*1 toto: al., Appellants, BAILEY et Estate MULLENS, Executor Leonard Appellees. al., Bailey et
No. 13323. Appeals of Texas. of Civil
San Antonio.
April 2, 1958.
Rehearing Denied *2 Bailey, acquired separate
Bates
she
her
as
estate,
3,
and
Lot
Block
No.
4,
3,
No. Bay
View
an addition
No.
City
Christi,
County,
Corpus
of
Nueces
1943,
Thereafter,
Texas.
20,
February
on
Ruby
Bailey
Bailey
Bates
and S. C.
Jane
executed
and
the instrument
question
in this
it to
case and delivered
Bailey,
Bailey
Gambrell
Tressie Bell
and
who thereafter
caused said instrument
duly
filed and
Deed
recorded
Records
County,
of Nueces
Texas.
Bailey
Ruby
During
lifetime of
Jane
subsequent
and S. Bailey
C.
and
to the date
of
Bailey
said
im-
Gambrell
proved
carpenter
upon the
and did
work
premises
property;
and added a room to the
ap-
Christi,
Alsup, Corpus
for
Alsup &
cabinet;
built a
re-
kitchen
and
recanvased
pellant.
house;
papered
painted
prop-
said
and
Christi,
erty
Mobley,
Jr., Corpus
described
said instrument.
Wm. Brode
appellee.
for
7,
February
1957, Ruby
On
Bates
Jane
Bailey
testament,
made her last will and
BARROW, Justice.
Ayers
appellee
designating
Street
appellees,
brought by
This
suit
thereunder,
Church of Christ sole devisee
Mullens,
the Estate
Executor of
Leonard
3,
giving
and
No.
to said Church Lot
Ayers
Bailey, and the
Ruby
Bates
of
Jane
3,
4, Bayview
Block No.
No.
an addition
Christ, Devisee of the
of
Street Church
Corpus Christi,
to the City of
Nueces
Bailey, against
Ruby
Bates
Estate of
Jane
County, Texas,
simple,
as
well
fee
as
Bailey,
Bell
appellants, Gambrell
Tressie
estate, real, personal
all her
mix-
other
or
Bailey,
formerly
Bell
and
Jacobs,
Tressie
ed.
try
trespass
a
Dorsey
It was
Jacobs.
posses-
title
and
Corpus
recover
title suit
Ruby
Bailey
died in
Bates
Jane
4,
View
3,
Bay
No.
15,
Christi,
No. Block
Texas,
February
Lot
She
sion of
on
Corpus
City of
3,
addition
No.
after
death
not
had
re-married
The trial
County, Texas.
Christi,
Bailey,
years
thirteen
before.
S. C.
some
jury,
a
and
19, 1957,
without
filed
February
the court
her will was
was to
Oil
ap-
in favor
judgment
subsequently appellee
probate
court rendered
and
for
judg-
appeal
from that
pellees.
appointed
This
executor
Leonard Mullens was
Bailey,
Ruby
ment.
of the estate of
Bates
Jane
by the Probate Court.
stipulated the follow-
have
parties
appellee Ayers
Street Church
ing facts:
February
Christ, from
June
wife, Ruby
Bates
Bailey and
S. C.
Jane
1, 1957,
$2,177.95,
sum
contributed
wife,
children
and
had no
Bailey, husband
support
maintenance
Appellant marriage.
said
Bailey,
her
and for
Ruby
Bates
said
Jane
a
Bailey by
for-
son
S. C.
Bailey
expenses
Pri-
numerous bills.
medical
marriage.
mer
death,
Bailey made
Ruby
to her
Jane
life
beneficiary
under her
the mar-
Church
during
said
November
On
policy.
Bailey and
insurance
riage between
heirs,
parties
presented
hereby
numer
we do
executors
have
bind our
administrators,
de
counterpoints,
points
to Warrant
ous
Defendant,
singular,
the con
Forever
all
entire
rests on
cision of the
case
premises
Gam-
following instrument:
said
unto
said
struction
wife,
brell
Tressie bell
be executed
“A
of Trust
Deed
every
assigns, against
heirs and
re-
death,
after
not
our
*3
person
claiming,
lawfully
whomsoever
Ruby
and
Bailey
corded
S. C.
same,
part
any
or to
or
claim the
passed
Bailey
to
his
have
wife
Jane
them,
by, through
thereof
under
or
beyond.
great
not otherwise
By
Texas,
Men
1Known
“The State
All
of
stip-
expressly agreed
“But it is
and
These
“County
Nueces.,
of
Presents:
ulated that
Lien is re-
Vendor’s
|
against
tained
the above described
I,
Bailey
Ruby
“That
and
S. C.
Jane
property, premises
improvements,
and
Bailey,
a
lot
wife
sell
certain
his
do
agree-
until the above described note
Christi,
Corpus
in the
located
town of
one
Eight
each and
notes $300
Texas,
No.
furniture Lot
house and
paid
face
fully
according
are
to
$100
No.
Bay
in
View
3 situated
Block
tenor,
reading, when
and
effect and
$2,500 to
of
(3) for the consideration
this deed shall become absolute.
monthly
paid
payments
without
in
this
at
“Witness
hand
interest.
day
A.D.19
of
County
of
of
of
State
for
of
and
consideration of
sum
-
Request
“Witnesses
at
nine promissory
*4
S.W.2d 355.
day
February, A.D.
Office this 22nd
1943.
A sound rule of construction re
“/s/
quires
interpretation
an
under which the
7s/
operative
prefer
deed will be valid
“Notary Seal
nullify
ence to one which will
14
it.
Tex.
Beatty
“Inez
137,
915;
O’Connor,
p.
Vineyard v.
§
Jur.
Notary Public in and for
59,
424;
90
36
Tex.
Berg
S.W.
Rhoden v.
County, Texas.”
man, Tex.Civ.App.,
103
regard
be, without
guage
it
ancient
shows
The strictness
what it is
much
labeled.
nowis
repugnancy in deeds
rule as to
adopted
relaxed,
method
saner
and the
names
We have also noted that
instrument
parts of the
permitting all
gran-
grantors
of the
and not the names
gather
possible and
to stand where
clause,
tees
habendum
are inserted in the
in
whole
parties
from
intention of the
import
but this
entire
repugnant
586-7.
136, pp.
14-B
strument.
§
Tex.Jur.
rejected.
the instrument and must
ig
may be
repugnant
in a deed
A
clause
destroy the
O’Connor, supra,
In
Vineyard
effect would
nored where its
v.
Tex.Civ.App.,
Walters,
deed, Hopkins
instru-
v.
had under consideration an
though
even
very
224
and this is true
S.W.
similar
here involved.
to the one
habendum
rejecting
entire
grantee
it involves
The name
named
Brownwood, Tex.Civ.
Grogan v.
warranty
clause.
the first
clause.
time
Peterman,
532;
App.,
Jung v.
respects.
214 S.W.
ambiguous
deed was
in several
202;
Arden
Tex.Civ.App.,
194 S.W.
Appeals,
The Court of Civil
35 S.W.
If
Boone,
Tex.Com.App.,
S.W. 265.
held the
failure to name
instrument void for
it is
Court,
deed in that
ambiguity
grantee.
Supreme
in a
Tex.
there is
constructions,
one
susceptible
of two
36 S.W.
the decision and
reversed
adopted that most favorable
will be
held that the instrument was a valid deed
133, pp.
grantee.
conveyed
14-B
grantee
§
Tex.Jur.
warranty
580-1.
named in the
clause.
*5
appellees rely strongly
on the case
in
With
canons of construction
these
&
&
Oil
Pendleton v. Stanolind
of Roeser
mind,
instrument
we have examined the
Co., Tex.Civ.App.,
POPE, J., not did this case.
cisión oí Rehearing.
O'n Motion
BARROW, Justice. down opinion handed in this cause
Our supplemented add- 2, 1958,
on “sub- words paragraph, in the
ing, last lien,” immediately fol-
ject the vendor’s appellants.” words, “property
lowing rehearing appellees’ motion for
Otherwise
is overruled. DISTRICT,
BROWNSVILLE NAVIGATION Appellant, COMPANY, Inc.,
VALLEY & FUEL ICE al., Appellees. et
No. 13320. Appeals Civil of Texas. *6 Antonio.
San 1958. May
Rehearings Denied also S.W.2d 129.
See cash and notes $25 of Grantor: —Eight for for and one each $300 Texas, charged, we “The State of No interest is as $100. j prop- occupy are to and control Me, County Nueces. Before of j erty as long we live. Beatty, Notary Public, and Inez a Texas, day County, for on this Nueces “After Bailey death and personally Bailey known appeared C.S. charge wife are to of person name to whose paid, to be me and secured to foregoing in- paid, Furniture, subscribed to the by cloth- take acknowledged to me that ing, monies, and papers, Everything strument and — purposes for the possession death, he executed the same in their at as fol- expressed. consideration therein : and lows My Of Hand And Seal “Given Under “Gambrell Bailey and Bell Tressie February, day A.D. 22nd Office this Bailey pay agrees wife all taxes his place up keep insurance and and Beatty, Notary Inez “Notary Seal /s/ and all is to be insurance taken out Public in and for Bailey name. have County, Nueces Granted, Convehed, and Sold and Texas. Grant, presents these do and Con- Sell Texas, “The State of vey, the said the Coun- unto j Nueces, “County Me, Before ty State of all that j Public, Notary Beatty, in and a for Inez certain Texas, County, day on this To Hold the de- “To Have And above Bailey appeared S. C. personally premises, together with all and scribed Bailey, wife, appurtenances Ruby his both singular rights Jane persons to be the anywise belonging, known to me whose thereto in unto Ruby foregoing are subscribed wife names S. said C. Jane forever; instrument, assigns me Bailey heirs and 102 gathered to* from the entire they that the same executed gether surrounding with the circumstanc- ex- purposes therein and consideration es Bailey, unless such intention is in conflict Ruby pressed, and the said Jane having unbending some construction canon of wife of the said S. C. or apart settled property, repugnant rule of privily been examined me having the husband, grant. 14 from her terms of the § Tex.Jur. her, she, explained pp. fully 910-912. same Bailey acknowledged said language Since the a deed that deed, act and to be her such instrument grantor, any if there doubt as willing- she had declared that she its construction it should be resolved purposes and ly signed for the the same against him grantee. and in favor expressed, and therein consideration 916; p. Humble Oil & § it. wish to retract did not Tex.Jur. she Refining Harrison, Co. v. 146 Tex. Of Seal My Hand And “Given Under