*1 810 (1976), Cearley Cearley, v. 661
equal present yet value of benefits “ * * * and, death, military retirement resigna- earned benefits be because of tion, contingent discharge, required years property constitute community asset to considera- the bene- completed service are never with other along property tion divi- fits never earned. See 50 Wash.L.Rev. sion of the under at 532. Sec- Family tion 3.63 of Code.” would, in We believe to hold otherwise The motion for cases, rehearing is overruled. “grossly inequitable most result results,” very thing dissenting jus Busby were so concerned about in v.
tices
Busby, 551 (Tex.1970). Also “Military Retirement Benefits as
see: Com
munity Property Busby Busby,” 27 Sw. — (1971), “Military Retirement L.J. Community Property: New Benefits BLACKMON and Jack James Albert Supreme Bay Rules From The Court?” Blackmon, Appellants, Arthur (1972). lor L.Rev. 235 case, recognize we In this PARKER, Appellee. Franklin Gaines death, resignation or the loss of ecclesiasti No. 6554. may prevent comple cal indorsement Texas, Appeals Court of Civil twenty years’ Likewise, service. El Paso. case, Miser discharge death and prevented completing the airman from Dec. 1976. twenty years’ service. But as between Rehearing Denied Jan. 1977. working unlikelihoods and the those gross injustice, we conclude that likely prevent
not so to occur as to asset, if, when,
division of a most valuable it is received.
and as case,
Based the decision Miser believe a similar result this case where an officer
reached military regulations complete
right years duty of active service and
twenty
thereby earn his retirement benefits. a similar result will be reached in
Whether involving cases servicemen and
all women highest per- be left to our Court and Legislature.
haps the part .the provides Mary Schappell nothing Schap-
take insofar as Robert N. anticipated military retirement bene-
pell’s are concerned is reversed and the case
fits remanded to the trial Court. In all other
respects the is affirmed.
ON MOTION FOR REHEARING in this
Subsequent original opinion to our Texas held in Supreme Court of *2 Paso, Poage, appellants.
Allan L. El for Caballero, Pearson, El Ray Pearson & Paso, appellee. for OPINION OSBORN, Justice. Declaratory Judg- case involves
This which the trial Court held ment in owns a fee to cer- Appellee absolute improvements land and located thereon tain City of El Paso. We affirm. they appeared will be-referred to as trial Court. Blackmon, This special instrument closes with a war- Mrs. Cathalene In about ranty James and clause. the mother Blackmon, purchased home at 3222 Jack being dispute There now between the Paso, Hamilton, Approximately El Texas. boys two and their stepfather, Plaintiff later, Plaintiff, she married the year *3 alleging para- filed this suit in the first family Parker. The Franklin lived Gaines graph: until her death 1958. Dur- house “ in this * * * The real property, ownership time, paid down ing mortgage the subject which matter of this suit eventually paid about and was to $500.00 to remove encumbrances the title will pro- Parker. Mrs. Parker’s off Mr. land, title to such lies quiet wholly and to vided: County, in El Paso Texas.” of all payment my just “After further his pleadings Plaintiff asserted in devise, debts, bequeath all give, I and property description if the in the deed real, my property, whether the residue convey not sufficient to the real prop- mixed, or of whatsoever kind or personal, erty question, then the deed situate, nature, my wheresoever and correctly fully reformed to and describe the husband, FRANKLIN PAR- GAINES also pled parole gift He a property. and his KER, proviso my that after occupancy continued with valuable im- husband, death, my GAINES FRANK- if perfect title, provements to and he addition- PARKER, the house we should sell LIN ally three, five, asserted under the and death, my the time of then in at lived ten-year Statutes Limitation. It was bequeath what would have been give and alleged contingent that the right further sale, proceeds of such a my share proceeds payment assigned a and lived, sons, my JAMES ALBERT had I prayed the deed. transferred He “ * * BLACKMON and JACK * ARTHUR judgment declaring that BLACKMON.” question Deed in a conveyance suffices as of all right, and death, and to the Following their both boys mother’s real estate of expressed stepfather desire that a re- ALBERT himself, JAMES BLACKMONand for and in JACK May, tain the house BLACKMON, ARTHUR 1958, Plaintiff, executed an instrument which PARKER, GAINES FRANKLIN and that recites: “ * * * do any not now right own for and in consideration of the to the property expectancy or any from affection which we love and have and proceeds on the sale of the property.” Thus GAINES FRANKLIN bear unto PAR- the two issues raised concern title to real KER, good and other and valuable con- proceeds estate and any sideration, GRANT, do AND SELL CON- the said GAINES FRANKLIN jus- unto VEY Defendants assert there is no County, Texas, of El Paso all dispute PARKER ticiable for determination under the right, Judgment Act, title and interest in the Declaratory our because there CATHALENE CRAVEY PAR- been no of the property, has and with KER, any property of whatsoever kind a sale there no out for deter are to ownership. or wheresoever situate that would be be- A declaratory mination or her will queathed rights devised to us as a is one declares the parties. her 30th day result of death on the and duties or status of the Art. 1958, 2524-1, March, TO HAVE AND TO HOLD Tex.Rev.Civ.Stat. There exist justiciable controversy rights par with all between the together singular, jurisdic anywise ties in for the Court to have appurtenances thereto be- order dispute. Airport FRANK- tion over the issue in longing, unto said GAINES Service, PARKER, Worth, assigns City forev- Fort his heirs or Coach LIN Inc. »* * * 1974, er. (Tex.Civ.App. Tyler— e.). specifically specifically provide ed the r. The Act for n. writ ref’d sale, ownership any wills construction of deeds and since for provides rights legal whose relations the issue not been those 2524-1, Defendants, we find Appel- such instruments. Art. no harm affected 2, to deny lants in trial Court’s decision Tex.Rev.Civ.Stat.Ann. Sec. reversible error the motion and real this there does exist a In Rule Tex.R.Civ.P. Under presented. land, as to the title to the holding Wilson, in Vance determined, and a real issue as (Tex.1964), where seeks party two ownership (title to recovery land types issue, made, if sale be and as sale) and the case is prosecuted to a effect, judg silent. judgment, judgment, final while provides May the deed dated ment *4 awarding plaintiff a recovery “ on one item * * * 1958, conveys the interest of land), be (title denying to as construed that land the certain and Defendants recovery prayer for on the other * * * the item thereon, located improvement sale). any In (proceeds Engi- Chem-Gas lot, described block addi- is and [which neers, Asphalt Inc. v. Texas Refining * & * *, thereby vesting to Plaintiff tion] Company, 395 690 (Tex.Civ.App.— S.W.2d PARKER, said GAINES FRANKLIN in 1965, e.), writ ref’d n. the Waco r. Court property.” fee absolute to said the said: judgment further decrees De- “that The “ general ‘The rule in is that all Texas any divested themselves of have fendants * presented by * the pleadings issues dis- property said Of interest in judgment posed the the unless con- course, only property” can be that “said thereof,’ the trary appears from fact legal in appears descrip- the earlier a is not expressly disposed claim ‘[W]here tion and to there is no reference by judgment although by plead- raised any “proceeds regard sale.” Without judgment the will ing, be construed as question of there is present the a claim, denying upon relief such and the controversy any as to the from judgment will be as being considered fi- judgment speaking and a that issue appealable.’ Wilson, nal Vance controversy the would resolve between 107, Tex., 108, 109.” be a final determination these was A similar result reached in Carte v. Thus, we conclude there issue. that McKenzie, 430 559 (Tex.Civ.App.— S.W.2d justiciable did exist a controversy in e.), plea writ ref’d n. r. where a Waco jurisdiction and it Court had to decide trial judicata was a suit res raised in as judgment. a declaratory issue in Even in a judgment prior result of suit which deed, regard without conclude premises awarded possession had of leased issue properly that the title plaintiff, made mention of a to the but no the will no Defendants had because personal property. for conversion of claim land merely in the but an interest The said: Court any derived from future judgment did ex- “While the Conway Estes, S.W.2d property pressly dispose personal writ). (Tex.Civ.App. Worth no —Fort issue, In pleadings. it was raised Appellants’ points first and second of error case the will construed such are overruled. (here denying relief claim as such next contend that converted). had personalty been that grant failing erred in their trial Court Wilson, Tex., 382 Vance v. See provide' to amend the motion 107.” without prejudice said of error No. Ill is Point overruled. making a claim for a their share toas ever While property complain sold. Defendants next the tri if findings amend- Court al Court’s refusal to make fact perhaps request one, requested as for additional its silence as other means that it conclu- findings. original case, The trial Court’s denied. this they say that the provide part: law sions of Court was silent pro- on matter of the Granted, ceeds sale of the house. “3. Court concludes the Plaintiff judgment did not use the “proceeds words has absolute to the herein real estate sale,” but the Court disposed question, free and clear of claims when it judgment. This, rendered of the Defendants.” that was the because the lawsuit. “finding requested Defendants then particularity describes the claim what the Court decided when it claims as set out in instrument construed which the sons No. 3.” While the did file Conclusion right, “all of assigned our title and interest not, such, findings, it did “de- additional CATHALENE CRAVEY with particularity scribe the claim or PARKER, any property of whatsoever Nevertheless, of the Defendants. claims” or wheresoever situate kind that would be no we find reversible error since Defend- or devised to us her bequeathed will * * acknowledge ants no claim make *.” Under record in property to title described strained of the Court’s construction judgment, and the issue as to judgment to make an affirmative award to has not been decided the sons who were Defendants. *5 Defendants. Rule Tex.R.Civ.P. mother The left the sons her share of the error is Point of No. IV overruled. if the was ever They house sold. points The Defendants’ last two error of assignment an stepfather. made to their complain regard entry also to the of a problem as to The arose whether that as- judgment which not of dispose does the proceeds. the signment par- included The “proceeds of of question Again, the sale.” went to ties Court to determine ques- that showing conclude that there is no of any we ruled, When the tion. Court it answered error since that reversible issue has not question regardless language that of the — adversely to the been Defendants. problem used—because was the only that of error VI V and are overruled. Points these people. problem between It was the judgment We conclude that the they brought to Court. It could be that Court, by the entered trial Mr. Parker has nothing the sons more because that is all simple title to real fee the estate and im- under the got will—the provements. judgment But the of the trial involved, it cap logically is all that having pro- made no Court mention of the had, only problem people these and it is the future that ceeds must hold problem asking is the went to they Court that issue been decided to the They on. at- declaratory judgment Plaintiff, and if Mr. proper- Parker sells the the the tached will and instrument as- during lifetime, ty his the will signment and the Court for con- asked proceeds. to a be entitled share struction. judgment The of the trial Court is af- plead- because the problem A is created firmed. went further than the ings Plaintiff matters declaratory sought pled relief PRESLAR, (concurring and Justice Chief of a tres- to the house with counts of title dissenting). were try title These sur- nature. pass title was plusage suit because no in the affirmance of the I concur pleaded These excessive matters involved. judgment, respectfully Court’s but trees obscure but the forest—the on the that holding dissent the people between problem these go majority Defendants. The —the the sub- criterion is applies ask of their lawsuit. The the rule that where opinion you rather form of action which things you than the only gives for two and the Court stance The judg- writer’s construction for which he party to relief entitles McGlaun, ment is bolstered the fact that after its reason. Ellison v. a lawful shows entry, Defendants filed a written mo- (Tex.Civ.App. —Amarillo the Court to amend asking judg- e.). n. r. The writ ref’d substance preju- it was without provide ment to proceeds— who controversy gets making a claim for share of dice put If do not form assigned? we were proceeds in the event of a sale. The substance, we must conclude over by written order refused make the and decided before the Court the one me, To this is the amendment. Court’s judg- necessity when it rendered it of explanation judgment of its to mean it ment. requested relief. contrary to Other- causes action as to two of law rule wise, granted would motion to majority opinion not in the relied on Ordinarily, we would not be able amend. if two causes of because applicable here an go unambiguous judgment outside exist, there but be said action could construction, for its but the Defendants as judg- for determination one basis Appellants have assigned error ment; a construction of the two that was overruling Court’s their motion. quoted As instruments involved. error, point overrule that recited majority opinion, holding that the thereby disposes “deed”, assignment, instrument question sale in But, conveyed simple “fee absolute.” title of the Plaintiff. favor important to note that that finding isit yet There is pleaded in the reason why based on the matters another Rather, not be construed as trespass try title. nature awarding any proceeds of sale to the De- that it is con- judgment specifically reads fendants; it recites that “fee abso- struing assignment the instrument lute” title is vested in the Plaintiff vesting was a the Court said “deed” *6 Deed. Defendants’ This is most com- Thus, construed the Plaintiff. the Court prehensive estate recognized law. “The assignment the instrument of favor of quantum of interest of which the owner that, Plaintiff. it answered expressed is vested is a fee assignment effect question of the on Tex.Jur.2d, ‘perfect’ ownership.” 22 term proceeds of sale. to that find- Incident Estates, any qualifica- 3. It is Sec. clear of title, ing poor was a recitation of Practice, or condition. Texas Land draftsmanship is made appear as an issue Titles, Lange, Simple Sec. Fee Title decided, in fact the principal issue decid- (1961). a title appear Such would to ex- But, seen, as we that was ed. portion clude claim another matter suit. proceeds of sale. Following paragraph construe the award- speaks of there is second ing Plaintiff. says which the separate paragraph ORDERED, “It further ADJUDGED DECREED Defendants have di-
AND themselves said
vested and costs of Court should be
property,
charged against In the writ- Defendants.” opinion, paragraph
er’s second
enough of the claim to relieve silent on of sale language If the alone does not
question.
suffice, implication is that Defend- signed away. everything
ants