61 Tex. Civ. App. 493 | Tex. App. | 1910
Lead Opinion
— Appellants brought this suit in the ordinary form of an action of trespass to try title, seeking the recovery of 320 acres of the B. J. Smith survey, situated in Cherokee County. They are the children of W. S. and Mary A. Parks, both deceased, and claim title by inheritance from their parents. The appellees, defendants in the court below, pleaded not guilty, and specially set up their title as purchasers under a sale made by the executors of the will of W. S. Parks, the father of appellants, to J. M. Beard and E. F. Ezell. From the agreed statement we make the following findings as to the facts: W. S. Parks, the common source of title, was married twice, and the appellants are the children of his second marriage. His first wife, Minerva, died in Cherokee County in 1864, leaving surviving her W. S. Parks, her husband, and three children, Thomas M., Mary E., and James. At the time of her death Minerva Parks and W. S. Parks owned community property consisting of both land and personalty. A portion of the land was situated in the State of Missouri. W. S. Parks subsequently married a second wife, Mary A., who became the mother of appellants, Ed. and Boxanna Parks. The land involved in this suit is the community property of the second marriage, and now belongs' to the appellants unless a con
At the time of his death W. S. Parks was indebted to John M. Beard in the sum of $747. He was also indebted jointly with his partner, Boyd, to John MeCrummen in the sum of $1,000. The Beard debt was reduced to judgment in 1879. During the same year Mary A. Parks and John A. Boyd, purporting to act as the representatives of the estate of W. S. Parks, executed a deed conveying the land in controversy to John M. Beard and E. F. Ezell. The consideration recited in this conveyance was $240 to be credited on the judgment recovered by Ezell against the estate of W. S. Parks. The claim which the appellants now assert to the land is based upon the insufficiency of this conveyance to transfer any title to Beard and Ezell. They contend that by the agreed judgment, to which we have referred, the executors had made a distribution of the property belonging to the estate of W. S. Parks, had thereby surrendered their dominion as executors, were without power to then dispose of this property for the payment of debts, and for that reason that this conveyance did not vest any title in the purchasers.
Upon a trial before the court a judgment was rendered in favor of the defendants in. the suit. The principal attack upon the judgment is based upon the contention that it is not supported by the evidence.
"It is therefore adjudged, considered and decreed by the court that the following described land be and the same is set apart and partitioned to Thomas M. Parks: (Then follows the description). And all of the right, title and interest which the estate of W. S. Parks, deceased, and upon which the other plaintiffs and defendants herein, or either of them, have in and to said before described lot of land, together with the improvements thereon, are vested in the said Thomas M. Parks, his heirs and assigns in fee simple forever.
“It is further considered, adjudged and decreed by the court that the following described tract of land be and the same is set apart in partition to the plaintiff James Parks: (Then follows description). Arid all the right, title and interest which the estate of W. S. Parks,
“It is further considered, adjudged and decreed by the court that the following described tract of land be and the same is set apart in partition to the plaintiff Mary E. Bothwell: (Then follows description). And all of the title and interest which the estate of W. S. Parks, deceased, and which the other plaintiffs herein and which the defendants herein, or either of them, have in and to the said tract of 100 acres of land, together with all the improvements thereon, are vested in the said Mary E. Bothwell, her heirs and assigns in fee simple forever.
“It is further considered, adjudged and decreed by the court that the following described tract of land is set apart in partition to the plaintiffs Thomas M. Parks, James Parks, and Mary E. Bothwell, jointly, to wit: (Then follows description). And all the right, title, and interest which the defendant's herein, or either of them, and which the estate of the said W. S. Parks, deceased, has in and to the said 907 acres of land, more or less, is vested in the aforesaid plaintiffs jointly, their heirs and assigns in fee simple forever.
“It is further considered, adjudged and decreed by the court that the following land be and the same is hereby set apart in partition to the defendants Mary A. Parks, Boxana Parks and Edwin Parks jointly, to wit: (Then follows description, including the 320 acres of land involved in thi§ suit). And the right and title of the plaintiffs herein and of the estate of W. S. Parks, deceased, or either of them, in and to the aforesaid land, or any of them, together with all improvements upon said land, are vested in the said defendants Mary A. Parks, Boxana Parks and Edwin Parks, jointly, their heirs and assigns in fee simple forever.
"It is further considered, adjudged and decreed that all and same are the personal property belonging to the estate of W. S. Parks and the estate of Minerva Parks, deceased, the first wife of W. S. Parks, deceased, be and the same is set apart in partition to and vested in the defendants Mary A. Parks, Boxana Parks and Edwin Parks, jointly.
“It is further considered, adjudged and decreed by the court that the property set apart in partition to the plaintiffs Thomas M. Parks, James Parks and Mary E. Bothwell respectively is in full satisfaction of all and singular their interest, shares and claim in the estate of Minerva A. Parks, deceased, and William S. Parks, deceased, save and except any property which may be owned by either in said estate situated in the State of Missouri.”
The statement of facts contains the following agreement by the attorneys in this appeal: “It is agreed that the plaintiffs or defendants in this suit own such interest in the land in controversy as the true construction of the following instruments taken together would convey or give.” The instruments referred to are the following: The written pleadings in the suit by the children of the first marriage; the agreement and the judgment dividing the property, which were entered in that suit; a mortgage executed by Mrs. Parks and John
The question then arises, did the decree devest the executors of any further control for purposes of administration over the property thus distributed? We think so. The executors were parties both to the agreement and to the judgment, and must be held bound by what was there done in so far as they could be bound by such proceedings. If they might thereafter exercise any further administrative authority over any portion of the property, it was because the legal effect of what was there done did not amount to a distribution. We may concede that under the conditions existing at that time, those executors could not have been compelled to yield their control over all of the property of W. S. Parks and submit to a distribution, and that a judgment to that effect rendered over their objection should not be construed as depriving them of their right to continue in the exercise of their administrative functions over any. portion of the property. But in the judgment here under consideration the executors consented to the rendition of the decree, and it should, for that reason, be entitled to all of the weight which a voluntary concession would add. If the estate of W. S. Parks was divided into parts and those parts allotted
It is urgently insisted by the appellees that no such distribution and surrender was intended in this instance by the executors, and as evidencing the absence of any such intention, reference is made to the subsequent acts of the executors in exercising their dominion over some portions of the estate which had theretofore been divided. The transactions referred to consisted of mortgaging the land in controversy, and other lands, to John MeCrummen to secure a debt due from the estate of W. S. Parks, and making the conveyance under which the appellees in this suit claim. In cases of this kind we must seek the intent of the parties by searching the evidences with which they have clothed their action. Where that evidence consists of written memoranda, or records, couched in plain and unambiguous language there can be no occasion for resorting to extraneous facts to find out what was intended. Under such circumstances it will be presumed that they had in contemplation the legal effect of what was done. Lessing v. Grimland, 74 Texas, 239, 11 S. W., 1095; 9 Ency. of Ev., 371, and cases cited. The transactions to which we. have been referred as controlling the intent of the parties occurred more than a year after the entry of the judgment which we are called upon to construe. They are, therefore, too remote to be considered as a part of the res gestae. We are not to be governed by what the parties may have intended to do, but what they in legal effect did. When the law. attaches certain consequences to the doing of particular acts, the actual intent of the actor must yield to the dictum of the law. The mortgage and deed made by the executors subsequent to the partition might indicate that they still claimed the right to sell off portions of the property for the payment of debts, but they certainly could not be considered as negativing the fact that a partition had in reality been made. If the executors entertained 'such an intention they merely assumed the exercise of a right which the law denied them.
It is also contended that the judgment rendered in the suit by the children of the first marriage was void as being without pleadings to support the relief there granted. It is true that the original petition filed in the case only sought the recovery and segregation of that interest which those plaintiffs inherited from their deceased mother, Minerva Parks. It is also true that the judgment rendered went further and made a partition of all of the property in which W. S. Parks was interested. But the judgment was one rendered in pursuance of an agreement made at a time when all of the parties were before the court. Whatever may be said concerning the jurisdiction of the court to pronounce the particular decree there rendered, in the absence of an agreement that it might be done, we do not think that objection can be urged in the present case. A judgment by consent cures all errors except those resulting from a lack of jurisdiction in the court. Hutchison v. Owen, 20 Texas, 287; Laird v. Thomas, 22 Texas, 280; Sandoval v. Bosser, 86 Texas, 687, 26 .S. W., 935; Garner v. Burleson, 26 Texas, 348; Weaver v. Vandervanter, 84 Texas, 691, 19 S. W., 889; Lessing v. Hardie, 55 Texas, 233. The exception in the rule above stated must be still further limited in this instance to those
But assuming that the conveyance of Boyd and Mrs. Parks, in'which they undertook to transfer the land in controversy to Beard and Ezell, was void in so far as it operated upon any title held by them as executors of the estate of W. S. Parks, it does not follow that it was ineffectual for any purpose. Mrs. Parks was not only an executrix, hut a joint owner of the land described in her deed; and while she might not he able to transfer any title, acting in her fiduciary capacity, because she had none, her deed would nevertheless invest her grantees with such interest as she owned in her individual right. Corzine v. Williams, 85 Texas, 499, 22 S. W., 399; 16 Cyc., 712. It therefore becomes necessary to ascertain what interest Mrs. Parks individually held in this particular property. The parties, by their agreement, have eliminated the will of W. S. Parks as a factor to be considered in determining that question, and we must look alone to the instruments to which we have heretofore referred. The judgment in the partition suit uses the following significant language: “And the right and title to the plaintiffs herein (referring to the children of the former marriage) and estate of W. S. Parks, deceased, or either of them, in and to the aforesaid lands or any of them, together with all improvements upon said land, are vested in the said defendants Mary A. Parks, Roxana Parks and Edwin Parks jointly, their heirs and assigns in fee simple forever.” The legal effect of that language would be to create an equality of interest in Mrs. Parks and her children. 28 Cyc., 490; 17 A. & E. Ency. Law, 2d ed., 651. We must therefore conclude that the interest of Mrs. Parks- and the children were equal, and that she held as a tenant in common with them an undivided one-third interest in the 320 acres of land involved in this suit, and that such interest passed by the terms of her deed to Beard and Ezell. The judgment of the District Court will therefore he reversed and here rendered in favor of the appellants for an undivided two-thirds interest in the land, but the case will be. remanded for the purpose of enabling the parties, if they so desire, to have a partition. The judgment is accord
Reversed and remanded with instructions.
Rehearing
ON MOTION EOR REI-IEABING.
The appellees in their'motion for rehearing insist that the appellants are not entitled to recover the land because the consideration for which it was sold to those under whom appellees claim was applied on a judgment against the estate of W. S. Parks, and inured to the benefit of the appellants. They also call our attention to their plea in which they ask that in the event appellants recover all, or any part, of the land, they be required to refund the amount paid upon that judgment together with interest thereon from that date. This feature of the case was not called to our attention in the former presentation, and we were not apprised of the fact that appellees relied upon pleadings of that character until mention was made of it in this motion.
Assuming that the conveyance and sale were void because of the lack of authority in the executors, and that no title was imparted to the purchasers, still the executors were empowered to settle the debts of the estate, and a release of a debt to them would operate as a valid ex-tinguishment. The evidence shows that on the 3d day of September, 1879, a judgment was recovered by J. M. Beard against the estate of W. S. Parks; that when this sale was made by Mrs. Parks and Boyd, as executors, the consideration, $240.00, was entered as a credit upon that judgment. To this extent the appellees and their mother were benefitted by the application of that consideration. Thirty years or more have passed since that transaction. The original claim based upon the judgment has long since become barred by limitation, and it would be inequitable to now permit the appellants to recover the land without making restitution of the consideration which was applied upon a debt for which their property was liable and which inured to their benefit. Halsey v. Jones, 86 Texas, 488, 25 S. W., 696; Hayes v. Gallagher, 21 Texas Civ. App., 88, 51 S. W., 280.
Hnder the rule announced in the cases above referred to-, the judgment heretofore rendered by us should be modified. We have held that the appellants were entitled to recover two-thirds of the land sued for. It would be just for them to account for two-thirds of the consideration, $160.00, with interest thereon at the rate of eight percent per annum from September 3, 1879, as the condition upon which they will be permitted to regain possession of the land. The motion for rehearing will therefore be granted, and the judgment heretofore entered reversing and rendering the case will be so modified.
The case will be reversed and rendered in accordance with the original opinion, on condition that the appellants, within six months from this date, pay into this court, for the use and benefit of the appellees, the sum of $160.00 with interest thereon at the rate of eight percent per annum from September 3, 1879. Should they fail to comply with this requirement within that time, the judgment of the trial court will stand affirmed.