author: Walkek, P. J.

text:
    Thomas Henderson v. Alex. Beaton et als.
    (Case No. 838.)
    1. Deeds.— An instrument of writing in form as follows:
    “Republic op Texas, County of Sabine.

    “ This indenture, made and entered into this the 20th day of November, 1839, by and between Mastín Latham and his wife Sarah, of the republic aforesaid, of the first part, and William F. Henderson, of the county of Nacogdoches, and republic aforesaid, of the second part, witnesseth: that the said party of the first part, for and in consideration of the clearing out (i. e.), locating; surveying and paying the government dues on one league of land, the headright of said Mastín Latham, by these presents have granted, bargained, sold, aliened, enfeoffed, transferred, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, enfeoff, release, transfer, convey and confirm unto the said party of the second part, his heirs and assigns, that certain tract or parcel of land ” (describing it, and after clause of general warranty concluding), ‘ ‘ and hereby waiving all laws or matters of form that might impair this deed of conveyance, provided that said league of land shall be divided equally, according to quality and quantity, by said Henderson or his agent, as soon as possible, and said Latham to take choice of. halves,” is an absolute, unconditional conveyance, and not an executory contract.

      2. Land — Forfeiture fob breach of conditions in a deed.—See this case for a full discussion of the law governing estates in land upon condition, and their forfeiture for breach of conditions precedent or subsequent, contained in the deed creating the estate.
    3. Stale demand — Trespass to try title.—The antiquity of a previous perfected and vested right does not involve the doctrine of equitable bar, and where one sues in trespass to try title and for possession and partition of land claimed under an executed deed, and not an executory contract, the defense of stale demand is not applicable.
    4. Limitation.— In the absence of evidence showing payment of taxes, the defense of limitation of five years cannot be considered,

      o. Coloe of title.—Mere naked possession of land for three years, united to a subsequently acquired chain of title, will not constitute title or color of title within the meaning of the statute of limitations. 26 Tex., 731; 27 Tex., 249.
    6. Ten teaks’ limitation.— Where the defendant relies on ten years’ possession he must show privity between .himself and those whose possession he claims, as part of his title, under the statute. 46 Tex., 222. '
    Appeal from ¡Navarro. Tried ’below before the Hon. F. P. Wood.
    The facts sufficiently appear in the opinion.

      William Croft, for appellant.

      C. M. Winlcler, for appellees.
   Walkek, P. J.

This is an action of trespass to try title and for partition of an undivided one-half interest in a league of land lying in ¡Navarro county, wherein this suit was instituted, by the appellant Thomas Henderson against Alexander Beaton, one of the appellees.' The original petition was filed September 26,1870. By an amended petition, filed December 6, 1870, G. A. Sessions, guardian of Catherine Carter, a minor, W. S. A. Kirksey, administrator of the estate of Isaac Kirksey, D. B. Bakestraw and her husband, G. A. Bakestraw, James I. Kirksey,»E. Bather and her husband, David Bather, alleged to be heirs of the estate of Isaac Kirksey, deceased, who, as plaintiff alleges, claim to have title to said land, were prayed to be made parties co-defendant with said Alexander Beaton.

The original answer of the defendant Be’aton consisted of a general demurrer, and general denial of the allegations of plaintiff’s petition, with the plea of “ not guilty.”

¡No service, nor, indeed, issuance of process for service on the other co-defendants with said Beaton ;■ yet of them G. A. Bakestraw and D: B. Bakestraw, G. A. Sessions, guardian of Catherine Carter, and" W¡ S. A. Kirksey,'administrator of Isaac Kirksey, deceased, appear and answer 'on July 14,1871, by general demurrer, general, denial, and plea of “ not guilty,” and adopting the answers “ heretofore ” filed by the defendant Beaton.

Thereafter, to wit, ¡November 20, 1871, defendant Alex. Beaton filed for himself alone an amended answer, setting up, in bar of plaintiff’s action, the statutes of limitation, respectively, of- ten, five and three years, and also that “ the alleged contract sued on is a stale demand, more than thirty years having elapsed since the date of said contract, and during all this great length of time, said plaintiff, and those under whom he claims, have taken no steps whatever to assert his rights, if any he ever had.” Also, that the plaintiff, long prior to the institution of this suit, had wholly abandoned said contract; and further, “ that William F. Henderson, one of the parties to the alleged contract between said Henderson and Latham, under whom the plaintiff claims title, on the - day of December, 1853, being requested to comply with said contract by said Latham, wholly repudiated , said contract, and refused to comply therewith, and then and there forfeited and abandoned the same;” and lastly, a denial specially that the said plaintiff or Wm. F. Henderson, or any other person under whom the plaintiff claims, ever ‘ cleared out,’ located, surveyed or paid the government dues upon the headright league of Mastín Latham.”

The plaintiff’s petition is in the usual form for actions of this character, alleging ownership simply, without setting forth the evidence thereof, or otherwise alleging or describing his muniments of title. The petition describes the land whereof he claims to own “ an undivided half interest ” as a tract or parcel of land lying in ¡NTavarro county, “known as the M. Latham league, and bounded as follows,” and, proceeding to set out the field notes thereof, afterwards alleged that the defendant, Alexander Beaton, on the 1st day of October, 1869, entered into possession thereof and committed divers trespasses, etc.; that he believes the defendant to be the owner of the other undivided half of said league. Plaintiff further alleged that he had divided the land into two equal parts, having reference to quality, quantity, prairie, timber and all other advantages and disadvantages, and, for the sake óf an amicable division of said 'land, tendered to said Beaton choice of halves, only reserving to himself the right to the half other than that which might be chosen by him, and that said Beaton refused to take choice, and denies petitioner’s right thereto, claiming title to the whole in himself. Petition concludes with prayer for judgment for his land and for partition.

The demurrers do not appear to have been acted upon by the court, nor presented for action, and may be deemed to have been waived.

A jury was waived, and the cause submitted to the court on the law and the facts. Judgment for the defendants, from which the plaintiff appealed to the supreme court.

The appellant assigns as error that the court below erred “ in rendering judgment against him as rendered.”

The plaintiff supported the allegations of his petition by evidence showing a perfect chain of title from the government down to himself, and which was sufficient to establish ownership and the corresponding right to possession, and partition of the land sued for, unless the instrument of writing executed by the original grantee, Mastín Latham, to William F. Henderson, through whom the plaintiff derives title, if any, is insufficient to convey the interest claimed by the plaintiff. It is insisted by the appellant that the instrument referred to is a deed, valid in every essential particular to vest in William F. Henderson the fee-simple title to an undivided half of the league of land described in the petition. On the other hand, it is maintained by the appellee, Beaton, that said instrument was nothing more than an ex-ecutory contract between the parties to it, whereby Latham should thereafter, on the fulfillment by said William F. Henderson of the conditions and stipulations contained in said contract, make to the latter the contemplated conveyance of the land.

If the appellees successfully maintain their construction of the instrument referred to, the defense set up, of a stale demand and abandonment, becomes pertinent and material, and would doubtless warrant the judgment which has been rendered in the district court.

If, however, the instrument is such a deed as vests in William F.' Henderson the absolute fee-simple estate of Mastín Latham, the original grantee of the league of land involved in this controversy, the plaintiff’s chain of title becomes complete and perfect, and is not otherwise assailed or controverted by the defendants, except in so far as relates to the defenses set up under the statute of limitations.

The plaintiff introduced in evidence a translated land office certified copy of the grant from the government of Texas to Mastín Latham, as a colonist of the league of land therein described, corresponding, in the field notes given, with those set forth in the plaintiff’s petition, which said grant was issued on the 5th day of October, 1835; also the instrument of writing (contract or deed, as the case may be) from Mastín Latham to William F. Henderson, for an undivided half of said land, wherein it is described as “ a league of land granted to said Latham as a colonization right,” . . . “lying and being on the southwestern branch of Trinity river, as follows,” and then sets out the field notes as the same are recited in the original grant. The characteristics of this instrument, which present there questions for construction, and relate to its legal effect, will be hereafter noticed. The remaining link in the plaintiff’s chain of title consists in the evidence adduced by him of a judgment of the district court of Havarro county, against William F. Henderson, in favor of Hat. M. Bufford, rendered on the 1st day of Hovember, 1860, for $446.72. Issuance of execution on the same, 17th day of April, 1868, by virtue of which the interest of said William F. Henderson in said land was levied upon, and sold by the sheriff of the county, at which sale the plaintiff became the purchaser, and to whom the sheriff made a deed in pursuance thereof. The instrument of writing from Latham to William F. Henderson, relied on as a conveyance, was recorded in the office of the county clerk of Eobertson county, on the 28th day of June, 1840; Havarro county, subsequently created, and including within its territory the land in controversy, lying in that which was formerly Robertson county. The instrument itself need not be here set out in full, in order to apprehend the grounds of controversy between the parties, respecting the time, character and legal effect of the same; it commences thus:

“ Republic of Texas, County of Sabine.

This indenture, made and entered into this the 20th day of November, in the year of our Lord 1839, by and between Mastin Latham and his wife Sarah, of the republic aforesaid, of the first part, and William F. Henderson, of the county of Nacogdoches and republic aforesaid, of the second part, witnesseth: that the said party of the first part, for and in consideration of the clearing out (i. <?.), locating, surveying and paying the government dues on one league of land, the headright of said Mastin Latham, by these presents have granted, bargained, sold, aliened, enfeoffed, transferred, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, enfeoff, release, transfer, convey and confirm unto the said party of the second part, his heirs and assigns, that certain tract or parcel of land,” etc., proceeding to describe the land as hereinbefore has been stated, which description being succeeded with all the other usual and apt terms of conveyances by deed employed in the several respective parts of a complete and formal warranty deed; concluding the clause'of general warraiity thus: “ and hereby waiving all laws or matters of form that might impair this 6 deed of conveyance.’ ”

Succeeding the last recited paragraph, and concluding the entire instrument, occur the following words, viz.: “ Provided, - that said league of land shall be divided equally, according to quality and quantity, by said Henderson or his agent, as soon as possible, and said Latham to take choice of halves.” Signed by Mastin Latham alone, and witnessed by two subscribing witnesses.

The portions of the instrument upon which the counsel for the appellees predicates his argument that it is an executory contract, with conditions precedent to be performed by Wm. F. Henderson, rather than an absolute deed, are these: “ For and in consideration of the clearing out (i. <?.), locating, surveying and paying the government dues on one league of land, the headright of said Mastín Latham, by these presents grant,” etc.; and again, “ provided that"said league of land shall be divided equally, according to quality and quantity, by said Henderson or his agent, as soon as possible, and said Latham to take choice of halves.”

The forms of expression employed to give effect to whatsoever may have been the intentions or agreement of the parties, certainly was not in the ordinary and usual, nor the most natural and favorable mode, to indicate and express mutual and reciprocal acts to be done by each, and thus to define the terms of an executory contract whereby on the doing of certain things by Henderson, and then only, that Latham should convey to him the land. If the services of Henderson had been required to “ clear out (i. e.), locate, survey and pay government dues ” on land yet in the future to be cleared out (i. <?.), located, surveyed, and the government dues accruing to be thereafter paid, and the parties had intended to reduce to writing and form the intelligible evidence of such contract, whether the form of the writing partook of the shape of a bond for title, expressing the reciprocal conditions to be imposed upon each of the contracting parties, or whether it should partake in form of the nature of a deed, or indeed in whatsoever shape it might be manifested, it would be expected that the substantial and material fact would be indicated that the services thus required of the supposed grantee or covenantee who should thus “clear out, locate,” etc., were to be performed in the future, by the use either of such direct expressions as would indicate that fact, or else that it would appear from the general nature of the contract and objects contemplated as indicated by the instrument. But the instrument made and adopted by them to evidence their agreement is, at least, and very certainly, wanting in the appearance of any such effort thus to express and define a contract of that nature, with any approach to that degree of certainty or fullness which might have been looked for, if such had been their object. So far from it, indeed, that the instrument is, in form, an absolute warranty deed, and not otherwise qualified in respect to its immediate effect as such, than as may result from the interpretation to be given to the above recitals of the consideration (and the provision respecting partition), which assuredly do not in express terms, nor by any fair and satisfactory implication derived alone from the language itself, indicate that the services referred to as the consideration of the deed were to be performed in the future.

If the language employed be alone referred to from which to deduce the conclusion that the consideration contemplated services yet to be rendered, there is nothing in the isolated sentence itself to warrant any other supposition than that the grant was then being made in consideration ” of the past, accepted and acknowledged services therein recited. Such is the fair and natural interpretation of the language itself; and the want of any counter or qualifying meaning other and different from that which attaches to the apparent meaning, considered with respect to the place it occupies in the sentence with reference to the subsequent words of absolute conveyance and warranty of title, renders still more conclusive and satisfactory the proposition that, from the mere words themselves, there is no warrant for the inference that the true meaning of the parties can only be reached'by supplementing the sentence with ideal words to signify that Henderson should thereafter v clear out, locate,” etc., as the condition upon which the conveyance depended.

Words used in a deed of conveyance are taken most strongly against the grantor. Potter’s Dwarris on Statutes, 174.

In addition, however, to these reasons for the interpretation which we place, upon this clause of the instrument, we will refer to evidences both intrinsic and extrinsic of the instrument which corroborate and confirm the justness of the construction arising and derived from the mere words themselves. First, as to the evidences intrinsic and derived from the instrument itself: The conveyance to Henderson was made on the 20th day of Hovember, 1839, and it sets out the field notes of the headright league, and recognizes thereby the completion of the matter, at least of the “ locating and surveying ” of the land, which the grantor describes as the same which had been granted to him as a colonization right; therefore, as to the rendition thereafter of services in respect to locating and sitrveying the land, it would have been but the requirement of a needless, if not impossible, act, to have made provision therefor. Further corroboration exists in the descriptive words at the conclusion of the clause of warranty before quoted, designating the instrument as “ a deed of conveyance

The extrinsic circumstances of corroboration in support of the construction given of the terms used consist in the fact that the original title was complete and perfected in October, 1835, four years precedent to the date of the instrument of writing, or deed, as it may be properly termed, from Latham to William F. Henderson. There is no pretense made, nor can any under the evidence be made, that the transaction between Latham and Henderson had reference to any other location, surveying or paying of government dues than that which referred to the grant, location, surveying and perfection of the title to Latham’s headright as a colonist, and the identical, same title as that whereof the plaintiff introduced the land office copy as evidence. Such being the case, it would be an incongruous perversion of all the facts and their relations to each other to suppose that Latham, in making the conveyance to Henderson, as the consideration therefor, stipulated in Hovember, 1839, for the “ clearing out {i. <?.), locating, surveying,” etc., of the land, thus long before perfected into a complete title.

And, lastly, there is in the evidence the positive, direct testimony of William F. Henderson himself, who stands unimpeached as a credible witness, who stated that “ the consideration therein expressed was correctly set out; that the services therein set out were rendered partly by himself, and others were paid by witness for performing the services not rendered by himself.” That witness stated that he did not locate the land, but bought the contract from the party who had located it, and surveyed or had it surveyed; that he had himself paid the surveyor’s fees and government dues, and obtained the grant therefor. He also stated that Latham, in 1857 or 1858, had offered him $1,000 for his interest in the land, which offer was refused.

If the language of the clause is such as to present no ambiguity requiring or allowing of parol evidence to explain it, it must be construed without the admission of parol testimony, under the familiar rule of evidence to that effect; and on the hypothesis that there is no such ambiguity, the proper construction of the instrument, as we determine, will disallow the interpretation that the clause referred to contemplates or refers to future services to be performed.

On the other hand, if there exists such ambiguity in the . clause which warrants the admission of parol evidence in aid of a proper interpretation, then such parol evidence, together with the attending circumstantial evidence bearing upon the subject, places it beyond question that the consideration meant and referred to was a past and executed, not a future one, intended to embrace future services, the nonperformance of which should defeat the conveyance.

To reverse, however, the construction we have placed upon the “ consideration ” clause, and allowing, for the argument, that the “ clearing out (i. e.), locating, surveying and paying,” etc., contemplated and meant that said Henderson should do and perform those acts thereafter, what then is the legal effect and proper interpretation to be placed upon the instrument? Such a consideration, clearly, would support' the conveyance — it would be a valuable consideration — a good consideration even would be adequate. A want or failure of consideration is no ground of avoidance of a deed. 3 Wash. Real P., p. 320, sec. 8, and authorities cited. Thus where, in consideration of a promise to marry him, the grantor gave a deed of land, but died before the marriage took place, it did not affect the validity of the deed. Smith v. Allen, 5 Allen, 458.

There is nothing in the deed to indicate that such a consideration was intended to operate as a forfeiture or postponement of the vesting of the title, and the clear language of the deed imported just the contrary effect. There is no view of which the subject is susceptible, which can successfully maintain the proposition contended for by the appellee on this branch of the case before us. The deed, therefore? is a valid deed and not an executory contract; yet it remains still to construe the deed farther, and to determine whether, notwithstanding its validity as a deed, it conveys an absolute estate, or whether the- estate be one upon condition; which leads to the consideration of the concluding clause of the deed as follows: “ Provided that said league of land shall be divided equally, according to quality and quantity, by said Henderson or his agent, as soon as possible, and said Latham to take choice of halves.”

Counsel, both for appellant and for the appellees, present in their briefs the question arising under this clause of the deed, whether or not its effect is or is not to render the contract or deed executory. We apprehend that there can be no question of that kind involved; the deed speaks in the present tense, and conveys an estate absolutely, unless that estate is by the clause above quoted defeated by the happening or not happening of some contingent event; which is just what constitutes an estate upon condition (2 Wash. Real Prop., p. 2), and has no logical relation to the subject of executory contracts. It is quite questionable whether the clause quoted amounts to anything more than a specific provision for a speedy partition on terms requiring Henderson to perform the work, and designating the mode of effecting the selection of the respective parts. If such be the case, the estate created would not be defeasible by the non-performance by Henderson. “If the supposed condi-' tion of an executed grant amounts to an agreement on the part of the grantee to do certain things, it will not be held to defeat the estate if he fails to perform. In order that the condition, in such a case, should defeat the estate, the grant must be in its nature executory.” 2 Wash. Real Prop., p. 3, sec. 3. But, supposing the clause to qualify the convej'ance so as to make it a condition, the condition is evidently not precedent, but subsequent. To determine whether it be the one or the other, “the construction must depend upon the intention of the parties, as gathered from the instrument and the existing facts, since no technical words are necessary to determine the question.” 2 Wash. Real Prop., p. 5, sec. 4. The rule for testing the quality of a condition subsequent in Underhill v. Saratoga R. R., 20 Barb., 455, is, “if the act or condition required do not necessarily preclude the vesting of the estate, but may accompany or follow it, and if the act may as well be done after as before the vesting of the estate; or if, from the nature of the act to be performed, and the time required for its performance, it is evidently the intention of the parties that the estate shall vest, and the grantee perform the act after taking possession,-then the condition is subsequent.” See, also, Barruso v. Madan, 2 Johns., 145; Finlay v. King’s Lessees, 3 Pet., 346; Rogan v. Walker, 1 Wis., 527.

If the clause created a conditional estate, under the principles and rule above given for a proper discrimination between conditions precedent and subsequent, it would seem clear enough that in this case the condition wTas subsequent. If that be true, the rule of law applicable to such a condition, when relied on to work a forfeiture, demands a strict construction. 2 Wash. Real Prop., p. 6, sec. 5. “ Upon these principles, where a condition applies in terms to the grantee or lessee without mention of heirs, executors or assigns, the condition cannot be broken after the death of the grantee or lessee. If heirs and executors are named, but not assigns, it will not be broken by an act of an assignee. Accordingly, where the grant of an estate was upon condition that the grantee should maintain a fence, without naming his heirs, executors or assigns, it was held that the neglect of his heirs, after his death, to do it did not work a for feiture.” 2 Wash. Real Prop., p. 6, sec. 5.

Unless, therefore, by reason of breach of condition and the forfeiture of the estate whilst it was owned by Wm. F. Henderson, no subsequent breach of the condition by the plaintiff can affect bis title or work a forfeiture; the conveyance becomes discharged of the condition by the act of sale and deed of the sheriff. “ And, besides, not only is the estate thus preserved against forfeiture, in the hands of the subsequent owner, as against the grantor even, but the right of the grantor to defeat the estate held upon condition is one which cannot be aliened or assigned; nor can the benefit oí a condition in a grant be reserved to any one but the granto? and his heirs; a stranger cannot take advantage of it.” 2 Wash. Real Prop., pp. 11, 12, sec. 14. Breach of conditions in deed (otherwise of conditions in law) allow only him who creates the estate to take advantage of the condition I by entering and defeating the estate.

Breach of the condition by no means operates ipso facto as a forfeiture of the estate; but quite the reverse. “Nothing short of an actual entry will serve to defeat an estate, upon a condition which has been broken.” 2 Wash. Real Prop., p. 13, sec. 16; and Fonda v. Sage, 46 Barb., 123. “It cannot be done by action.” Shep. Touch, (fol. ed.), 496; Co. Litt., 218 (a); Chalker v. Chalker, 1 Conn., 79, and numerous others which may be added.

The forfeiture of the estate, then, must, if at all, be enforced, when a breach of condition warrants it, by the election of the person who has the right to enforce it to do so. That person must be the grantor himself. And it must be made to operate upon the title of the grantee whilst in his hands, and not subsequently in the hands of an assignee; and the mode of doing so must, at common law, be by entry upon the land. The mode may, perhaps, be qualified and different under our laws.

Under the facts of this case, if the clause in the deed which is under consideration had amounted to a condition subsequent, and might have had the legal effect, on the breach thereof, to divest the title, yet, nevertheless, no forfeiture has been enforced, nor proceedings attempted by the proper party against any proper party thus to create or effect such a result; and now, for the first time, an assignee under Latham’s title pleads, in effect, the forfeiture of the estate against the plaintiff, who in turn holds under the sheriff’s deed, divesting Wm. F. Henderson of all right and title,— and it is not clear that Latham, before he conveyed to Ferguson and Beaton, had ever made his election to treat the failure to partition as a breach of condition,— and certainly made no entry upon the land, nor did any equivalent act {as by suit at law), if any other act under our laws would have served the purpose, nor take any legal step looking to the forfeiture of the estate held upon condition by Wm. F. Henderson. Under the most favorable view that may be taken for the appellees of the legal effect of the clause under consideration, and applying the evidence with the most favor that may be claimed for it, it is impossible to render the defense available. “ Because such right is not assignable, it is universally true that a stranger cannot take advantage of a condition. Such right is not a reversion, nor a possibility of a reversion, nor is it an estate in land; it is a mere chose in action, and, when enforced, the grantor is in by the forfeiture of the condition, and not by reverter.” 2 Wash. Real Prop., p. 12, sec. 14, and authorities cited.

We do not, however, regard the clause in question as having been inserted in the deed as a condition either precedent or subsequent; but as a provision made by the parties, having for its purpose the speedy partition of their respective interests on stipulated terms agreed to and understood beforehand. We have, nevertheless, discussed the subject upon an opposite hypothesis, conceiving, as we do, that under the most favorable view that may be taken of the law and facts applicable to the clause under review, the result must be the same, and the deed to Wm. F. Henderson held to be an absolute, unconditional conveyance to him of an equal undivided interest in the land. We have discussed the subject upon common law tests and principles, not unobservant, nevertheless, that the deed referred to was executed a short time before the common law was adopted by the republic of Texas, and took effect the 16th day of March, 1840.

Under the view we take of the legal effect and construction to be given to the deed from Latham to Wm. F. Henderson, it is apparent that the defense of staleness of the demand ” is inapplicable to the nature of whatever right of action exists under the deed from Latham; the deed being executed, and not an executory contract, and the remedy sought being for possession and partition by action of trespass to try title, the antiquity of the heretofore perfectedjmd vested right will not involve the doctrine nor application of the equitable bar appropriate to a different kind of claim or right. Mere laches or delay of the owner in bringing suit to recover land to which he has legal title will not defeat his action, where there has not been actual adverse possession for a sufficient length of time to support a plea of the statute of limitations. Williams v. Conger, 49 Tex., 582. Under the evidence developed on the trial, the case presented is a pure question of title, depending upon the completeness and perfection of the chain relied on by plaintiff to support his assertion of ownership, and not one of undeveloped, unascertained, or latent claim or demand.

The remaining defense is that of the statute of limitations of three, five and ten years respectively. • At the institution of this suit the bar of ten years had not become completed under the most favorable view to be taken of the evidence relating to the duration, continuity and adverse character of the occupancy. From the beginning of the year 1854, the year in which Stone, the first occupant, settled on the land, to the 2d day of March, 1861, was seven years and two months. By thef constitutions of 1866 and 1870, the period of time subsequent to the last-named date up to the 31st day of March, 1870, is not to be computed. This suit-was filed September 26, 1870, thus giving a period of occupancy less than ten years. Of this construction of the constitutions, in Wood v. Welder, 42 Tex., 396, it is said by the court that the adjudications' of the question are too well settled, and have been too long acted on, to be now disturbed. See, also, McMullen v. Hodges, 5 Tex., 73; Smith’s Comm. on Stat. & Cons., 166-168; Sedgwick on Cons. Law, 411, 412, 682, 683, 692-3; Bender v. Crawford, 33 Tex., 756-7.

The entire absence of any evidence tending to show that the defendant paid taxes on the land renders the consideration of the defense, so far as relates to the plea of the statute of five years’ limitations, unnecessary.

To constitute an adverse possession of three years a bar, it must be “under title or color of title.” “By the term title, as used in this section, is meant a regular chain of transfer from or under the sovereignty of the soil.” Pasch. Dig., art. 4622. The evidence expressly and in terms shows that the tenants who occupied the land were placed upon it and held it as the tenants of Latham. The witness Meazell says that Stone, the first occupant, and who went upon it in 1854, “ remained upon it about one year under Beaton as the agent of the Latham heirs.” Again, that “the land has been held by Beaton as the agent or attorney of the Latham party;” and speaking of Donaho’s tenancy, “he claimed under Major Beaton likewise.” The written lease between Beaton and Donaho expresses that he leases and holds the same “ as the tenant of Mastin Latham.” The contract of lease is signed by “Mastin Latham, by Alex. Beaton, agent and attorney.” Witness Meazell states that Stone, Donaho and himself held the land as “ tenants of said Mastin Latham, under Beaton.” The testimony of Patterson is to - the same effect.

The defendant read in evidence a deed from said Latham to James Ferguson to the entire league of land, dated September 20, 1849, recorded in the year 1851; also a deed from Ferguson to Geo. T. Wood, dated 17th October, 1856, recorded February 9, 1857, and deed from the heirs of Wood to Beatou, dated October 15, 1869, recorded December 6, 1869. Also a deed from Mastin Latham to Beaton of same land, date April 11, 1868, recorded May 26, 1868.

This chain of title is utterly repugnant to the possession claimed under it — and vice versa, the possession and occupancy are opposed to the title. The possession was not under, but against, that title. The tenants were those of Mastin Latham. The chain of title offered by defendant to support the occupancy being one from Latham to Ferguson, and to the assignees of the latter, Latham, if he occupied the land thus conveyed, by himself or by tenants, did so without the support of a title which he had once owned but had since conveyed, and whatever rights could be derived by him under such occupancy would necessarily arise from a possession without title or color of title; and we are of opinion that no such possession can be made available under the three years’ statute of limitations. The defendant Beaton in his testimony says that the deed to himself from Latham was made at his instance, to enable him to make and carry out a compromise and settlement then contemplated with the Wood heirs in a lawsuit then pending between them and Mastín Latham; and the defendant, in his brief before us, disavows said deed as having ever been relied on, and declares that it is not now relied on as a part of his title “ as against the appellant.” And besides, a purchase by a party knowing that his grantor had previously sold the land to another destroys thereby the conveyance as a muniment of title, under the fifteenth section of the act of limitation. Eliot v. Whitaker, 31 Tex., 412. Then the deed to him from Wood’s heirs, made to him within less than one year previous to the institution of this suit, constitutes the paper title through which he must claim; and the naked adverse possession of Latham, whose possession was against and not under the title of the Wood heirs, cannot avail the defendant.

Wright v. Dailey, 26 Tex., 731; Harris v. Hardeman, 27 Tex., 249, support the view upon which we rest our opinion respecting the defense of the three years’ statute of limitations; and it may be added that the same reasons that exist against the validity of that defense are alike applicable to the defense of ten years’ limitation; the possession being that of Latham, under whose deed to him the defendant Beaton disavows claiming, therefore, even though the ten years’ bar had become complete before the institution of this suit, whilst it would prevail for Latham against the title through which Beaton claimed (that through the heirs of Wood to him), it could not avail the defendant Beaton. Where a defendant relies on the possession of ten years required by article 17 of the statute of limitations, he is required to show privity between himself and those whose possession he claims, as part of his title, under the statute. Trueheart v. McMichael, 46 Tex., 222.

The deed purporting to be a conveyance of the land from the heirs of George T. Wood is made by W. W. Whitehead for himself and as agent and attorney in fact for the three other grantors, viz., his wife, Elizabeth A. Whitehead, D. S. Gindrat and H. A. Gindrat, the names of all of whom are signed to the deed by said W. W.-Whitehead, “for himself and the above parties.” There is no proof whatever of any authority or agency, and it appears on the face of the deed that Elizabeth A. Whitehead is a married woman, the wife, as stated, of said W. W. Whitehead. She being one of the heirs, her husband could not have been. It would seem that such an instrument, under the evidence in the record, thus wanting in proof of the agency, or of the privy examination and acknowledgment of the married woman, in connection with the fact that her husband was the person thus assuming to act for her, conveyed no title to the defendant Beaton, nor such color of title as would maintain the defense of three years’ adverse possession, even should there exist no other impediment.

When Beaton acquired his deed of conveyance from Latham, if he had even claimed under it, his chain of title, on its face, was such an one as would support a subsequent possession and defense under the three years’ statute of limitations from the date of its acquisition, but the title thus acquired would not retroact upon the naked, unsupported possession of Latham, and constructively convert the possession thus held by Latham into a possession under title, or color of title, to the benefit of a grantee, thus uniting a mere naked possession with a chain of title subsequently acquired.

The conjunction, therefore, of the title of the tenants in possession, not itself a bar, with the title or color of title held by Wood’s heirs, or under the chain of title derived under Latham’s deed, gives no additional strength to the nsufficiency or defectiveness of the separate elements requisite to co-exist in order to bar plaintiff’s superior title.

[Opinion delivered November 8, 1879.]

In every light in which wé have been able to view the questions that relate to the statute of limitations, pleaded in this action, the defense must fail.

We conclude, therefore, that there is no sufficient basis for the judgment that has been rendered, and that it should be reversed. The appellant’s counsel asks further that the supreme court shall also render such judgment for the plaintiff against the appellees as should have been rendered by the district court. In view of the necessity of ascertaining with greater certainty the relative rights of all the respective owners who may be entitled to partition than can with a due regard to judicial accuracy be determined from the results of the trial which has been had, and perhaps other additional reasons may be found, we do not deem it proper thus to dispose of the case before us, but are .of opinion that the judgment should be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Quinan, J.

license: Public Domain

text:
    Samuel McDonna et als. v. Isaiah Wells et als.
    (Case No. 851.)
    1. Improvements by husband on wife’s - separate estate.— The husband cannot, by making improvements with his separate means on land, the separate property of his wife, acquire thereby any lien upon or interest in the wife’s separate estate, which, by his deed, he can convey to another.
    2. Husband and wife — Deed.— The deed of a married woman to her husband, not executed in conformity with the statute regulating the nfanner in which married women shall dispose of their separate estates, is a nullity. Berry v. Donley, 26 Tex., 747.
    3. Minors.— Minor plaintiffs must be represented by their legally qualified guardian, or, if they have none, by a special guardian- appointed by the court.
    Appeal from Lamar. Tried below before the Hon. R. R Gaines.
    The opinion states the facts.

      Wright <& McDonald, for appellants.

      Dale & Scott, for appellees.
   Quinan, J.

Appellants brought suit against appellees for the recovery of a tract of land in the common form of trespass to try title. The appellees pleaded the general issue and title in themselves as follows:

1. By conveyance from E. G-. S. Wells to Sarah J. Wells, and from Mary Wells, the deceased wife of E. G-. S. Wells, to him; Mary Wells being the mother of the appellants, the ■former owner of the land, under whom appellants claim as heirs.

2. They claim in the event that the conveyance from Mary Wells to E. G-. S. Wells be invalid, that E. G. S. Wells, as surviving husband of Mary, inherited one-third of the land for life, which passed by his deed to Sarah Wells.

3. They set up that E. G. S. Wells, during the existence of the marriage between himself and Mary Wells, made valuable and permanent improvements on said land in good faith, to wit, a fine residence of the value of $2,500; that he has erected and placed on said premises a large amount of fencing, and has inclosed and put in cultivation about one hundred acres of said land, which is and was of the value of $1,000, all of which he pleads in reconvention, and that said land be sold to satisfy such judgment as they may recover therefor.”

4. They allege that they have been illegally deprived of the possession of the land by appellants; pray restitution and judgment for $1,000 for rents, etc.

5. They “ further state that E. G. S. Wells, one of the defendants herein, is how, and was at the date of the institution of this suit, the legal, qualified and acting administrator of the estate of Mary A. Wells, alias McDonna, deceased, etc., and that said administration has in no manner been terminated or closed.”

It is unnecessary further to refer to the pleadings or to the evidence. The case was submitted to the court, who decreed that the plaintiffs, Samuel, William, and Jennie Me-Donna, ought to recover judgment for two-thirds of the land in controversy in fee, and the remainder of the other third after the death of E. G. S. Wells in fee, and that the defendant Sarah J. Wells recover one-third interest in said lands for the life of E. Gr. S. Wells, and that she recover $2,000 for improvements on said land, and that said sum constitute a charge on the land in controversy. The court further decreed that Sarah J. Wells recover from the defendants $1,333, as two-thirds the value of the improvements placed upon said lands by E. Gr. S. Wells, defendants’ guardian, and that plaintiffs have twelve months in which to pay said sum of $1,333, and if not paid at the expiration of that time the clerk of the court to issue an order of sale, etc.

Appellants gave notice of appeal, and the case is properly before us for revision.

The assignment of error is sufficiently pointed to raise the questions the determination of which is decisive of the case.

These questions are, as to the validity of the convejmnce from Mary Wells to her husband, E. Gr. S. Wells, and whether Sarah Wells, by the conveyance to her from E. G, S. Wells, acquired a right in this action to recover for the value of improvements made by him upon his wife’s land during the coverture.

Upon the first question we have no difficulty in saying that the conveyance from Mary S. Wells to E. G. S. Wells, not having been executed in conformity to the statute regulating the manner in which married women shall dispose of their separate estate, was a nullity and ineffectual for any purpose. Berry v. Donley, 26 Tex., 747.

The question whether Sarah Wells is entitled to recover the value of improvements made by E. G. S. Wells on his wife’s land is, however, one of more importance. In the solution of it we can derive no aid from our statute giving to the possessor in good faith the right in certain ways to recover the value of improvements made by him.

By that statute the right of recovery is given to him who in good faith believes the land upon which he puts the improvements to be his own, and who claims it as his own ad-Tersely to all persons whomsoever.

But where improvements are made by the husband upon the land of the wife, he knows that he is making them upon land not his own, and of which' he has possession only by virtue of his marriage, and over which he holds a limited control and right of management.

The portions of our statute law which bear directly upon this question are briefly as follows: Article 4641 provides that all property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired after-wards by gift, devise or descent, as also the increase of all lands or slaves thus acquired, shall be the separate property of the wife; provided, that during the marriage the husband shall have the sole management of such property.

Article 4642 provides that all other property acquired during the marriage shall be common property.

Article 4643 provides that the husband and wife may be jointly sued for all debts contracted by the wife for necessaries furnished herself or _ children, and for all expenses which may have been incurred by the wife for the benefit of her separate property.

Article 4644- provides that if, upon the trial of any suit as provided for in the fourth section of this act, it shall appear to the satisfaction of the court and jury that the debts so contracted or expenses so incurred were reasonable and proper, the court shall decree that execution may be levied upon either the common property or the separate property of the wife, at the discretion of the plaintiff.

Article 4646 provides that the community property of ■ the husband and wife shall be liable for all their debts contracted during the marriage, except in such cases as are specially excepted by law.

It is also settled by repeated decisions of our court that the proceeds of the wife’s property, the rents, and crops raised upon her lands, are common property.

The object of these provisions of the law cannot be misunderstood. It was the evident intent to protect the wife in the ownership of her separate estate, and while giving to the husband the management of it, and making its proceeds the common property of both, to shield the corpus of the estate from liability for the husband’s acts or contracts. Magee v. White, 23 Tex., 192. There is nothing, however, in these provisions of the law from which can be derived any right or power vested in the husband to bind the estate, or create a charge upon it. If under his right of management we concede his power to make large expenditures upon it for improvements, and charge the estate for the payment of them, the very object of the law, to protect the corpus of the estate, might be defeated, and the wife might be “improved,” so to speak, out of the property. If it be said that the wife may own property which is unproductive and expensive, and that it would be prudential care and management of it to so improve it as to render it rather a source of revenue than loss, that case, it would seem, is not unprovided for; for under the statute she has the right to contract and to incur expenses for the benefit of her property. But this must be her act with the consent of her husband, and not his, and in that case the expense would seem to be primarily a charge upon the common property, or, if a charge upon the separate estate, it would be such upon her estate generally, unless specifically by contract fixed upon specific property. In Rice v. Rice, 21 Tex., 58, where the lots improved were the separate property of the husband, but the improve..ments were found by the jury to be community property, Judge Hemphill says: “But the verdict, so far as it finds the improvements on the lots to be community property, is correct only in a modified sense. They are fixtures attached to the soil, and cannot, in the nature of things, be divisible in specie where one of the joint owners has no interest in the land upon which they have been erected. Hence results the rule that the community estate must be reimbursed for the costs of buildings erected by joint labor or funds upon the separate property of one of the spouses, and this in effect vests the improvement in that spouse, and entitles the other to one-half of the costs.” This is said in a suit for divorce, where the controversy was as to the division of the property, and where, in favor of the wife, his interest in the community property was charged with the cost of the improvements made by the husband upon his separate property.

In Lewis v. Johns, 24 Cal., 99, where it was sought to make the separate property of the wife liable for the value of the husband’s labor, supervision and management of it, it is said: “ The husband cannot, by any independent act of his, acquire an interest in the separate estate of the wife. . . . If he acquires any right whatever as against his wife by virtue of his supervision and labor, it is not a right in the nature of^a lien on the thing supervised or upon which the labor is bestowed, but merely a right of compensation. ... In the absence of an express agreement to that effect, there is no implied obligation on the part of the wife to compensate the husband for his services, and in either case there would be only an imperfect obligation which neither the husband nor his creditors could enforce.”

Whether, in any case, there may be an equity outside the statute, in the settlement of the community estate, to compensate the husband for the expenditures made either with his own means or the common property, in the improvement of the property of the wife, or whether °we are to' regard such expenditures as a gift to the wife, it is not necessary for us to decide; but we think we cannot err in holding that, by making such improvements, he acquires no interest in the separate estate, or lien upon it, which, by his deed, he can convey to another. We conclude, therefore, that the judgment of the court was erroneous in charging the land of Mrs. Wells with the value of the improvements and decreeing a sale of it.

ÜSTor, while we believe that this determination is strictly in accord with the word and spirit of our statutes regulating the marital rights of parties, can we perceive that there is in it anything harsh or inequitable. Mr. Wells knew that in making large expenditures upon the property of his wife, the law denied him the power to incumber it for his reimbursement. He must be presumed, then, to have acted from a tender regard for his wife and the benefit of her estate, and with some consideration of the profits which would accrue to him by rendering that estate more productive.

[Opinion delivered November 12, 1879.]

Should the coverture be long continued and prosperous, he would in time be amply repaid for his outlay; and as in that event he would be under no duty or obligation to. account to his wife’s estate for the profits he had made, so in the event of an unfortunately more brief duration of the marriage, there could be but small equity in holding the wife’s estate accountable to him for the profits which did not ensue — for the expenditures which had not been realized from it.

In this record there are other- errors which it may be proper to notice. The minors plaintiff must be represented by their legally qualified guardian, or, if there is none, by a special guardian appointed by the court.

The defendant is, of course, entitled to partition of the estate of one-third for the life of E. G..S. Wells, and the decree should determine the amount due her for her one-third of the value of the use and occupation of the premises for the time when she may have been illegally deprived of the possession of the same. The judgment will be reversed and the case remanded.

Reversed and remanded.


author: Walker, P. J.

text:
    Thomas J. Clements et al. v. A. C. Neal.
    (Case No. 859.)
    1. Vendor’s lien—Note to third party.—It is not essential, in "order that the purchase money due should preserve the attributes and privileges of a vendor’s lien, that the amount due should be made payable to the vendor; it may be made payable to other parties at the direction of the vendor; and a new note may be given payable to a different party. The lien is unaffected thereby. Robertson
      v. Guerin, 50 Tex., 317; Ellis v. Singletary, 45 Tex., 27; Wright v. ■ Wooters, 46 Tex., 383.

      2. Homestead.— Whether the plaintiff obtains the evidence of his security or lien in one way or another, unless he waives it, he possesses a right precedent and superior to homestead rights subsequently acquired. Where the plaintiff held a deed of trust on land of the defendant, and the defendant, desiring to exchange his land with a third party, arranged with the plaintiff to surrender the deed of trust and take a lien on the land received in exchange, which was done, and the land so received conveyed to the plaintiff, who then transferred it to the defendant, taking a note for the amount of money secured by the deed of trust surrendered, reciting that it was for the purchase money of the land conveyed, the lien thereby created having been acquired before homestead rights of the defendant had been established, the land was subject to sale for the satisfaction thereof.
    3. Practice in supreme court.— Rulings of the court preserved by bill of exceptions, not assigned as error, will not be noticed and will be considered as waived. Art. 1037, Revised Statutes.
    Appeal from Rusk. Tried below before the Hon. A. J. Booty.
    This was an action brought by the appellee against Thomas J. Clements, one of the appellants, on a promissory note payable to himself, which recited that it was given for the purchase money of land described therein, admitting certain payments, and praying judgment for the balance unpaid and a decree for the sale of the land. Harriet E. Clements, the wife of the defendant, intervened, and the pleadings of herself and of her husband, and the case developed in evidence under the issues, presented as the principal material question for solution, whether the note and lien claimed by virtue of transactions between the parties were or were not in derogation of the constitutional and statutory homestead rights of Mrs. Clements, and the land thereby improperly subjected to forced sale.
    Thomas J. Clements having purchased a tract of land on which he resided from one Gaston, there was due and unpaid $1,000 of the purchase money; besides which incumbrance, he and his wife had executed, to secure the payment of a debt to one Lawrence, for goods sold by the latter to Clements, a deed of trust on the said land, which was duly acknowledged' by them, dated 5th day of May, 1874, which deed of trust and debt afterwards were held and owned by the plaintiff. This tract of land was shown by the evidence to be worth §1,400 or §1,500. Clements in his testimony stated that he had at the time of purchase paid §1,000 to the vendor, and at the date of the transaction which has induced this suit, still owed $1,000 on account of said purchase. In January, 1875, Gaston urged payment of the $1,000; Clements was unable to pay. One Lowrie owned a tract of land and premises worth $500 or $600. Clements in his testimony estimated its value at $900, and negotiations were entered into between Clements and Lowrie for an exchange with each other of their respective places. Lowrie was to allow in the exchange the difference of £1,000 in favor of Clements, and to assume the payment thereof to Gaston, and, in pursuance thereof, Gaston did, when the matter was consummated, surrender to Clements his $1,000 note and took in lieu thereof Lowrie’s note for the same amount. Lowrie, however, declined to make the exchange of places unless the deed of trust held by Neal for $400.23. before referred to, should be released or in some.manner arranged, and in the language of Lowrie, who testified on the trial, “I told Neal there was a trade pending between me and Clements; that we wanted to swap or exchange places, and that I would have nothing to do with the trade till the Gaston place which I was trying to trade for from Clements was freed from his, Neal’s, lien.” This statement in substance was also made by the plaintiff in his testimony, and its truth is rather confirmed than questioned by the testimony of Clements himself, who, in stating the facts relating to the inducements to and the negotiations preceding the execution of the note sued on, stated that “he had agreed to exbhange places with Lowrie, but the plaintiff had a deed of trust for $400.23 on his land, and Lowrie agreed to give him $1,000 ‘to boot;’ Neal said he would give up his lien on the Gaston place for a deed from Lowrie and wife to Lowrie’s place, and take his (defendant’s) note for same amount, with lien on the Lowrie land; that Lowrie made the deed to plaintiff by consent of Lowrie, of himself and of the plaintiff, to secure him in the amount of money secured^ by trust deed on the Gaston place. That he supposed Neal told Lowrie he would not give up his lien on the Gaston land until he got a deed to the Lowrie land.” The testimony given in the case shows that in January, 1875, the defendant T. J. Clements, Lowrie and Gaston, went to the residence of the plaintiff, and in the interview between all the parties, the proposed exchange of places, with the terms proposed, as has been heretofore indicated, was developed in the conversation then had.
    Some time afterwards, during the same month, Lowrie and defendant, T. J. Clements, went to the house of the plaintiff, where deeds were prepared, but not at that time acknowledged, one from Clements and wife, conveying the Gaston place to Lowrie; the other from Lowrie and wife, conveying the land here sought to be subjected in this suit to the payment of the note sued on, to the plaintiff. Both deeds were acknowledged, and the grantees respectively received their deeds. The note sued on is dated Hay 5, 1875, on which day, as appears from the evidence, the plaintiff executed a deed to the defendant, Thomas J. Clements. The deed of trust was delivered up to Clements, together with the note secured by it. The defendants and Lowrie interchanged their respective possessions of said tracts of land by removal of both families on the same day, in January or February, 1875.
    The deed of trust was given to secure the payment of a debt for goods, wares and merchandise, sold by one Lawrence. The plea of intervention of Hrs. Clements alleges that the land prayed to be condemned to sale is the homestead of herself and husband; that the plaintiff never had title to the same, nor was he ever the owner or vendor of the same; that she and her husband were the owners thereof, having title thereto, free from the lien of plaintiff, as claimed by him, for the reason that said land was their homestead when said pretended lien was created, to the making whereof she never consented, and insists that she is not bound nor affected thereby; and because the lien claimed was given to secure the payment of goods, etc., sold to her husband, and not for any part of the purchase money, as averred by the plaintiff.
    The cause was submitted to the presiding judge, upon the law and evidence, and the court rendered judgment for the plaintiff, against Thomas J. Clements, for the amount of the note sued for, and decreed the land subject to the debt, with an order for sale.

      Drury Field, for appellants.

      Morris c& Gould, for appellee.
   Walker, P. J.

The appellants assign several grounds of error, nearly all of which refer to and reach the substantial merits of the determination which was made by the court below, in giving to the plaintiff the full measure of relief claimed by him in his petition, and they need not be now here inserted, as we shall for the present discuss this appeal upon the consideration of the fifth and last assignment of error, to wit: “The court erred in adjudging the land subject to the pretended lien of the plaintiff; said judgment for appellee being contrary to law and evidence.”

The appellants in this case do not seek to attack nor set aside the conveyance which they made to Lowrie for fraud or other cause, nor for a rescission of the contracts entered into by them with any of the parties with whom the several transactions which have been detailed occurred, nor is it pretended by either of them that they did not intend to convey, nor that they did not actually convey, as they originally intended to do, by proper conveyance, their former homestead to S. H. Lowrie; but they insist that, in effect, the contracts between themselves, Lowrie and the plaintiff, in connection, perhaps, with the actual interchange of possessions, vested in them homestead rights to the recently acquired premises as against said Neal, whose claim they insist was not that of a vendor of the land, and therefore superior to the homestead right, but was simply an ordinary debt, to the satisfaction of which the homestead could not be subjected by forced sale.

The exchange of places which was contemplated was based upon a harmonious understanding of all the material-facts upon which the transfers were proposed to be made by all concerned, so far as may be judged of from the evidence; it was xvell understood that Loxvrie was to pay the defendant Clements a difference between the places of $1,000, and no more; it xvas equally xxTell recognized as a fact, that the incumbrance upon the Clements place, by deed of trust, of $400.23, must be released or paid through and at the expense of Clements as the condition or consideration upon which Clements could acquire in exchange the Lowrie place; Clements recognized that fact, and undertook to dis-incumber his said homestead from the said incumbrance. This consideration xvas the purchase money of and for the conveyance of Loxvrie to himself (Clements) of the land he bargained for, and it was not the less so whether evidenced by a personal obligation to Loxvrie to discharge the lien in money to the holder of the lien, by deposit of the amount with Lowrie for his assurance against loss on account of the lien, or by undertaking to procure the holder of the deed of trust to remove the incumbrance. The defendant Clements adopted the last named alternative, and it xvas agreed that the Lowrie land should be chargeable xvith this purchase money consideration, and the Clements tract released therefrom, and Clements agreed to purchase said tract of land (or consummate the exchange of tracts) on the terms mentioned.

This being then the consideration or purchase money, the vendor’s lien to the extent of the amount thereof attached to the land, and it is superior and precedent to the homestead right, quoad the amount thus secured. No person can claim a homestead right as against incumbrances prior to its purchase, until it is paid for. Farmer v. Simpson, 6 Tex., 310. And it is not essential, in order that the purchase money due should preserve the attributes and privileges of a vendor’s lien, that the amount due should be made payable to the vendor; it may be payable to other parties at the direction of the vendor; and a new note may be given payable to a different party. The lien is unaffected thereby. Robertson v. Guerin, 50 Tex., 317; Ellis v. Singletary, 45 Tex., 27; Wright v. Wooters, 46 Tex., 383. And in the application of these maxims to the transaction, it results that Lowrie held the vendor’s lien for the amount of the value of said incumbrance, which was by him directed and appointed to be paid to the plaintiff, the owner thereof. And so, whether the plaintiff obtained the evidence of his security or lien in one shape or another, unless he waived the same, he would possess a right prior and precedent, and superior to the homestead right of the defendants; their rights in that regard would be subordinate to the vendor’s lien. The facts allow the consideration of another view of the defendants’ rights yet more more stringently opposed to the assertion of homestead rights as being superior to those claimed by the plaintiff as an actual vendor. The plaintiff, indeed, received an absolute deed, and conveyed the land some months after-wards to the defendant Clements, the latter executing to him the note sued on and recognizing him as his vendor, and the amount due as the unpaid purchase money. It was shown by the plaintiff’s testimony that before he would consent to release his lien on the Clements land, he made inquiry as to the value of the Lowrie land, and ascertained that, if he should get it, one Chapman would purchase .from him at the price of $500; that he then told Lowrie he would give him the deed of trust and note secured by it for the land, and at the same time he told Clements he would sell him the land for the sum of money secured by the deed of trust, but that he was under no obligation to sell to him at any price, and that he had the same right to sell to any other person. The note and deed of trust securing it was received by Clements, through whom he does not know. Plaintiff stated he gave them to Lowrie when the deeds were written and prepared for execution and acknowledgment. Clements denied receiving them from Lowrie. There is nothing in the evidence to indicate that any of the paper transactions between the parties were not made in pursuance of their well understood agreements; and on the face of the various deeds and the note it would seem ostensibly that the plaintiff was in fact the vendee of Lowrie, notwithstanding that the evidence relating to the deed of trust, just stated, is calculated to obscure the real intents of all the parties, and if so, then, in the strictest sense, -when the plaintiff conveyed to the defendant Clements the note given, the former was certainly for the purchase money, and the relation between them of vendor and vendee was exact and consummate, and its legal consequences not less indisputable; and the defense set up would not possess in such case even the appearance of plausibility. But, assuming that in carrying out a mutually understood agreement, whereby Clements’ former homestead should be relieved of the deed of trust, and the stipulated purchase money, as it may for convenience be called, due Lowrie thus satisfied, and, in order to secure the plaintiff in his debt, that the latter, with Clements’ consent, took the deed from Lowrie and wife as a security and in trust of Clements, if it was delivered and accepted with that purpose, it operated, in equity, as a mortgage as between himself and Clements (Mann v. Falcon, 25 Tex., 275), more specific and assured effect to which was afterwards given by the deed made by the plaintiff to Clements, and contemporaneous note with acknowledgment of the purchase money consideration, to wit, the land embraced in it. Under either hypothesis, the land is chargeable with the plaintiff’s debt as a vendor’s lien for the purchase money. Clements acquired only the equity of redemption of the property conveyed by Lowrie to JSTeal, and by the latter to himself, under the most favorable view to be taken of the whole transaction between the parties to it. The debt of Meal was in truth a part of the purchase money of the property and constituted a right in it prior and superior to the homestead privilege of Clements and his wife, which could not attach until the debt was discharged. Monroe v. Buchanan, 27 Tex., 241.

Brief attention may now be given to the remaining assignments of error. The second error assigned is that “the court erred in giving judgment against appellants, the facts abundantly showing that the lien claimed by appellee was attempted to be created by consent of Thomas J. Clements and A. C. Neal on the defendants and inte'rvenor’s homestead without the consent of Harriet E. Clements, the wife of Thomas J. Clements, said land being then occupied as a homestead by appellants.” The third assignment of error is, “because the evidence shows the appellee’s claimjto be only a mortgage for a simple debt for goods and merchandise, under which the homestead cannot be sold.” The fourth assignment is that “ the court erred in giving judgment for plaintiff condemning the land to be sold under the same, the evidence showing that it was not the purchase money of the land or any part of it.”

The views already expressed upon the consideration of the fifth assignment of error are deemed to include the necessary and like deductions to be drawn from a consideration in detail of the second and fourth assignments of error just quoted, unless the second assignment,means to insist that the mere act of actual occupancy by the appellants of the land now the subject of controversy gave to them independent rights as homestead claimants. Such rights, sacred and inviolable though they be, are, like others, relative; and complete as the right enjoyed by mere possession might be as against an ordinary creditor, it needs must yield to a right in another superior and paramount to it.

The evidence in the case does not maintain the proposition made in the second assignment, which assumes that the intervenor had acquired already a homestead right in the land, which in fact she had not. She and her husband voluntarily conveyed and abandoned a former, and sought to acquire another homestead. Her consent, in order to charge the land to be acquired for a homestead, was not necessary to the validity of the contract. “ A homestead is not acquired, within the meaning of the law, until title to the land on which such homestead is established has been acquired; or, at any rate, until the party is in condition to demand title; and all liens acquired before the homestead has been established must be raised, or it will be subject to forced sale for the satisfaction of such liens.” Farmer v. Simpson, 6 Tex., 310.

The error complained of in the fourth assignment has been already fully discussed and determined in this opinion. And under the view which we have taken of the case, it is wholly unnecessary to notice the ground relied on in the third assignment; we need not enter upon an abstract discussion of the nature and effect of the plaintiff’s claim further than to determine, as we have done, that it is a valid debt, not questioned in pleadings or otherwise as to its integrity, and is a lien prior and superior to the rights of homestead claimed by the appellants. To maintain that one possessed of a tract of land incumbered by a mortgage to which the homestead right was subject and inferior might exchange it for another on condition of a like interchange of the locality of the lien and incumbrance as'the consideration of the exchange, and thereby create in him an indefeasible title discharged of .the lien thus substituted, would tax the ingenuity of the legal mind in its search for a reason valid in law or in good conscience. It would, indeed, be a dismal travesty upon the maxim that “ the common law is the perfection of human reason.” Whilst our beneficent laws, by the most splendid liberality, directed under a noble policy, shield the family in its home, regardless of the condition of the former, or the value ,of the latter, against the chances of the warfare of life, .they contain no invitation to tempt the acquisition of that valued possession at the expense of the vendor, or of one having a prior legal claim against it, entitled to satisfaction.

■The first assignment of error complains that the court erred in overruling the defendants’ general demurrer to the plaintiff’s amended first and second supplemental petition. The ruling of the court on the pleadings, if entered of -record, is not otherwise manifestedfin the transcript than in the appellants’ bill of exceptions, which has reference to the rulings of the court upon pleadings other than the “ plaintiff’s amended first and second supplemental petition we are unable, therefore, to assume that the ground of complaint is well founded. The rulings which are preserved by the bill of exceptions, not being assigned as error, will not be noticed, “ and shall be considered as waived.” Art. 1037, Revised Statutes.

[Opinion delivered December 13, 1879.]

The conclusion at which we have arrived upon the whole case is, that there is no error in the judgment of the district court, and we determine and award that the same be affirmed.

Affirmed.


author: A. S. Walker, J.

text:
    Mattie Trammell et al. v. A. C. Neal.
    (Case No. 858.)
    1. Return of married daughter does not restore her as part of family—Homestead. — The return of a daughter, who has been married, and become a widow, to her mother’s homestead, does not restore her as a part of the family. Roco v. Green, 50 Tex., 483.

      2. Homestead—Inheritance — Limitation.— Upon the death of the widowed mother, her interest in the homestead descends to the daughter who has never married or left her mother, if such a daughter survives her, and is not subject to administration. A sale of the homestead by the administrator of the mother will pass no title thereto, though such a deed would form the basis of adverse possession, and, with payment of taxes, support the defense of five years’ 'limitation. Pas. Dig., 1305; Green v. Crow, 17 Tex., 188; Reeves v. Petty, 44 Tex., 289; Horn v. Arnold, 52 Tex., 161.
    3. Limitation.— The constitution of 1869 gave to married women seven years in which to sue after the removal of the disability of coverture, , and where suit was instituted within that time limitation could not be asserted. Art. 12, sec. 19, Const, of 1869; Riddle v. Biekerstaff, 50 Tex., 159; French v. Strumberg, 52 Tex.; 92.
    4. Notice — Title by inheritance.—The laws of registration do not apply to titles by inheritance, as they cannot be placed upon record, and a purchaser is bound to take notice of the relations of the parties through whom his title passes; especially so where all the parties reside in the immediate neighborhood where the conveyances are made.

      Ebrób from Busk. Tried below before the Hon. A. J. Booty.
    Plaintiffs in error, and one John Bell Gibson, a minor, brought suit against A. C. Heal, in the ordinary form of an action of trespass to try title, in the district court of Busk county, November 18, 1875, for a tract of twenty-five acres of land adjoining the town of Henderson.
    The defendant pleaded not guilty, limitation of three, five and ten years, and suggested improvements in good faith; also, that he was a bona fide purchaser without notice of plaintiffs’ claim.
    By amendments the plaintiffs set out their title as heirs of John Gibson and his wife Elizabeth, the said Mattie and Elonora being their children, and the minor, John Bell, their grandson, alleging that the land had been the homestead of the parents, and of the mother who survived her husband; that the claim of the defendant was asserted through an administrator’s sale made by one Dunham, administrator of the estate of Elizabeth, in 1867, for the payment of alleged debts against her; that the administration proceedings were in fraud of the rights of the plaintiffs, and, as to the homestead attempted to be sold, were a nullity.
    It was alleged that Mattie, in 1856, had intermarried with one James Trammell, who died prior to 1862, and that she, with two children, had returned to her mother’s, and formed part of her family at her death, in 1864. That at her death Elonora and the minor John Bell also formed part of the family. The father had died in 1850. That in 1866 Mattie had leased the homestead to one Chas. Haden, and left Texas for Louisiana on business; had gone from thence to Alabama, thence to.Georgia, and in 1870 had gone to Hew York the better to support and educate her children, with no intent to abandon the homestead. In replication it was alleged that Elonora had married James Mosely in 1866, and that Mosely died in 1870; that John Bell Gibson was a minor, and still was under age.
    Dunham, the administrator, was made a party, and denied all the charges of fraud.

      Heal, the defendant, by amendment, set out his title, being the proceedings in the administration resulting in the sale; the sale and deed by the administrator to Lewis; deed from Lewis to Morris; from Morris to Mrs. Ellen E. Gould, December 4, 1867, and from Gould and wife to defendant, March 24, 1875.
    January 19, 1879, the case was tried, and judgment rendered for defendant for two-thirds of the land and improvements, and for the minor one-third. The plaintiffs, Mattie Trammell and Elonora, merely prosecuted writ of error.
    The assignments of error are, so far as necessary to be noticed, the second, third, fourth, fifth and seventh, which question the action of the court in giving judgment under the plea of limitation for the defendant, and in admitting the administrator’s deed in evidence, and in giving it force and effect. The seventh and eighth errors assigned do not affect the rights of the plaintiffs in error, and the first assignment is not well taken.

      Drury Field, for plaintiffs in error.

      JR. M. Wynne and Morris c& Gould, for defendant in error.
   A. S. Walker, J.

The application of the settled principles applied to estates, inheritance, homesteads and limitation to the facts in evidence affords a ready solution of. the disputed points in this case.

We may treat the facts under two inquiries:

1st. Where, under the laws of descent, as modified by the homestead laws, is the title to this land? and

2d. What changes, if any, are made by limitation.

The testimony shows that early in 1850 John Gibson purchased the land of J. W. Flanagan, paying a part, and taking a title bond. (We think the' testimony sufficiently identifies this purchase. The bond was lost, and its contents supplied by parol testimony.) Gibson began making preparations to move upon the land, and, pending the preparations, died, and was buried on it. His wife Elizabeth at once moved upon the land; the remaining part of the purchase money was paid out of the assets of the estate of the husband. ' The family cqnsisted of Elizabeth, the widow, and their children, all minors, Hattie, Elonora and a son. The designation by the deceased, the prompt occupation of the land as a homestead, attached that character to the land, It descended, then, one-half to the widow, Elizabeth, and one-sixth to each of the children; not to be partitioned while used by the family as homestead.

In 1856 Mattie intermarried with Trammell, and moved to a new home. This act severed her connection as a part of the family of which her mother was the head. Whitehead v. Nickelson, 48 Tex., 530; Roco v. Green, 50 Tex., 483. The son also married, and with his wife moved to their home in Angelina county. There was then left the mother, Elizabeth Gibson, and her daughter Elonora, as the family.

Before 1862 Mrs. Mattie Trammell had become a widow, having two daughters by her marriage. In 1864, with her two children, she returned to her mother’s, and was staying there. The son was in the Confederate service, and in 1864 his wife and infant son, John Bell, were also staying with the mother. This return to the old homestead, so far as the testimony shows, did not restore them as parts of the family. Roco v. Green, 50 Tex., 483.

In October, 1864, the mother died owing some debts, and having no other property but the homestead, and, we may presume, exempt household property, etc.

Upon her death her interest in the homestead descended to the daughter Elonora, who had never married nor left her mother. Pas. Dig., 1305; Green v. Crow, 17 Tex., 188; Reeves v. Petty, 44 Tex., 249; Horn v. Arnold, 52 Tex., 161.

If the homestead was community property upon the death of the mother, Elonora would have two-thirds interest, and Mrs. Trammell and the son one-sixth each. The son was killed nine days after his mother’s death, and the plaintiff, John Bell, inherited his interest.

Inasmuch as the homestead character of the land, or that part of it which had been owned by Mrs. Elizabeth Gibson, passed by the laws of descent (Pas. Dig., 1305) to the unmarried daughter — being the child — part of the family,— it was not subject to administration.

The sale, therefore, by the administrator passed no title as against Elonora, who owned it; nor could the sale affect the interests of herself, her sister Mattie, or of her nephew, in the land inherited from John Gibson on his death in 1850.

A result equally unfavorable to defendant Neal would follow should it be held that the land had been acquired by Mrs. Elizabeth Gibson, and was her separate property. In such case the daughter Elonora would take the whole interest.

As to the effect of limitation, Lewis, the purchaser at the administration sale, sold to W. W. Morris; Morris in 1867 to Mrs. Ellen E. Gould; she and her husband, March 24, 1875, to defendant Meal. Morris at his sale handed the keys to the house to Gould. Gould made valuable improvements on the land, and held possession until his sale to Meal, paying all taxes demanded. The deeds were all recorded. There was nothing in the deed from Morris to Mrs. Gould to prevent it from being the basis of adverse possession under the five years’ statute of limitation.

The five years’ adverse' possession concluded Mrs. Mattie Trammell. It had no effect as to John Bell Gibson, who was a minor at the trial.

Elonora married in 1866, and left Texas for Louisiana. She became a widow in 1875. While Lewis, Morris and Gould had possession and were transferring the land, she was under coverture, and continued until her husband’s death, which is said to have been in 1870. The constitution of 1869, which was the law at her husband’s death, gave her seven years, after removal of coverture, to assert her right; until that length of time, title by adverse possession or limitation could .not be asserted against her. This suit was brought November 18, 1875, within the seven years, and while that was the period of limitation required to bar the right of a married woman. Art. 12, sec. 19, Const, of 1869; Riddle v. Bickerstaff, 50 Tex., 159; French v. Strumberg, 52 Tex., 92.

[Opinion delivered December 19, 1879.]

The title of plaintiffs, by inheritance, could not be placed on record. The laws of registration did not apply to their title. The chain of title exhibited by the defendant notified the parties through whom it passed sufficiently of the existence of the relation between John and Elizabeth Gibson, and that they had a family — descendants; at least sufficiently to put them upon notice. Besides, the facts could have been known, as while they were transpiring all the parties were residing in the immediate neighborhood.

The judgment below was not warranted by the testimony and should be reversed.

Reversed and remanded.