Irion v. Mills

41 Tex. 310 | Tex. | 1874

Devine, Associate Justice.

The appellees, Mills and Halbert, brought suit, by an action of trespass to try title, for the recovery of one thousand and fifty-five acres of land from John L. Irion, Lockhart, and others.

Appellant, Irion, after a general denial, set out in his original and amended answers that the land in suit was conveyed to him in May, 1863, by Henry Griggs, the owner of the same, in satisfaction of a trust fund held by Griggs, as trustee for the wife of defendant, Irion, she being the daughter of Henry and Haney Griggs.

Defendant, Lockhart, as administrator of Henry Griggs, denied all and singular the allegations in plaintiff’s petition, and intervened, claiming two hundred acres of the land, with the improvements, as the homestead of Henry and Haney Griggs at the time the deed in favor of Irion was executed, and asserting that, as Haney Griggs had not joined her husband in the deed of transfer, the same was null and void, and prayed a decree in his favor, as administrator of Henry Griggs, for two hundred acres, with the improvements, there being no member of the family residing on or claiming or entitled to it as a homestead.

A jury was waived, the cause submitted to the court, and a judgment rendered declaring the deed from Henry Griggs of 29th of May, 1863, as “fraudulent and void,” vesting the title to the land in Mills & Halbert, and reserving out of the tract a homestead exemption of two hundred acres, with improvements, which were adjudged to Lockhart, as the administrator of Henry Griggs, for the payment of debts, if any existed, or in distribution among the heirs, there being no “ constituents of the family.”

The defendant Irion’s motion for a new trial being overruled, an appeal was taken, and the case is now presented on the exceptions taken at the trial, and errors assigned.

The first assignment of error is, “ The court erred in overruling the exceptions of this defendant to the petition of said intervenor, L. 0. Lockhart, administrator.” The exception by defendant to the intervention of Lockhart should have been sustained. Lockhart, as the administrator of Henry Griggs, did not represent the estate of Haney Griggs, and should not have been heard in his assertion of a supposed right remaining in her estate; and if such right really existed, his .demand that it be adjudged to him, as the administrator of Henry Grigg’s estate, ought not to be received. His intervention should have been dismissed on exceptions of defendant. There was nothing in his petition that gave color even to an assertion that he represented either the heirs, creditors, or legatees of Haney Griggs.

As the administrator of Henry Griggs, he could not claim any more than his intestate in the two hundred acre homestead exemption, and Griggs could not assert any claim beyond his right to occupy it during his life; his heirs were bound by his warranty in the deed executed by him.

The administrator intervened, and the court acted on the belief that, as Haney, the wife of Henry Griggs, had not signed the deed of conveyance to appellant, the conveyance by the husband alone was a nullity, and could not bar those claiming under her. While this conveyance was inoperative to divest Mrs. Griggs of her homestead right, her interest after her death vested in her husband; that it was otherwise with the interest of the husband, or those claiming under him; and his conveyance estopped his administrator from a recovery. (See Gould v. West, 32 Tex., 352, and cáses there cited.) And the deed being void as to any interest of the wife, could not affect the conveyance by the husband. “But if the deed is void only against one of two grantors, but not as to the other, as in the case of a deed of the wife’s land by husband and wife, with defective privy examination, the deed will be effectual as an estoppel on the grantor, as to whom it was valid, though not as to the other.” (Bigelow on Estoppel, 285, 286.)

There was error in the court not dismissing the intervention of the administrator, L. C. Lockhart.

The second assignment of error, that the court erred in sustaining objections of plaintiff to the five several questions propounded to the witness Andrews, is not fully sustained by the evidence; while the objection that the evidence sought was hearsay is not fully supported by an examination of it, in connection with other evidence and the character of the defense. The questions put by defendant to witness, with the' exception of the first, were open to the objection of being óf a vague and indefinite character. The substance'of this evidence was, however, ' allowed to be introduced during the trial.

The third assignment of error is: “The court erred in rendering said judgment herein, the same being contrary to law and the evidence.” An examination of the evidence in the transcript shows that, 1st. Henry Griggs was admitted to be the owner of the land at the time he conveyed it to appellant, Irion, May 29,1863. , 2d. That William Bonner obtained a judgment against Henry Griggs in'April, 1866, and a decree ordering a sale of certain lands to satisfy the vendor’s lien. 3d. That the sale of these lands on which the vendor’s lien rested, not satisfying Bonner’s debt, an execution was levied on the thousand and fifty-five acres in controversy, and sold to plaintiffs for two hundred and fifty dollars, on the 2d of July, 1868. 4th. The evidence shows that the deed from Griggs to Irion was recorded in Navarro county nearly two years before the execution was levied. 5th. The record from Handock county, Georgia, shows that John Sturdevant, the grandfather of appellant’s wife, left by will one-third of his estate for life to his daughter, Mrs. Nancy Griggs, with remainder over to her children ; that Henry Griggs was authorized to sell property belonging to Ms wife and children in Georgia, to be invested in land and negroes for their benefit; that he was appointed by the proper court in Hancock county, Georgia, to act 'as the trustee of Ms wife and children; that in pursuance of the order of the chancery court, he gave bond, received in money and negroes the one-third of his father-i'n-law’s estate, and removed to Texas with his family, some money, and twenty-five or thirty negroes belonging to Ms wife and children; that Henry Griggs, at the time of his removal to Texas, was a man of limited means; that he afterwards purchased about six thousand dollars’ worth of land in Grimes county, which was subsequently sold by Mm for twenty-five thousand dollars, and a portion of the proceeds invested in the land in suit. 7th. That the debts against Griggs at the time of the conveyance to defendant were as follows: One to William Bonner, secured by the vendor’s lien on the property purchased by him; also a debt to Dagget and wife, for about fifteen hundred and twenty dollars, likewise secured by a lien on land; and another debt of about twenty-five hundred dollars. 8th. That there were in the family twenty-five or thirty negroes, down to the “ break-up ” or close of the war; that th’ere was due to Griggs about twenty-five thousand dollars when the deed to the land was executed, and that Griggs collected the whole of it. Another witness stated he knew of Griggs collecting ten thousand dollars, but did not know what he used it for. 9th. Griggs was shown to be solvent when the transfer to Irion was executed.

These facts show that if the question of fraud could have been presented, it was uot raised by the pleadings, and could not form the basis, as in this case, of the judgment, it not having been alleged in the pleadings or shown by the evidence. This conveyance was not, however, - and cannot be considered as a voluntary conveyance from Griggs to Irion. Irion’s wife, on the death of her mother, Nancy Griggs, was entitled, under the will of John Sturdevant, to a child’s portion of the property in which her mother had but a life interest, and which,was represented and controlled by her father, as trustee for his wife and children. He had already, in payment of their claims, given three negroes and a tract of land to his other children. Mrs. Irion did not receive this (or her husband for her) as a gift; she received it as a creditor of Henry Griggs, and a creditor having as legal and a far more equitable right to a conveyance from him than his other creditors. There was no judgment against him at the time. There was no lien or incumbrance upon the land, save the equitable right of Mrs. Irion to claim the-land as property purchased by the trustee, and paid for from the proceeds of her grandfather’s estate, and to which, as one of the devisees under the will, she was entitled. The plaintiffs in this suit were notified by the record of the deed to appellant, and by appellant’s attorney, before the sale, that it was the property of Irion. The authorities in support of the proposition that a debtor can give a preference to one creditor over others are numerous and conclusive. (McQuinnay v. Hitchcock, 8 Tex., 35; Edrington v. Rogers, 15 Tex., 195; Hancock v. Horan, 15 Tex., 507; Baldwin v. Peet, 22 Tex., 716.) The judgment of the court, not being warranted by the law and facts of the case, is reversed and the cause remanded.

Reversed and remanded.