee. Ap-pellee and its grantors were entitled to one-third of the timber on the' entire survey. By giving appellee the timber on the 213 acres and charging it with the timber cut by Morris and Toole, appellant has done it no wrong. This is all we meant in our original opinion where we said: “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.”

Appellee is therefore in error in saying that we have charged it with all of the cutting. Our judgment charges it only with the cutting from the 213 acres.

By visiting it with knowledge of equities not subject to registration, appellee insists we are in conflict with the registration statutes. This proposition would be before us only if we had held with appellant’s contention that appellee was chargeable, as a matter of law, with the waste committed by Morris and Toole, “and this regardless of the question of notice.” But, since we are holding that the physical facts upon the ground visited appellee with notice, the registration statutes are not in issue.

Appellee also insists that we are in error in refusing to hold that the equities now asserted by appellant were barred by laches. In Jackson v. Beach (N. J. Err. & App.) 3 A. 375, the court said that an accounting for waste, by cutting and carrying away timbex-, against a tenant in common, “is not barred by the statute of limitations.” If not subject to the statutes of limitation, this equity could not be within the equitable rule of laches.

Finally, appellee says our judgment cannot stand, “because there was no pleading upon which any such judgment could be based”; and, further, that we erred in holding “that an action for damages for trespass is a partition proceeding.” On this issue we say in our original option 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. It was not our thought that appellee’s suit was one for partition. In fact, it was not. Appellee now, as on original submission, insists that its suit was “for damages for trespass.” But, even if appellee is correct in this contention, our judgment would not be error. Appellee could only prove a trespass against appellant as its cotenant by pleading and proving an ouster; that is, that appellant had entered and wrongfully denied it the right of entry. A complete defense to a charge of ouster was available to appellant under its general denial, and was sustained by the proof actually made in this case.that it had not wrongfully denied appellee entry on the 427 acres because equity would compel it to confine its entry to the 213 acres; not on the ground that the 213 acres had been set apart to its remote grantors by a parol partition, but because it bought its undivided interest with knowledge that they had committed waste upon the specific 213 acres at a time when the timber thereon was of equal value, acre per acre, with the timber on the remaining 427 acres. As sustaining its argument that appellant could not have the relief we have granted it without affirmatively pleading its equities, appellee cites McKey v. Welch, supra ; Peak v. Brinson, 71 Tex. 315, 11 S. W. 269; and Allen v. Allen, 101 Tex. 367, 107 S. W. 528. In the cases cited the court merely held that the defendant could not have affirmative relief on the particular issues discussed without praying for such relief. The issue of affirmative relief is not involved in-this case. If appellee pleaded a trespass, it was required to prove a trespass, and to meet that issue appellant was entitled under its general denial to offer all testimony rebutting that theory of the case. Therefore, under its pleading, it was available for appellant to prove, as it did prove, that it had left for the use of appellee its full one-third interest in the timber; and this, not as the basis for affirmative relief, but only to rebut appellee’s theory of the case. This proof was not in the nature of a confession and avoidance, nor in the nature of settlement or offset, but was merely proof negativing appellee’s theory that it had committed the offense charged against it. Under this proof, on the theory of trespass, appellant was not seeking credit against appellee nor seeking to offset any demand appellee had against it, but merely to show that it was not guilty of ousting ap-pellee from any rightful possession it had in and to the Ogden 640 acres. The legal effect of our judgment in favor of appellant is merely to find it not guilty of the trespass which appellee would charge against it. So, as the judgment grants no affirmative relief, it has full support in appellant’s general denial. Horton & Horton v. House (Tex. Com. App.) 29 S.W.(2d) 984.

But we think appellee is' in error in this construction of its petition. The material allegations of the petition may he thus summarized. Both appellee and appellant were alleged to be corporations; appellee owned an undivided one-third interest in certain timber on 'the Ogden survey, the timber being fully described; “that after-wards, to-wit: on or about the said 15th day of October, 1924, and on various and sundry dates subsequent thereto, the defendant Temple Lumber Company entered upon said tract of land and cut and removed therefrom, and damaged and destroyed eleven million: feet, log scale, of pine trees and timber eight inches and upwards in diameter at the stump twelve inches from the ground, and twenty-five thousand feet of hardwood trees and timber six inches and upwards in diameter at the stump, twelve inches from the ground, and appropriated and converted the same to its, said defendant’s use and benefit”; before the timber was cut appellee notified appellant of its title and claim and protested appellant’s right to cut the timber; the timber was cut and removed in reckless disregard of appellee’s rights, as appellant had no title to appellee’s one-third undivided interest; the value of the stumpage was alleged to be $15 per thousand and of the manufactured lumber $30 per thousand; the damages were fixed at $110,250, with interest from the date of the cutting; the prayer was for the damages pleaded and for general and special relief. It is the law of this state that a cotenant may maintain an action 'against his cotenant for trespass, but, to constitute a trespass, he must allege an ouster; that is, he must allege that his cotenant entered the common property, denying him the right of entry. Kishi v. Humble Oil & Refining Co. (Tex. Civ. App.) 261 S. W. 288; Van Deventer v. Gulf Production Co. (Tex. Civ. App.) 41 S.W.(2d) 1029. This is necessarily the rule, for all cotenants have equally the right of entry, and, unless an exclusive entry is alleged there is no trespass. In this case appellee alleged title to an undivided one-third interest. There is no allegation that appellant entered denying it the right of entry, nor is there an allegation that appellant cut all the timber from the entire survey, claiming ownership therein and denying ownership in appellee. So, as appellant had the right to enter under appellee’s allegations, the petition should be construed merely as an action for accounting on the theory that appellant cut more than its part of the timber. By indulging its general intendments, the petition was only subject to this construction. The general denial controverted all issues raised by the petition as thus construed. 1 C. J. 630; Coburn v. Coke, 193 Ala. 364, 69 So. 574.

The motion for réhearing is in all things overruled.