I have concluded that we erred in our disposition of this case.
Since appellant acquired legal title to the property in question at the foreclosure sale and the title which appellees assert is an equitable title, the burden was upon appellees to prove that the City of Sherman had notice of such equitable title at the time of the assessment. Dixon v. Cargill, Tex. Civ. App. 104 S.W.2d 101, at page 102, par. (2), writ refused, and cases there cited.
Absent such notice, the owner of the record legal title was the owner of the property within the purview of the applicable paving statutes, and the assessment was valid. Realty Trust Co. v. Craddock, 131 Tex. 88,112 S.W.2d 440, at page 443, last paragraph.
It is not contended that either the City of Sherman or the Jagoe Construction Company, to whom the special assessment certificate was payable, had actual notice of Oscar Hudspeth's equitable title at the time the assessment was made. The sole ground on which the City is held to have been charged with notice of such equitable title is the possession of the property by Oscar's tenants at the time the assessment was made. The trial court did not find that Oscar Hudspeth was in possession in person at such time. The finding is, that immediately after his purchase (in 1924) he "moved upon said property" and that under an agreement between him and Will and Ida Hudspeth, Will and Ida might use the premises as a home as long as they lived; that Will and Ida occupied the property from the year 1924 until the date of trial as tenants of Oscar, and during such time they did not claim to own the title or any interest in the land. There is no finding that the City of Sherman or the Jagoe Construction Company failed to exercise diligence by making inquiry of the possessors, or that by diligent inquiry they could have ascertained that Will and Ida Hudspeth held possession of the property as tenants of Oscar Hudspeth, the equitable owner. All that was required of the City was that it make diligent inquiry of the possessors to ascertain the nature and extent of their claim. Collum v. Sanger Bros. 98 Tex. 162, at page 165, 82 S.W. 459; Moore v. Chamberlain, 109 Tex. 64, at page 68,195 S.W. 1135, last paragraph.
There is no showing that it did not do so.
If it be assumed that the trial court was justified in disbelieving the testimony of Booton in toto, and notwithstanding the recitals of ownership in the mechanic's lien executed by Will and Ida Hudspeth and the deed of trust executed by Ida Hudspeth, in finding that Will and Ida during their occupancy claimed no interest in the property, yet such finding did not discharge the burden resting upon appellees to show that the City failed to make diligent inquiry as to the nature and extent of the claim of Will and Ida, and that had it done so, such inquiry would have revealed that Will and Ida were tenants of Oscar and put the City on notice of Oscar's equitable title.
As I understand the opinion, it holds that the possession of Will and Ida, as a matter of law, was notice to the City of Oscar's equitable title, regardless of any inquiry that the City may have made of Will and Ida as to the nature and extent of their claim, even though such inquiry would not necessarily have revealed Oscar's equitable title. Such holding goes further than the facts in any of the cited cases warrant. *Page 223 I believe it unsound. It would place an undue burden upon cities and render it practically impossible for them ever to fix a valid assessment lien against unknown equitable owners.
In my opinion the motion for rehearing should be granted, the judgment of this court affirming the judgment of the trial court set aside, and judgment here rendered that appellant recover the title and possession of the property.