This is a statutory action of trespass to try title for the recovery of the title and possession to a tract of 407 acres of land described as Survey 103, Block 194, T. C. Railway Company in Pecos County, Texas, and to recover damages growing out of the waste and wrongful appropriation of royalty oil and gas produced from such land. The royalty on the oil amounted to $431,067.15 on May 1, 1930.
The suit was instituted by plaintiff in error, Permian Oil Company, remote vendee of Hickox, as plaintiff, against Mrs. M. A. Smith, surviving widow, sole devisee and independent executrix of the estate of her deceased first husband, John Monroe, and against her second husband, M. A. Smith, and her immediate vendees, and the oil and pipe line companies running oil from such survey.
Mrs. Monroe Smith died before the trial of the case, and the administrator of her estate and her heirs were properly substituted as parties defendant.
Upon a trial with a jury plaintiff in error, by proper documentary evidence, established a regular chain of title from the State of Texas down to John Monroe, vesting in him title to Section 103, Block 194, T. C. Railway Company, and Section 35, Block 194, G. C. S. F. Railroad Company in Pecos County, Texas. *Page 420
Plaintiff in error offered in evidence the following additional documentary evidence:
1. The original petition filed by John Monroe on August 22, 1910, showing a statutory action of trespass to try title in Cause No. 854, styled John Monroe, plaintiff, vs. T. F. Hickox, defendant, in the District Court of Pecos County, Texas, for the title and possession of three tracts of land situated in said county, being all of Section 104, Block 194, T. C. Railway Company, original grantee, a part of Section 103, Block 194, T. C. Railway Company, original grantee, and a part of Survey 35, Block 194, G. C. S. F. Ry. Company, original grantee.
2. The first amended original petition filed by John Monroe on February 28, 1911, in a statutory form of trespass to try title in said Cause No. 854, said amended petition being as follows:
"In the District Court of Pecos County, Texas,
February Term A.D. 1911. John Monroe vs. T. F. Hickox, No. 854.
"To the Honorable District Court of Said County:
"Now comes John Monroe who resides in Pecos County, Texas, hereinafter called plaintiff, and leave of the Court having first been had and obtained, files this his first amended original petition and complains of T. F. Hickox, hereinafter styled defendant, and for cause of action, plaintiff represents to the Court that on or about the 21st day of April A.D. 1909, he was lawfully seized and possessed of the following described land and premises, situated in the County of Pecos, State of Texas, holding and claiming the same in fee simple, to-wit:
1st. "All of Section No. 104, Block 194, T. C. Ry. Co. original grantee, situated in Pecos County, Texas.
2nd. "All of Section No. 103, Block 194, T. C. Ry. Co. original grantee situated in Pecos County, Texas, described as follows:
"Beginning at a stake and mound at the N.E. Cor. of Sur. No. 102, Blk. 194, T. C. R. R. Co., Cert. 2302, for the N.W. Cor. of this survey.
"Thence east 1900 vrs. to a stake and mound for the N.E. Cor. of this survey.
"Thence south 1209 vrs. to a stk. and md. for the S.E. Cor. of this survey.
"Thence West 1900 vrs. to a stk. and md. for the S.W. Cor. of this survey. *Page 421
"Thence North 1209 vrs. to the place of beginning. And said Section No. 104, Block No. 194, T.C. Ry. Co. is described by metes and bounds as follows, to-wit:
"Beginning at a stake and mound at the N.E. Cor. of Survey No. 103, Block No. 194, for the N.W. Cor. of this survey.
"Thence East 1900 vrs. to stake and mound for N.E. Cor. of this survey.
"Thence South 1209 vrs. to stake and mound for S.E. Cor. of this survey; thence West 1900 vrs. to stake and mound for S.W. Cor. of this survey; thence North 1209 vrs. to the place of beginning.
"That on the day and year last aforesaid, defendant unlawfully entered upon the premises and ejected plaintiff therefrom and unlawfully, withholds from him the possession thereof to his damage in the sum of $2,000.00. That the reasonable rental value of said land and premises is $100.00 per annum; that on the date that defendant entered upon plaintiff's said land, plaintiff had on same a wire fence composed of wire nailed on the posts set in the ground, that defendant has since said date, broke, tore down and destroyed plaintiff's said fence and the posts and wire composing the same, to the plaintiff's damage in the sum of $100.00.
"Therefore, plaintiff prays judgment of the court that inasmuch as the defendant has been duly cited to appear and answer this petition, that plaintiff have judgment for the title and possession of said lands and premises above described, and that writ of restitution issue, and for his rents, damages and costs of this suit, and for such other relief, special and general, in law and in equity, that he may be justly entitled to, etc."
3. The original answer of defendant T. F. Hickox in said cause, which consisted of a general denial, and a plea of not guilty.
4. The judgment rendered and entered in the minutes of the district court of Pecos County in said Cause No. 854, which is as follows:
"In the District Court of Pecos County, Texas.
Feb. Term 1911. John Monroe vs. T. F. Hickox. No. 854.
"On the 28th day of February A.D. 1911, came on to be heard the above numbered and entitled cause in its regular order on the docket, and thereupon came the plaintiff in person and by attorney, and also came the defendant in person and by attorney, and all parties announced ready for trial, and no jury having been demanded and all issues of law and fact being *Page 422 submitted to the court, the pleadings were thereupon read, the evidence introduced and argument of counsel made, and the court after hearing same, thereafter on the 4th day of March A.D. 1911, in open court pronounced judgment in favor of the defendant. It is therefore ordered, adjudged and decreed by the court that the plaintiff John Monroe take nothing by his suit against the defendant T. F. Hickox, and that the defendant T. F. Hickox, go hence without day and recover against the plaintiff John Monroe all costs of suit, for which execution will issue. To which judgment of the court the plaintiff John Monroe in open court excepted and gave notice of appeal to the Court of Civil Appeals of the 4th Supreme Judicial District of Texas, sitting at San Antonio, Texas, and upon plaintiff's request and good cause being shown he is hereby given sixty days after the adjournment of this court within which to file his statement of facts herein."
5. Probate proceedings in the estate of T. F. Hickox, including his probated will, whereby he devised all of his estate to his surviving wife, Leona A. Hickox, and appointed her independent executrix.
6. A regular chain of title from Mrs. Leona A. Hickox individually and as sole devisee and independent executrix of the will and estate of her deceased husband, T. F. Hickox, to plaintiff in error, Permian Oil Company.
7. Parol and written evidence of the location on the ground of Survey 103.
8. Evidence of the amount and value of the oil produced from Survey 103, the 1/8 royalty oil produced from said land from September 16, 1927, to May 31, 1930, amounted to 586,014.25 barrels, of the market value of $431,067.15.
Objections were made by some of the defendants to the pleadings and judgment in Cause No. 854, Monroe v. Hickox. These objections were overruled at the time the evidence was offered, and these records were admitted in evidence. At the conclusion of the testimony offered by plaintiff in error, the defendants in error, with the exception of the oil and pipe line companies, presented a motion to strike out the pleadings and judgment in Cause No. 854, John Monroe v. T. F. Hickox, introduced in evidence by plaintiff in error as a link in its chain of title; and said defendants also moved that the jury be peremptorily instructed to return a verdict in their favor.
In support of the motion of defendants in error, Jerry Monroe, et al., to strike out such pleadings and judgment, they *Page 423 tendered, and the trial court considered in evidence, the papers in Cause No. 854, Monroe v. Hickox, including the findings of fact and conclusions of law. Such findings of fact and conclusions of law are as follows:
"FINDINGS OF FACT. "1. Block C-4, G. C. S. F. Ry. Co., is composed of sixty-four surveys. The field notes show that they were all made by H. C. Barton, Deputy Surveyor of Pecos County, between the 5th and 20th days of October, 1881. According to the field notes of Survey No. 4, of this block, the Northwest corner was marked as follows: 'Pile of pebbles for the N.E. Corner of Survey No. 3, this block from which capstone mountain bears south 1500 varas,' the Northeast corner is described as 'Stone mound from which capstone mountain bears S. 19 E and another capstone mountain bears N. 70 E.' Corners answering to this description were found on the ground located relatively as shown in the sketch of surveyor W. T. Hope.
"2. Block Z, Texas Central Railway Company is composed of fifty-four surveys. They were made by F. Schadowsky, between the 4th and 8th days of November, 1882. The beginning calls of this block tie on to Block C-4. There is no testimony locating this block on the ground.
"3. Block 194, G. C. S. F. Ry. Company is composed of One Hundred surveys, the record showing they were made by L. W. Durrell, Deputy Surveyor of Pecos County, between the 17th and 31st days of May, 1883. It appears that he made fifteen surveys on each of the first six days and ten surveys on the seventh day. The beginning calls of this block tie on to Block Z, G. C. S. F. Railway but there is no testimony locating on the ground any of the original land marks called for in the field notes.
"3. Block No. 178, Texas Central Railway company is composed of thirty-six surveys, the record showing they were made by L. W. Durrell, Deputy Surveyor of Pecos County. The first eighteen of these surveys appear to have been made on November 21, 1882, and the last eighteen made on November, 22, 1882. The beginning call starts at river survey at No. 543, in the name of H. G. N. Railway company. None of the land marks called for by the field notes of this block were located on the ground by any of the testimony.
"4. The river surveys shown on the map of surveyor W. T. Hope were made in the year 1876 by Jacob Kuechler, Deputy Surveyor of Pecos County Survey 4 of Block C-4, G. C. S. F. Railway Company was located on the ground from objects found corresponding to the calls for its northeast and northwest *Page 424 corners relatively as shown on Hope's map. Survey 71, I. G. N. Railway on the Pecos River was located on the ground relatively as shown in the map of surveyor W. T. Hope, with its Northwest corner marked by stone mound; there is no call in the field notes for a stone mound at this point. Survey No. 51, I. G. N. Railway was located on the ground relatively as shown on Hope's map by course and distance from the Northwest corner of Survey 71, established as aforesaid, and its location verified by a call of its field notes for road on a mesa. Survey No. 3, Runnels county school land was located on the ground by course and distance based on Surveys 71 and 61, which were located on the ground as aforesaid. All of these locations were made on the ground by surveyor W. T. Hope and were based on actual runnings as shown by the red lines delineated on his map. The balance of the surveys shown on the map of surveyor Hope were platted in by him according to their calls for course and distance based on his actual work on the ground shown by the red lines, and with relation to the aforesaid land marks.
"5. By beginning at the Northeast corner of Survey 4, Block C-4, G. C. S. F. Railway Company, as found on the ground, and running by course and distance and thereby locating surveys 103 and 104, Texas Central Railway; these two surveys would lie adjoining and immediately south of Survey 3, Runnels County School land, and would not conflict with surveys 34 and 35, Texas Central Railway.
"6. By constructing Block 194, G. C. S. F. Railway, based on the calls for the river surveys, as located on the ground Surveys 34 and 35, G. C. S. F. Railway Company, Block 194 would lie adjoining and immediately south of Survey No. 3, Runnels County School land and be in total conflict with surveys 103 and 104.
"7. Surveys 103 and 104 being the land sued for by plaintiff, are junior surveys to surveys 34 and 35.
"8. I am unable to follow the footsteps of the original surveyor in establishing Block 194, G. C. S. F. Ry. either in the original locations of any of the sections or in the location of the corrected surveys, and I am unable to ascertain the true intention of the original surveyor as to locating this block on the ground.
"9. I am unable from the testimony in evidence to ascertain the true location on the ground of Surveys Nos. 103, 104, 34 and 35 above referred to.
"10. I find that Block 194, G. C. S. F. Railway was originally located by an office survey. *Page 425
"11. I find that the calls of block 194 to tie to Block Z and its calls to tie on to the river surveys are repugant to each other and inconsistent, and I am unable to determine which of these calls should be regarded as a mistake of the surveyor.
"12. I find that the plaintiff is the legal owner and holder of the fee simple title to Survey No. 103, Texas Central Railway and that he holds survey No. 104, under a contract of purchase from the State of Texas, in accordance with the school land laws and that he has made his proof of occupancy thereon as required by law, and that his said sale is in good standing.
"13. Defendant is the holder and entitled to the possession of Survey No. 34, under a contract of purchase from the State of Texas, in accordance with the school land laws, and his sale is in good standing.
"14. The said Hope map is hereby referred to and made a part hereof."
"CONCLUSIONS OF LAW. "1. The burden of proof is upon the plaintiff to establish the location of the two tracts of land sued for upon the ground, and to show that there is no conflict between said surveys and surveys numbers 34 and 35, the said surveys numbers 34 and 35 being senior surveys.
"2. It is presumed that the work of an official surveyor was actually done on the ground, but the amount of work he certified to having done within a given time, the character of the work as called for by the field notes, and the lack of evidence found on the ground, discrepances in distances betwen objects called for and the like, may be sufficient to rebut said presumption.
"3. Where there are two theories upon which a survey which is not fixed to the ground by any of its calls can be constructed, and one theory shows a conflict between a senior and a junior survey, and the other theory shows no conflict between them and the evidence, aided by the presumptions of law, furnishes no method for following the footsteps of the original surveyor or for arriving at the intent and purpose of the original surveyor, the presumption of law will be resolved in favor of the senior survey that there is a conflict, the owner of the junior survey being the plaintiff.
"4. Having found as a fact that the location of surveys numbers 34 and 35, and 103 and 104, cannot be located upon the ground from the testimony in evidence and that there is a total conflict between them based on certain calls and no conflict based on other calls which theories are irreconcilable and the true theory unascertainable from the testimony, I conclude *Page 426 that the plaintiff should take naught by this suit and that the defendant should recover his costs herein."
Plaintiff in error requested the court to submit the case to the jury on special issues, but the request was overruled. Thereupon it moved the court to instruct peremptorily the jury to render a verdict in its favor against the oil and pipe line companies; this motion was also overruled.
The trial court sustained the motion of Jerry Monroe, et al., and struck from the evidence the pleadings and judgment in Cause No. 854, John Monroe v. T. F. Hickox, to which action and ruling plaintiff duly excepted. The court then on motion of certain defendants, and of his own motion, instructed the jury to return a verdict for defendants in error, and upon such instructed verdict judgment was accordingly rendered against plaintiff in error.
Plaintiff in error duly prosecuted its writ of error to the Court of Civil Appeals at El Paso. This resulted in an affirmance of the judgment of the trial court.
The voluminous nature of the record in this case will appear from a recital of the fact that the writ of error filed in this Court consists of nearly 400 pages, while the briefs of all the parties total more than 3000 pages.
There are a number of legal questions presented for determination. The main question is whether the judgment in Cause No. 854, Monroe v. Hickox, constituted a valid muniment in plaintiff in error's chain of title.
Defendants in error seek to sustain the action of the trial court in excluding the judgment in Cause No. 854, Monroe v. Hickox, upon the following grounds:
a. It is proper to construe said judgment in the light of the findings of fact and conclusions of law and when so construed the judgment must be declared void because it determines and settles nothing.
b. The record in said cause shows that the plaintiff's suit was one of boundary and that it was tried and determined as such by the court.
c. The judgment in said cause is void because when interpreted in the light of the pleadings and the findings of fact and conclusions of law there is not sufficient description of any land as will permit its being identified and located on the ground.
d. Monroe's first amended petition in Cause No. 854 was insufficient to support a judgment for either party, since it failed to meet the essential requirements of subdivision 2, Article 7366, R. S. 1925, which is the same as subdivision 2, *Page 427 Article 5250, R. S. 1895, which was in force at the time said judgment was rendered.
e. In said Cause No. 854 the defendant Hickox successfully maintained that the boundaries called for in the patent for Section 103 owned by Monroe were in conflict with Survey 34 (the senior survey) owned by Hickox, and that inasmuch as Hickox has long since parted with his title to Survey 34, those claiming under him should not now be heard to say that Section 103 is not a part of Survey 34.
Defendants in error further assert that the judgment in Cause No. 854, Monroe v. Hickox, was not admissible in evidence against defendants in error H. B. Davenport, Nellie M. Hill and husband, J. R. Hill, Sam K. Viersen, K. N. Hapgood, Frank T. Pickrell, Max Gutman and Benjamin Gutman, J. A. Chapman, Peerless Oil Gas Company, Metropolitan Royalty Corporation, G. S. Davis, J. R. Parten, Marland Employees Royalty Company, Southland Royalty Company and Empire Gas Fuel Company for the following reasons:
1. Because said judgment was not recorded in the office of the county clerk of Pecos County, Texas, as required by Article 6638, R. S. 1925, and Article 6835, R. S. 1911, prior to the time the above named defendants in error purchased their mineral interest and mineral estate from Mrs. M. A. Smith and her husband.
2. The entry of a judgment in the minutes of the District Court of Pecos County should not be construed to constitute a recording of such judgment in the office of the county clerk as required by the above named articles.
3. The fact that the offices of the county and district clerk are held by the same person does not affect the requirement that the failure to record a judgment by which the title to land is recovered in the office of the county clerk render such judgment inadmissible in evidence in support of any right claimed by virtue thereof.
4. The burden rested upon the plaintiff in error to show as a predicate for the introduction of said judgment that the defendants in error before named had either actual or constructive knowledge of said judgment, and that they were not bona fide purchasers for value.
1 The doctrine has been thoroughly settled by repeated decisions of the courts of this State that a judgment in an action of trespass to try title that plaintiff take nothing by his suit is an adjudication that the title to the land involved is in the *Page 428 defendant and such a judgment is equally as effective for that purpose as one expressly vesting title in the defendant. French v. Olive, 67 Tex. 400, 3 S.W. 568; Wilson v. Swasey, (Sup.)20 S.W. 48; Hoodless v. Winter, 80 Tex. 638, 116 S.W. 427; Houston Oil Co. v. Village Mills Co., (Com. App.) 241 S.W. 122; Stark v. Hardy, 29 S.W.2d 967; Dunn v. Land, 193 S.W. 704; McAllen v. Crafts, 139 S.W. 44; Drummond v. Lewis,157 S.W. 268; Bomar v. Runbe, 225 S.W. 287; Taylor v. W. C. Belcher Loan Mortgage Co., 265 S.W. 403.
The principle announced in these cases is but an application of the provision of the statute to the effect that any final judgment in an action to recover real estate shall be conclusive as to the title or right of possession established in such action upon the party against whom it is recovered, and upon all persons claiming through or under him, by title arising after the commencement of the action. Art. 7391, R. S. 1925.
In discussing the conclusive effect of a judgment decreeing that the plaintiff take nothing in an action of trespass to try title, Justice GAINES, speaking for the Court in the case of French v. Olive, supra, said:
"When appellants failed to make out their case it was a matter of no concern whether appellee could show any title or not. They were entitled to a judgment forever conclusive of all claim of appellants to the premises in controversy. This would have been the effect of an entry in the usual form, that the plaintiffs take nothing by their suit, etc. The additions removing cloud and quieting defendants' title, added nothing to the former part of the judgment. * * * Appellees have been adjudicated that to which they were entitled by reason of appellants' failure to establish their title and no more."
The same doctrine was announced in Hoodless v. Winter, supra, wherein the Court observed:
"Under their plea of not guilty the defendants could have introduced any evidence in their possession tending to defeat any item or link under which the plaintiffs claimed or under which they themselves held. A judgment in their favor under that plea would have conclusively established their title against the plaintiff and all persons claiming under them. In the action of trespass to try title a judgment rendered against the plaintiff is as conclusive in favor of a defendant who pleads 'not guilty' as it is against the defendant when the plaintiff recovers under the same circumstances. The conclusive effect of such judgments is declared by Art. 4811 of the Revised Statutes," etc. *Page 429
"Where the plaintiff, as in this case," says the Supreme Court in Wilson v. Swasey, 20 S.W. 49, "fails to show title to the land, it can make no difference, when the judgment is against plaintiff, that, as between them, the land is decreed in defendant. It adds nothing to the force of the general judgment in such cases that 'plaintiff take nothing by his suit,' that title is declared to be in defendant as between plaintiff and defendant. French v. Olive, 67 Tex. 400, 3 S.W. Rep. 568. This is the effect of the usual judgment against plaintiff."
Numerous opinions of the courts of civil appeals have followed this declaration of the law by the Supreme Court and the present Court has adopted opinions of the Commission of Appeals in the late cases of Houston Oil Co. v. Village Mills Co., and Stark v. Hardy, above cited, reaffirming the rule announced in the cases from which we have quoted.
2 But defendants in error insist that the judgment in Cause No. 854, Monroe v. Hickox, must be construed in the light of the findings of fact and conclusions of law filed in the court in which such judgment was rendered, and that when so construed it appears that Monroe was denied a recovery of the land, not on account of his failure to establish a regular chain of title thereto, but because in the light of the testimony adduced there was shown a conflict between Survey 103 and Survey 34, the latter being the senior survey. It is not material in this controversy upon what ground the trial court based its judgment in favor of Hickox. Monroe, by his petition, put in issue his title to Section 103. If for any reason he failed to establish the same, Hickox was entitled to a judgment, the effect of which would be conclusively to estop Monroe and those claiming under him from bringing a subsequent action for a recovery of the same land under any title which he claimed at that time. Herman v. Allen, 103 Tex. 382, 128 S.W. 115; Hoodless v. Winter, 80 Tex. 638, 16 S.W. 427; Harris v. First National Bank, 224 S.W. 269; Evans v. McKay, 212 S.W. 680; Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97; New York Texas Land Co. v. Votaw, 16 Texas Civ. App. 585[16 Tex. Civ. App. 585], 42 S.W. 138,52 S.W. 125.
3 Since Monroe placed the title to Section 103 in issue in Cause No. 854, the burden rested upon him not only to exhibit to the court evidence establishing his chain of title to the land involved, but he was also required to offer sufficient proof as to the actual location of the land so that an officer seeking to enforce a writ of possession under a judgment in his favor could locate the same and restore him to the possession from *Page 430 which he had been ousted without such officer being required to exercise judicial functions. In other words, it was Monroe's duty to furnish proof identifying the land described as Section 103 with such certainty that the court might determine whether Hickox had in fact ousted him from the possession thereof. The court was not justified in rendering a judgment, the effect of which would have been to take land from the possession of Hickox, unless the location of said land was definitely fixed upon the ground. A failure of Monroe to meet the burden thus imposed entitled Hickox to remain undisturbed in the possession of the land claimed by him. The judgment rendered did not disturb Hickox' possession. The statute specifically provides that such judgment shall be conclusive, not only as to the title established, but as to the "right of possession established in such action." This principle of law has been often declared in actions of trespass to try title. In the case of Jones v. Andrews, 62 Tex. 652, the Court said:
"If the boundary lines of the survey were not established by the evidence to the satisfaction of the jury so as to correspond with the description given in the petition of the boundary lines of the survey, the plaintiff failed in his action, and the verdict in such case ought to have been for the defendants, and thus ought the jury to have been charged, for the plaintiff can not recover in an action of trespass to try title otherwise than according to the description he has given of the land sued for."
"In the absence of extrinsic evidence identifying the property described in the tax foreclosure proceedings," say the Court in Welles v. Arno Co-Operative Irrigation Co.,177 S.W. 985, "plaintiff has failed to establish his title to the property for which he sues. There is no such evidence and in the absence thereof, no judgment could properly have been rendered except in defendant's favor, and a peremptory instruction to that effect should have been given."
It is urged that it is proper to consider the findings of fact and conclusions of law filed by the trial court in interpreting the judgment in Cause No. 854, Monroe v. Hickox, in order to ascertain what was actually decided by the court in that case. In this connection it is said that when the judgment is so considered, it is apparent that the question involved was solely one of boundary, that is, that the issue presented was whether Section 103 was in conflict with the land covered by Survey 34, a senior survey, to which Hickox admittedly held an equitable title.
4 A judgment can not be contradicted by showing that the *Page 431 issues raised in the case in which it was rendered were not in fact decided as shown by the statement of facts incorporated as a part of the record. It was so held by our Supreme Court in Swearingen v. Williams, 28 Texas Civ. App. 559[28 Tex. Civ. App. 559], 67 S.W. 1061, as indicated by this language:
"The parol testimony offered to show that the court really did not decide the question of title was inadmissible. The statement of facts filed in that cause would be a part of the record for the purpose of appeal from that judgment had it been prosecuted, but upon this plea of res adjudicata, it was extrinsic evidence and no better than parol."
To the same effect is the holding in the case of Freeman v. McAninch, heretofore cited. The facts upon which that case was decided are so strikingly similar to those involved in the instant case that we quote at length from the opinion in that case:
"Where it appears from the record of a court having jurisdiction over the parties and subject matter, that an issue has been presented and decided, then the decision so made, so long as it is not set aside in some lawful manner, must be held conclusive upon the rights of the parties when the same issue is again presented; and in such cases extrinsic evidence can not be received to contradict the record, by showing that an issue necessarily involved in that cause was not presented and decided.
"That the court in which the former action was tried had jurisdiction over the parties to and subject matter involved in that controversy can not be questioned.
"What was the issue involved in that cause as shown by the record?
"An issue is the question in dispute between the parties to an action, and in the courts of this State that is required to be presented by proper pleadings.
"The record of the former action shows that plaintiff in his pleadings alleged, that he was the owner of a tract of land therein, particularly described, that defendants, without right, had taken possession of that, and that he was entitled to have it restored to him.
"It is conceded that the tract of 134 1/2 acres now in controversy is a part of the land so claimed.
"It shows that the defendants denied plaintiff's ownership, and controverted his right to possession; and to intensify this denial asserted right in themselves, and stated the manner in which it was claimed that this accrued. *Page 432
"Thus were the issues presented, and the leading issue was one of title; and the fact that the determination of that may have depended on a question of boundary could not change the character of the vital issue in the case; for that was but a question of fact, to be considered like any other fact in determining whether the issue of title to the land should be decided in favor of the one party or the other.
"What the issues made by the pleadings were is not left uncertain by the record.
"The record of the former action shows that the court instructed the jury, that the controversy between the parties was one of title to the land described in plaintiff's pleadings; that he had shown title to the Washington survey, and defendants had shown title to the Allen survey, after which they were instructed to determine whether the land described in plaintiff's petition was a part of the Washington survey, and in the event they so found, they were instructed to find for the plaintiff.
"The court decided the question of title to the respective surveys; and only submitted to the jury the question of boundary, on which title to the land then in controversy depended; but this did not eliminate the question of title to the land sued for.
"Questions of boundary are never the subjects of litigation within themselves, but so become only where some right or title is thought to depend on their determination; and the fact that the court submitted only that question to the jury does not leave uncertain the issue actually tried and determined in the former action, even if the charge be considered without reference to other parts of the record.
"The judgment was: 'It is therefore considered by the court, that the plaintiff, John D. Freeman, recover of the defendants, J. F. McAninch and Daniel McCray, the premises described and bounded as follows:' it describes the land as described in the petition, and then declares that for this 'He may have his writ of possession and his costs in this behalf expended, for which he may have his execution.'
"In petition for writ of error defendants alleged that plaintiff had 'recovered of and from the said defendants the certain tract of land sued for.'
"That judgment, in the light of the entire record, was an unequivocal judicial determination that the title to the land described in it was in the plaintiff, and that he was entitled to its possession, and the evidence offered to prove that such was not the issue presented and determined ought to have been excluded. *Page 433
"There is no decision in this State, nor elsewhere, so far as is known, which sanctions the admission of such testimony in the face of such a record."
In Cause No. 854 Monroe, by his petition, claimed that he was the owner of Survey 103 and that he had been ousted from the possession thereof by Hickox. He prayed that his title to the land be established and the possession thereof restored to him. Hickox' plea of not guilty put in issue the title and right of possession to said land. With the title and right of possession thus in issue, the court, after a trial, adjudged that Monroe had not introduced sufficient proof to entitle him to a judgment against Hickox, and judgment was accordingly rendered that plaintiff take nothing by his suit. There is no ambiguity in this judgment which would permit the introduction of extrinsic evidence to show what was actually decided. The judgment expressly adjudicates that Monroe had failed to establish title to the land sued for. If such judgment were in fact contrary to the findings of the trial court, it was merely an erroneous judgment from the binding effect of which Monroe could have been relieved only through the medium of an appeal.
The admission of extrinsic evidence to show what issues were adjudicated in an action of this character was denied by the Court in the case of New York Texas Land Co. v. Votaw,52 S.W. 125. It was there determined that the trial court properly refused to admit a bill of exception filed in the case by the same party in the Federal court showing all of the evidence adduced on the trial, and to permit parol testimony to show what issues were actually adjudicated in that case. In denying the right to introduce such evidence the Court said:
"The court did not err in refusing to admit in evidence the bill of exceptions filed in the case of the New York Texas Land Co., Limited, against William Votaw in the Federal court, showing all the evidence adduced on the trial in that case, nor in refusing to admit parol testimony offered by appellant to show what issues were actually adjudicated in that cause. There is no uncertainty about what the issues were, or what was adjudicated, in that case. Those issues were clearly made and sharply drawn by the pleadings of the respective parties, and no doubt can be entertained as to what those issues were nor what was adjudicated. An issue is a question in dispute between the parties to an action, and in the courts of this State it is required to be presented by the pleadings. The petition and answer in that case show that the leading question presented *Page 434 was one of title, and the fact that the determination of it may have depended on a question of boundary could not change the character of the vital issue of the case; for that was but a question of fact, to be considered, like any other fact, in determining whether the issue of title to the land should be decided in favor of one party or the other. Freeman v. McAninch, 87 Tex. 135, 27 S.W. 97. It is not competent to show by evidence aliunde that the main issue clearly made by the pleadings of the parties was not decided, for such testimony would contradict the judgment, which shows that it was. Rackley v. Fowlkes, 89 Tex. 613, 36 S.W. 77."
5 Findings of fact are no part of a court's judgment. They are required to be made for the purpose of an appeal. They serve the useful purpose of disclosing on appeal the reasons upon which the trial court based its judgment. In a collateral proceeding they can not be used for the purpose of showing an erroneous judgment, as such a judgment can only be assailed in a direct proceeding.
6 No different result would be reached even if the findings of fact and conclusions of law filed by the trial court should be given consideration. The judgment adjudicated the issue of title presented by the pleadings. If the findings of fact are considered and they be inconsistent with or contradictory of that judgment, this fact would not render the judgment void and subject to collateral attack. Under such circumstances it would be merely an erroneous judgment subject to correction through appeal.
The rule on this subject is thus stated by Mr. FREEMAN in his work on Judgments, (5th ed.) p. 1483, wherein he states:
"Findings contrary to the judgment are not conclusive as to the matter found. On the other hand, a judgment, although contrary to the findings is conclusive as to the matter adjudicated."
Ruling Case Law, Vol. 15, p. 862, Sec. 336, announces the rule in this respect as follows:
"An inconsistency between the findings and the judgment rendered by a court of competent jurisdiction will not subject such judgment to collateral attack."
11 Texas Jurisprudence, p. 713, Sec. 9, lays down the rule in this respect as follows:
"Jurisdiction, it is agreed, includes the power to determine either rightfully or wrongfully, it can make no difference how erroneous the decision may be; if the court has jurisdiction *Page 435 of the parties and subject matter its determination of the controversy is not void."
The late case of Stark v. Hardy, decided by Section A of the Commission of Appeals, 29 S.W.2d 967, was an action of trespass to try title. The judgment entry showed the notation "Plaintiffs take a nonsuit." The judgment entry on the minutes of the court, however, adjudicated that the plaintiffs take nothing by their suit, and that the defendants go hence without day and recover their costs. In construing this judgment the Commission held that the judgment entry could not be used to contradict and render void the judgment rendered in the case. In passing on the question the Court said:
"Even though it should be conceded that the fact recitals contained in the judgment entry show, of themselves that the court rendered an erroneous judgment, still they do not show that the judgment is void."
A party in whose favor a judgment has been rendered can not be deprived of the binding force of such judgment by independent findings filed by the trial court. As said by the Court in Sheffield v. Goff, 65 Tex. 358:
"A party is bound by the judgment, but not the logic of courts. He is not forced to complain of a decree that satisfies him, because he knows that it has resulted from premises not involved, not proved or not true."
To hold otherwise would result in nullifying a judgment in a party's favor because of erroneous conclusions of the trial court when the party in whose favor the judgment was rendered would be powerless to have them set aside. He could not appeal from a judgment in his favor, and when he sought to obtain the benefit of the judgment in subsequent litigation upon the same subject matter, he might find its effect limited or completely nullified by findings which he was denied any opportunity to have reviewed by the appellate court. In this connection the language of Judge PLEASANTS in the case of Word v. Colley,173 S.W. 629, is very apt. He there says:
"From this statement of the issues in the former suit, the conclusions of fact and law filed by the trial judge and the judgment rendered it is clear that the conclusion that Horace Word and his sister had no reason to understand that they were accepting the lands conveyed to them by their father in settlement of their interest in their mother's part of the community estate, and that they were not estopped by accepting said lands from asserting claim to their mother's portion of *Page 436 said estate, was not material to the adjudication actually made in said suit. These were not essential to be determined in order to render judgment for defendants, and they did not enter into nor become a part of the judgment rendered. It is thejudgment, and not the verdict or the conclusions of fact, filedby a trial court which constitutes the estoppel, and a findingof fact by a jury or a court which does not become the basis orone of the grounds of the judgment rendered is not conclusiveagainst either party to the suit. [Italics ours.]
"In 2 Black on Judgments, page 609, the author states the rule of estoppel by judgment as follows:
" 'The force of the estoppel resides in the judgment. It is not the finding of the court or the verdict of the jury rendered in an action which concludes the parties in subsequent litigation, but the judgment entered thereon.'
"The fact that the judgment in the suit in Cherokee County was in favor of defendants precluded them from bringing in review the findings of the judge, and we can not believe that a party can be estopped by a judgment in his favor from denying findings of the court rendering said judgment, the decision of which was not essential or material to the rendition of the judgment. Philipowski v. Spencer, 63 Tex. 607; Sheffield v. Goff, 65 Tex. 358; Manning v. Green, 56 Texas Civ. App. 579[56 Tex. Civ. App. 579], 121 S.W. 725; Whitney v. Bayer, 101 Michigan 151, 59 N.W. 415; Cauhape v. Parke, Davis Company,121 N.Y. 152, 24 N.E. 186; 23 Cyc. 1227-1228."
Defendants in error complain that Monroe's petition in Cause No. 854 was insufficient to sustain the judgment rendered in favor of Hickox for the reason that the field notes of the land sued for are merely those contained in the patent and that the land could not, from such description, be located upon the ground.
7 We think the description given in Monroe's petition was clearly sufficient to admit proof as to the identity of the particular land sued for. The description of the land in the petition calls for stakes and mounds for corners. Such calls are for artificial objects. "Where a stake is once placed," says our Supreme Court in Thatcher v. Matthews, 101 Tex. 122,105 S.W. 317, "it fixes the corner as conclusively as if marked by natural objects. Owing to the fact that it may be removed or obliterated, its location may be more difficult of proof; but, if proved, it fixes the corner with the same certainty as where it is marked by a permanent object.
"* * * *Page 437
"The Court of Civil Appeals seem to have treated the case as if the call had been 13,400 to a corner without mentioning a stake. If such had been the case, their ruling would probably have been sound; but a stake is an artificial object, and its mention can not be disregarded. If the place where it was originally located can be established, the call for distance should yield to it."
The principle of law laid down in the above case was followed in the case of Wm. Rice Institute, etc. v. Gieseke,154 S.W. 612, in which it was held that a call for distance must yield to a call for a stake, even though it could not be found if there was evidence offered as to its proper location. In discussing the question the Court said:
"In Thatcher v. Matthews, 101 Tex. 122, 105 S.W. 317, it is definitely decided: (a) In case of conflict a call for an artificial object will control course and distance. (b) A stake is an artificial object; and if the place where it was originally located can be established the call for distance should yield to it.
"The stake at the southwest corner and the stake and mound at its northwest corner, as called for in the field notes of the Bunker could not be found; but there is ample evidence to support a finding that they were located 1,849 varas west of the Brock, and, under the authority quoted, such location being established the call for distance must yield to it."
A description in the petition of an action of trespass to try title very similar to Monroe's petition was held sufficient to sustain a judgment for the plaintiff in Porch v. Rooney,275 S.W. 494. The description held by the Court to be sufficient was as follows:
"58-7/10 acres out of the S.E. end of the 229-7/10 acres, beginning at a stake marked in the South corner of the W. E. Thomas survey on the North line of Warren D.C. Hall league; thence south 45 degrees west 858 vrs. to the east corner of Thomas Greene survey, a stake in North marked W. D.C. Hall league; thence north 45 west along the north boundary line of Thomas G. Green one-third league to a stk and marked 1505 vrs.; thence north 45 east with the south line G. McDougal survey 858 vrs. to the west corner of W. E. Thomas survey stake, and marked in the prairie; thence south 45 degrees east, with said Thomas Greene line, 1505 vrs. to the place of beginning containing 228.7 acres."
8 Even if Monroe's petition in Cause No. 854 were deficient in the respect pointed out, the subject matter embraced in the *Page 438 petition was within the jurisdiction of the court; hence, the judgment would be immune from collateral attack.
The rule on this subject is announced by Corpus Juris, Vol. 34, p. 560, as follows:
"A judgment can not be impeached collaterally on account of any defects in the pleadings which are amendable, even though such pleadings are bad on general demurrer. Thus the validity of a judgment can not be impugned by showing that a wrong form of action was chosen, or that the complaint did not state facts sufficient to constitute a cause of action, if it contained sufficient matter to challenge the attention of the court as to its merits."
The same author, Volume 15, 797, Sec. 94, further says:
"Jurisdiction of a particular action is acquired by the filing of pleadings which show the case to be within the general class of cases which the court has jurisdiction to hear and determine and a petition or complaint which shows this is sufficient to give jurisdiction, although it is defective in other respects."
In Moore v. Perry, 13 Texas Civ. App. 204[13 Tex. Civ. App. 204],35 S.W. 838, the rule is thus stated:
"The judgment is the final act of the court, and where a court has jurisdiction of the subject matter, and renders a judgment, its validity will depend neither on the regularity of the process, nor the sufficiency of the pleadings."
In Conner v. McAfee, 214 S.W. 646, in which a writ of error was denied by the Supreme Court, the Court said:
"In an exhaustive note to the case of Jarrell v. Laurel Coal Land Co., reported in L. R. A. 1916E (316), the question of a collateral attack upon a judgment because of the insufficiency of the pleadings is fully discussed, and a multitude of cases from practically every State in the Union is cited, holding that such attack can not be sustained, and that, even though the judgment should grant more relief than is demanded, it is not void."
Finally, our Supreme Court in Cleveland v. Ward, 116 Tex. 1,285 S.W. 1063, laid down the same rule. Chief Justice CURETON, speaking for the Court on this subject, said:
"Regardless of the question as to whether the original petition was sufficient in all respects against demurrer, its subject matter was within the jurisdiction of the district court of Johnson County, and that court, by filing of the petition, acquired jurisdiction of the suit." *Page 439
9 Giving the fullest consideration to the findings of fact and conclusions of law made by the trial court in Cause No. 854, we can not say that the issue presented was solely one of boundary. Hickox owned an equitable title to Section 34. Monroe in his petition asserted a right to the title and possession of Section 103. The issue thus presented was not one simply of boundary. Under a similar state of facts it was determined by our Supreme Court, in Cox v. Finks, 91 Tex. 318, 43 S.W. 1, that the question involved was not purely one of boundary. In that case, as in the case of Monroe v. Hickox, it appeared that there were two grants, one owned by one party to the suit and the other claimed by both. It was decided that such a case did not constitute a boundary case within the meaning of the statute. In passing on this question the Court observed:
"There may be a question of boundary as to two grants,one owned by one party to the suit and the other claimed byboth. A suit by one to try the title to the survey in controversy may involve a question as to the boundary between that and the other. This would not in our opinion be a boundary case within the meaning of the statute." (Italics ours.)
10 There is no merit in the contention of defendants in error that the judgment in Cause No. 854, Monroe v. Hickox, was not admissible against them because they were strangers thereto. The judgment in said cause that plaintiff take nothing operated to divest whatever title John Monroe had in said land at that time, and to vest the same in Hickox. This judgment constituted a muniment in Hickox' title, and was available for the purpose of establishing title to those holding under Hickox, even against the claim of strangers. McCamant v. Roberts, 66 Tex. 260,1 S.W. 260; Owens v. New York Texas Land Co., 45 S.W. 601; Vol. 15, Encyc. Digest of Texas Reports, p. 124.
It is earnestly insisted by defendants in error that plaintiff in error was properly denied a recovery of the land sued for because it appears that Hickox, its predecessor in title, successfully maintained in Cause 854 that the patent by the State to Survey 103 was void by reason of the fact that the land described in such patent conflicted with the land described in senior surveys 34 and 35, and that under a well recognized principle of law the successor in title of Hickox should not be permitted to maintain the inconsistent position in this case that there is no conflict on the ground between Survey 103 and the senior surveys 34 and 35. *Page 440
The doctrine of judicial estoppel thus invoked is one which operates to prevent a party who has successfully interposed in defense to an action or proceeding shifting his ground and taking a position in another action or proceeding which is so inconsistent with his former defense as necessarily to disprove its truth.
We do not question the soundness of the legal proposition thus asserted by defendants in error. We are unable, however, to agree with the assumption that the record shows that Hickox, in Cause No. 854, successfully maintained the position that Survey 103 was void because in conflict with senior Surveys 34 and 35. It is difficult to perceive upon what theory it can be contended that the trial court in Cause No. 854 determined the existence of a conflict between Survey 103 and Survey 34, when that court expressly found that it was "unable from the testimony and evidence to ascertain the true location on the ground of Surveys 103, 104, 34, and 35." It was impossible for the trial court to have found a conflict between these surveys unless there was sufficient evidence from which it could establish and definitely fix the location of each of such surveys upon the ground. It is obvious that the judgment in favor of Hickox was not the result of a finding by the trial court of a conflict between Survey 103 and Survey 34, but solely because of the failure of Monroe to discharge the burden imposed upon him by law to adduce sufficient proof from which the trial court could definitely locate upon the ground the position of the land sued for. It is therefore clear that Hickox, in Cause No. 854, did not successfully maintain the position of a conflict between Survey 103 and Surveys 34 and 35.
Aside from this, the assumption made by defendants in error that Hickox assumed an inconsistent position with that taken by the plaintiff in error in this case is not justified by anything appearing in the record. Defendants in error claim that their assumption as to Hickox' position in Cause No. 854 is sustained by the following state of facts shown by the record, viz.: First, that title to Survey 103 could not have been adjudicated a limitation title in Hickox' favor because he made no plea of limitation. Second, because in said cause there were filed abstracts of title, and it will be presumed that they were filed in obedience to a statutory demand; that the abstract of title filed by Monroe to Survey 103 shows a regular chain of conveyances from the original patentee to Monroe, and that the only abstract of title filed by Hickox is merely an award and sale by the State of Texas to him of Survey 34.
From these premises it is assumed that no title papers not included in the abstract of title were or could have been offered *Page 441 in evidence or considered in determining the case. Based upon this state of facts, the assumption is made that Hickox took the position upon the trial of Cause No. 854, and successfully maintained it, that the land described in the field notes of Survey 103 was actually included within the boundaries of Survey 34. An inspection of the record does not reveal any demand by either party for the filing by the other of an abstract of title in Cause No. 854. It does not show that either party to that suit filed or purported to file an abstract of the title upon which he expected to rely on the trial of the case. What is mistakenly assumed to be an abstract of title is merely the giving of the statutory notice required as a predicate for the introduction of certified copies of instruments which the parties desired to introduce upon the trial of this cause.
The notice given by Monroe was addressed to Hickox or his attorneys of record, and reads as follows:
"You will hereby take notice that I have filed with the district clerk of Pecos County, Texas, to use as evidence in the above styled and numbered cause the following title papers, viz.:" (Then follows a recital of various instruments constituting Monroe's chain of title.)
The notice given by Hickox is addressed to Monroe or his attorney of record and is as follows:
"You are hereby notified that I have filed with the district clerk of Pecos County, Texas, to be used as evidence in the above styled and numbered cause the following title papers: Certified copy of application of Hickox to purchase Section 34, Block 194, G. C. S. F. Ry. Co. for 640, together with application attached and endorsement and award by the Commissioner of the General Land Office made thereon."
It is apparent from an inspection of the above quoted documents filed by the parties that neither party was purporting to file an abstract of title in response to a statutory demand therefor. By giving the above notice the right of neither party was foreclosed from offering any legitimate and admissible evidence to establish title to the land in controversy, as would have been the case had they filed, in obedience to a statutory demand, an abstract of the title upon which they relied.
11 Even if it be conceded that Hickox, in the suit filed against him by Monroe, assumed and successfully maintained the position that there was a conflict between Surveys 103 and 34, still, since plaintiff in error was not a party to that suit, it would *Page 442 not be prevented from defending the title acquired under Hickox upon any available ground.
It is well established that a position assumed by a party in a former judicial proceeding will not estop him, or privies in estate, from taking an inconsistent position in a new proceeding unless the new action is between the same parties. The rule is thus stated by the author of Corpus Juris, Vol. 21, p. 1229, Sec. 233:
"In order to work an estoppel, the position assumed in the former trial must have been successfully maintained. In a proceeding terminating in a judgment, the position must be clearly inconsistent, the parties must be the same, and the same questions must be involved."
Ruling Case Law, Vol. 10, p. 702, gives this statement of the rule:
"It may be laid down as a general rule that a party will not be allowed in a subsequent judicial proceeding to take a position in conflict with a position taken by him in a former judicial proceeding, where the later position is to the prejudice of the adverse party, and the parties and the question are the same * * *. But, ex vi termini, the rule underlying these propositions does not apply to suits in which the issues and the parties are not the same, nor to a position not precisely that taken on the prior proceedings."
In Heard v. Vineyard, 212 S.W. 489, the rule as above defined was applied by the Commission of Appeals, as is revealed by the following quotation from the opinion:
"Defendants stress the proposition that the Vineyards, having recovered in the Brundrett case [17 Texas Civ. App. 147[17 Tex. Civ. App. 147], 42 S.W. 232] upon the theory that James B. Wells, Sr., and consequently Brundrett, never had title to the 11/24 interest therein, and herein involved, are estopped to urge in this case the entirely contrary theory that Wells did have a title which passed to Brundrett through the executor's sale and vested in Lillian Vineyard through her judgment against Brundrett.Such an estoppel can only be urged in favor of the parties tothat suit. Defendants not being parties to the suit of Vineyard v. Brundrett, plaintiffs are in no manner estopped to assert another and contrary theory upon which to base a recovery, which in this case is but an adoption of defendants' theory."
The reason for this rule is apparent. If a party has assumed a certain position and procured a judgment in his favor which *Page 443 vests title in him to the land involved, he has in law a good title thereto. Since he has such a title, it naturally follows that he may convey a good title to one purchasing from him.
If Hickox took the position assumed in Cause No. 854, and thereby obtained judgment, the effect of which was to vest the title to Survey 103 in him, then there was no infirmity in his title. Presumptively, the final judgment in his favor was correct. Since this is true, no valid reason exists why he could not convey to another a good and indefeasible title to the premises. It is true that if Hickox himself were seeking to maintain this suit, he would be estopped from asserting any position inconsistent with that which he maintained when he obtained judgment in the former proceeding. But, the plaintiff in this case has taken no inconsistent position in regard to the title to this land. It has bought and paid for the land upon the assumption that the judgment in said former proceeding operated to divest title out of Monroe and vest the same in Hickox. It therefore can not be barred from asserting any defense of its title that it may see fit to urge, even though its predecessor in title may have maintained an entirely different position in acquiring the same. Plaintiff in error's right to urge any defense of the title to said land that it may see fit can not be abridged because of a position taken by a predecessor in title in a suit to which it was not a party and for which it is in no wise responsible.
12 It appears that the judgment rendered in Cause No. 854, Monroe v. Hickox, was recorded in the minutes of the district court, but that the same was not recorded in any record required to be kept by the county clerk. At the time this judgment was rendered Pecos County had less than 8,000 inhabitants. Under the provisions of our Constitution, a single clerk was required to serve as both district and county clerk.
Certain of the defendants in error claim to be bona fide purchasers for value without notice of the rendition of the judgment in Cause No. 854. It is their contention that under the statute (Art. 6638, R. S. 1925) plaintiff in error was not entitled to introduce said judgment in evidence until it had adduced proof showing a compliance with the statute requiring the same to be recorded in the office of the county clerk.
Plaintiff in error insists that where there is but one office and one officer, that a record of the judgment in the minutes of the district court would be a substantial compliance with the terms of the statute. We are unable to agree with this contention. While there was but one officer, he was required to discharge the duties incumbent upon both district and county *Page 444 clerks. As such officer he was necessarily required to keep two different sets of records, one which the law required to be kept by district clerks and the other which was required to be kept by county clerks. The judgment in question was not recorded in the office of the county clerk as required by the statutes unless it was incorporated in some record kept by this officer in the performance of the duties imposed upon a county clerk.
13 It has been held that the statute in question is a registration statute and that its enactment was for the purpose of giving notice to intending purchasers. Russell v. Farquhar,55 Tex. 355; Henderson v. Lindley, 75 Tex. 189, 12 S.W. 979. Since this is true, the burden rested upon the defendants in error, under their claim of bona fide purchasers without notice of the rendition of the judgment in Cause No. 854, to show that they acquired the land for value and without notice, either actual or constructive, of the rendition of said judgment.
14 Plaintiff in error introduced evidence tending to show that Hickox was in actual possession of this land from 1911 to 1915, and that such possession continued through his tenant, I. G. Yates, from the latter date until the time he was ousted from possession by the defendants in error. If it should be found upon another trial that Hickox was in actual possession of said land, either in person or by tenant at the time defendants in error acquired their rights in said land, such possession would be sufficient to constitute constructive notice to them of Hickox' claim to said land. Watkins v. Edwards, 23 Tex. 449; Glendenning v. Bell, 70 Tex. 632, 8 S.W. 324; Flannagan v. Pearson, 61 Tex. 304; Cobb v. Robertson, 99 Tex. 145,86 S.W. 746, 87 S.W. 1148; Forrest v. Durnell, 86 Tex. 650,26 S.W. 481; Boffa v. Hebert, 42 S.W.2d 624.
15 At the time of John Monroe's death the judgment which we have held vested title in Survey 103 in Hickox had not been recorded in the office of the county clerk of Pecos County. At said time Monroe was therefore the apparent record owner of this land. He left a will which was duly probated in the county where the land was situated. The will devised all of the estate of which he died seized and possessed to his widow, and named her as independent executrix. After qualifying as such she filed what purported to be a complete inventory of all the property belonging to said estate. This inventory did not list Sections 103 and 104, the title to which was involved in said Cause No. 854.
It is plaintiff in error's view that the omission of Survey 103 from the inventory prepared and filed by Mrs. Monroe, independent *Page 445 executrix of the estate of John Monroe, was sufficient to put purchasers from her upon inquiry as to whether title to the omitted survey had passed out of John Monroe prior to his death. We are not in accord with this view. We do not think that purchasers from Mrs. Monroe were required to examine the inventory filed in connection with the probate of Monroe's will. The record showed the apparent title to the land involved in Monroe at the time of his death. The will purported to vest the title to all the property owned by Monroe at the time of his death in his widow. The record of this will was sufficient to complete the apparent title to the land involved in Mrs. Monroe; hence, it was not necessary for an intending purchaser to investigate further than to examine the link necessary to perfect an apparent title in Mrs. Monroe.
Plaintiff in error insists that Monroe did not die seized and possessed of this land, and therefore it did not pass under his will to his widow. Of course this is true. If the real title had passed by the will, plaintiff in error would have no claim to this land. So far as the record to which a purchaser was required to look, however, the apparent legal title was vested in Monroe's widow by the provisions of his will.
16 We conclude, however, that upon the issue as to whether defendants in error were bona fide purchasers for value of the apparent legal title of the land involved without notice of the fact that title to said land had been divested out of Monroe and vested in Hickox by the judgment in Cause No. 854, it would be permissible for plaintiffs in error to show that any of the defendants in error at the time they acquired title through Mrs. Smith had actual notice of the omission of Survey 103 from the inventory filed by Mrs. Monroe. Such fact would be a circumstance which might properly be considered by the jury in passing upon the question as to whether defendants in error were put upon inquiry as to whether Monroe in fact owned said land at the time of his death.
Plaintiff in error presents a number of assignments complaining of the admission and exclusion of evidence by the trial court. To discuss these assignments seriatim would prolong an already unduly lengthy opinion. We deem it sufficient to say that these assignments have been given careful consideration and the conclusion reached that the trial court committed no error in the rulings complained of.
Because of the errors of the trial court in striking out the judgment in Cause No. 854, in admitting the findings of fact and conclusions of law, and in giving a peremptory instruction, the judgment must be reversed. *Page 446
We therefore recommend that the judgments of the Court of Civil Appeals and of the trial court be both reversed and the cause remanded for another trial.
Adopted by the Supreme Court June 19, 1934.
ON MOTIONS FOR REHEARING.