129 S.W.2d 468 | Tex. App. | 1939
This suit was filed November 10, 1936, by Johnnie P. Sparks and others against Humble Oil Refining Company, E. L. Riddle, and D. A. Riddle, defendants below, in an action of trespass to try title to 80 acres of land described in plaintiffs' petition, located in Titus County. Housch Thompson, Inc., intervened, claiming title to certain mineral interests deraigned from E. L. and D. A. Riddle and was aligned as a defendant. Each of the defendants filed a general denial and pleaded not guilty.
Plaintiffs are the sole heirs of J. A. Sparks, deceased. It is their contention that the land here involved was community property of J. A. Sparks and his wife, Parkie. Defendants claimed the land was the separate property of Mrs. Parkie Sparks. Plaintiffs showed in evidence that the land was conveyed by W. H. Fry and wife to J. A. Sparks and wife, Parkie Sparks, by deed dated January 16, 1902, which recited a consideration of $200 cash in hand paid by J. A. Sparks. None of the plaintiffs testified, except P. F. Newman, husband of Mary Newman who was a daughter of J. A. and Parkie Sparks. His testimony related solely to identifying plaintiffs as the heirs of J. A. and Parkie Sparks, both deceased.
Defendants showed that on January 13, 1902, three days prior to Fry's conveyance of the land to J. A. and Parkie Sparks, that said Parkie Sparks joined by her husband, J. A. Sparks, had conveyed certain real estate, the separate property of Parkie Sparks, located in the city of Mount Pleasant, to W. H. Vaughan for $250 cash, and that the $200 paid for the land involved in this suit was a part of the proceeds of said sale of Mrs. Parkie Sparks' separate property. Witnesses Mrs. Laura De Prato, Will Duke and John Duke testified that J. A. Sparks stated to them and in their presence that the proceeds of the sale of the above-mentioned separate property of Mrs. Parkie Sparks were used in paying Mr. Fry for the land here involved. Their testimony is not disputed.
J. A. Sparks died in 1903. Mrs. Parkie Sparks died sometime after December 28, 1908. On the date last mentioned Mrs. Sparks conveyed the land here involved to F. P. Riddle. F. P. Riddle died September 26, 1918. Defendants E. L. and D. A. Riddle claimed title under F. P. Riddle. Defendants Humble Oil Refining Company and Housch Thompson, Inc., claim mineral interests under E. L. and D. A. Riddle.
Upon close of the evidence all parties, plaintiffs and defendants, moved for an instructed verdict in their favor. The motions were overruled, and exceptions were taken to the action of the court. In response to special issues the jury found: (1) That at the time the property in controversy was deeded to J. A. Sparks and Parkie Sparks, January 16, 1902, it was paid for with funds derived from the separate estate of Parkie Sparks. (2) That at the time the land was deeded to them it was the intention of Mrs. Parkie Sparks and J. A. Sparks to make it their community property. (3) That the deed executed by Mary Newman and others August 5, 1918, was delivered by one of the grantors to F. P. Riddle or some one for him during his life. (4) That Johnnie Sparks signed the last mentioned deed on June 1, 1919. (5) That at the time Johnnie Sparks signed and acknowledged said deed he did not know that F. P. Riddle was dead. (6) That at the time he signed and acknowledged said deed Johnnie Sparks knew that E. L. and D. A. Riddle claimed that they had acquired the title of said F. P. Riddle.
Plaintiffs and defendants each moved for judgment in their favor. The motion of plaintiffs was overruled and the motion of defendants, in which it was contended that special issue No. 2 was immaterial and without support in the evidence, was granted, and judgment was entered that plaintiffs take nothing by reason of their suit. Plaintiffs duly excepted and have perfected their appeal by writ of error, and will be referred to as appellants.
The controlling question in this case is that of whether or not the 80 acres of land in controversy was community property of J. A. Sparks and wife, Parkie Sparks, or was the separate property of the wife, Parkie Sparks. The deed from W. H. Fry to J. A. Sparks and wife, Parkie Sparks, introduced in evidence by plaintiffs, raised a presumption that the property was community. The presumption is a rebuttable one and operates only in the absence of satisfactory proof to the contrary. Janes v. Gulf Production Co., Tex.Civ.App.
Appellants contend that they were entitled to a judgment upon the finding of the jury, in answer to special issue No. 2, that it was the intention of J. A. Sparks and wife, Parkie Sparks, at the time the property was deeded to them to make it community property. Appellants cite and rely upon the case of Cummins v. Cummins, Tex.Civ.App.
Necessarily, as in all cases, the language used in the opinion of the court in that case is to be construed in the light of the facts before the court. We do not interpret the language as meaning, nor is it the rule that the bare intention alone of the husband and wife at the time of purchase will always determine whether the character of title acquired is community, or separate. See Gleich v. Bongio,
It is contended that the recital in the deed by the vendor that he had received the consideration for the conveyance, reading: "for and in consideration of the sum of Two Hundred ($200.00) Dollars, to be paid by J. A. Sparks as follows: cash in hand paid the receipt whereof is hereby acknowledged," and the further fact that the conveyance was made to "J. A. Sparks and wife, Parkie Sparks" raises an inference or has some special probative *471
force in showing an intention of J. A. Sparks and Parkie Sparks at the time to acquire community title to the property. We do not sustain this contention. By virtue of R.S. 1895, Article 2967, in force at that time, the husband was legally vested with the right of possession, management and control of the wife's separate property. Givens v. Carter, Tex. Civ. App.
Appellants assign as error the action of the trial court in overruling their objections to the admission in evidence and their motion to strike from the record the recitals contained in the deed from Mrs. Parkie Sparks to F. P. Riddle reading: "The above described property is my own separate property in my own separate right, having been paid for with my own money." The deed containing the recital was introduced in evidence by the defendants. It constituted a link in their chain of title. Appellees (defendants) contend that the wording of appellants' objections to the introduction of the deed containing the recital and appellants' motion to strike the recital from the record is not sufficient, in that the deed was unquestionably admissible, and no request was made to limit the effect of the deed or to instruct the jury not to consider the recital contained therein. It is not necessary to determine this contention urged by appellees; because, considering appellants' assignment and conceding that the action of the trial court was error, it is not such error in the circumstances of this case as will authorize a reversal of the judgment rendered, for the reason that it was otherwise established by competent evidence, undisputed, that the property was the separate property of Mrs. Parkie Sparks.
The defendants introduced in evidence a deed executed by Mrs. Mary Newman and others (plaintiffs) who were identified as heirs of J. A. Sparks, deceased, conveying the land in question to F. P. Riddle, dated August 5, 1918, reciting a cash consideration "and the further consideration of perfecting the title to the herein described land." And, in addition to the granting clause the following: "To have and to hold the above described premises together with all and singular the rights and appurtenances thereto in any wise belonging to the said F. P. Riddle, his heirs and assigns forever; and we do hereby bind ourselves, our heirs, executors and administrators, to forever quitclaim said premises unto the said F. P. Riddle, his heirs an assigns against our heirs, executors and administrators, forever." Appellants objected to the introduction of this deed on the asserted grounds that it was void because signed and acknowledged by Johnnie Sparks, one of the grantors, after the death of the grantee named therein, F. P. Riddle. The evidence is sufficient to show that all the grantors signed and acknowledged the deed prior to the death of F. P. Riddle, except said Johnnie Sparks, who signed and acknowledged it after the death of F. P. Riddle. It appears that Johnnie Sparks signed the deed at the request and for the benefit of E. L. and D. A. Riddle who were claiming to have acquired the title of F. P. Riddle. They paid Johnnie Sparks a cash consideration for signing and acknowledging the deed. No contention is made that the consideration was inadequate and no offer of its return was made upon the trial of this case. "It is a well-established rule that a deed can be made only to grantees in existence or life, at the time of the execution of the deed." Vineyard v. Heard, Tex.Civ.App.
Though its validity is not essential to defendants' title or necessary in support of the judgment, we think the deed evidences a legal conveyance on the part of all the heirs except Johnnie Sparks, and that in the circumstances Johnnie Sparks would be estopped to declare its invalidity.
The judgment of the trial court is affirmed.