Page images
PDF
EPUB

practicable, the judge having filed no conclusions. We conclude as follows:

1. The testimony and circumstances admit of the finding that the deed from appellant and his stepbrother was a sale of appellant's interest in the land, was for valuable consideration, and was not a conveyance in trust.

2. The land belonged to Dr. William Nix Anderson, the father of appellant and J. S. Anderson, who died in 1855. When he died he left children by his first wife, also by his second wife; appellant, being the youngest, was born shortly after his death in 1855. Dr. Anderson had his homestead upon the land, and this 200 acres, with the improvements, were in the proceedings of his estate set apart to his widow as homestead. Appellant was entitled to an interest in the whole property, subject to his mother's possessory right to said homestead tract and her interest in the remainder of the land, which was a possessory right during her life in an undivided one-third thereof on the basis of it having been Dr. Anderson's separate estate. Appellant lived with his mother on the homestead tract until he was grown, and after his marriage in 1874, 1875, or 1876, he continued to so live there for some time, when he moved from the old house to a new house on the same homestead tract, a few hundred yards distant, which he claims he built. Soon after this his mother moved over to this house and lived with him and his family. Appellant managed the place for his mother and attended to her affairs. They thus lived on the place until 1890, when his wife died, and in that year he moved from there to the village of Richland, several miles distant, where he has resided ever since. In 1892 he married again, and acquired property in Richland in which he has resided as his home with his family ever since. There seems never to have been any actual residence, or homestead in fact, by appellant on the land outside of the 200-acre tract. There never has been any attempt at a partition of any of the land, and it appears that by common consent of all interested the widow has been permitted to possess and enjoy the entire property as her own. To show the attitude of appellant to this property during all this time, we refer to some of his own testimony: “The farm and cultivated land is on the Kincannon survey. [If this is so, all of it was on the 200 acre homestead tract.] I worked the land while I was there. I was not charged any rent. I left Navarro County in 1882.

Mother and I occupied the land after I returned in 1888. Never heard of any adverse claim to any interest, only I knew what I had done. I have had as much as one-seventh of the rents of the place. When I did not rent the land I cultivated as much as one-seventh, I think. I moved to Richland in 1890. Mother claimed the whole place and possession of it. I have always managed the place for mother and she relies on me to do it. The place was rendered for taxes in her name, and I paid the taxes for her. After the new house was built, the old house was used for servants. I have lived in Richland with my family since 1890, and

have continued to look out after the renting of the place for her. Since 1890 the whole place has been under fence. I would turn a part of the money that was made over to mother. I did not charge her for looking after the business. She got everything that was right. I bought property at Richland. I lived there about four years before I bought, before that I rented property. I only used the property at Richland as a home. I have used the property at Richland as a home. I have used my place at Richland as a home and am now using it as such."

Conclusions of Law.-1. In 1882, when the deed in question was made, appellant and his family was living on the homestead tract with his mother. The latter had the possessory right to this tract during her life, and has since the death of her husband exercised and is still exercising that right. Appellant had no other property than the interest he inherited in these lands. His presence with his family, living on the 200 acres, was permissive. As to the undivided interest he had in, and the present right of possession of the land outside, the 200 acres, he seems never to have occupied this outlying land and it was never by any possible contention his homestead in fact. It is contended by appellee that the condition of the title and the right of possession was such that he could not have had homestead in any of the land which the mother had a life estate in. In view of some decisions, it may be an interesting question whether or not the law under certain circumstances similar to those here would recognize a homestead right in a remainderman during the life estate. Gardner v. Douglas, 64 Texas, 76. While we doubt that the homestead right would be extended that far, it is not necessary to pass on the question in this case.

2. Assuming that he had an existing homestead right at that time in any

of the land, his deed, although not executed by his wife, operates as a conveyance, by reason of the fact that he afterwards left the place and acquired another homestead. Marler v. Handy, 88 Texas, 428; Stallings v. Hallum, 89 Texas, 431; Mortgage Co. v. Fleetford, 66 S. W. Rep., 103, and cases discussed.

3. As to limitations : Under the testimony the court may properly have concluded that the possession of appellant was not held by virtue of any claim of title in himself, but was in fact possession for and on behalf of his mother. It warranted finding that the possession has in fact always been the mother's, and that appellant's presence on the premises was in subordination to her claim not only in the homestead tract, but in the balance of the land as well. The evidence presents a much better case of title by limitations on behalf of the mother so far as the fact of possession is concerned than exists in behalf of appellant, and it would hardly be contended under the facts and circumstances in this record that she could claim title by limitations. Besides, appellant admits that some time in 1890 he moved away from the land. There could not have been ten years possession by him between 1882 and 1890. Since the latter date he has never lived upon the land or

occupied it, and his connection with it has been the management of the place for his mother. We conclude upon this issue that the judgment should be sustained.

We regard the fifth and sixth assignments as without force.
The judgment is affirmed.

Affirmed.

P. C. WHITMIRE V. SALLIE MAY ET AL.

Decided May 31, 1902.

Deed of Trust-Power of Sale-Revocation by Death-Equity of Redemption.

Where P. executed a deed of trust on land to secure his vendor's lien notes therefor, and then conveyed an undivided interest in the land to his wife by deed duly recorded, she was thereby invested with the equity of redemption, and her death revoked the power of sale as to her interest, which could be sold only under proceedings in the probate court. Following Buchanan v. Monroe, 22 Texas, 537.

Appeal from Dallas. Tried below before Hon. Richard Morgan.

M. T. Connor, for appellant.

Harry P. Lawther, for appellees.

FLY, ASSOCIATE JUSTICE.—Appellant instituted this suit against Sallie May, alias Sallie Johnson, to recover fifteen acres of land near the city of Dallas, out of the William Combs survey. Sallie May pleaded “not guilty," and that she was a tenant of R. H. Powell, administrator of the estate of Jennie B. Pippin, deceased, and held possession under his title. He answered, claiming one-half of the land for the estate he was administering. The cause was tried by the court, and resulted in a judgment for appellant for one half the land, and for the estate of Jennie E. Pippin for the other half.

There is no statement of facts, and the findings of fact by the court are as follows:

“The property in controversy in this suit, consisting of real estate in Dallas County, Texas, and which is more particularly described in plaintiff's petition, was on February 1, 1897, the property of F. H. Doran, who by deed of that date conveyed it to J. D. Pippin.

"The aforesaid deed from Doran to Pippin recites a consideration of $1125, of which $625 was paid in cash out of the separate funds of said J. D. Pippin, and the remaining $500 was secured to be paid by five promissory notes, of $100 each, and each maturing at a different date. A vendor's lien is retained in said deed to secure said notes, and said deed further recites the making of a deed of trust by said J. D. Pippin to W. H. Lewis upon said property as further security for the payment of said notes.

“The said deed of trust was made as recited in said deed, and on Tuesday, the 4th day of December, 1900, said W. H. Lewis, as trustee under said deed of trust, and acting in pursuance of the authority which by the terms of said deed of trust was vested in him, sold said property to Mrs. E. E. Waller, and on December 11, 1900, executed a deed to her for said property, in which said deed it was recited, among other things, that said sale was made to pay and satisfy the three of said five promissory notes which matured last. Said three notes had been transferred to said E. E. Waller by said F. H. Doran.

"On January 7, 1901, the said E. E. Waller, by deed of that date, conveyed said property to the plaintiff, P. C. Whitmire.

"On February 1, 1897, and prior thereto, said J. D. Pippin was a married man; his wife's name being Jennie E. Pippin. They were married about three weeks prior to February 1, 1897. At the time of their marriage she was a widow, with two children by her former marriage, to wit, Claud Powell and Clark Powell.

"On February 13, 1897, the said J. D. Pippin made, executed, and delivered to his said wife, Jennie E. Pippin, a general warranty deed, whereby he conveyed to his said wife an undivided one-half of said property. Said deed was filed for record and duly recorded in the records of deeds of Dallas County, Texas, on February 13, 1897. Said deed recites the consideration to be three hundred and twelve dollars and fifty cents ($312.50) cash paid by the said Jennie E. Pippin, and the assumption of her one-half of the five promissory notes mentioned in the aforesaid deed from F. H. Doran to J. D. Pippin, and retains a vendor's lien to secure the same. As a matter of fact, Mrs. Pippin had no money, and did not pay anything to or for her husband as a consideration for said deed.

“The said Jennie E. Pippin is dead. She died February 5, 1900, and prior to the sale by W. H. Lewis, as trustee, mentioned in paragraph 3 of said findings of fact. She left surviving her her two children, the said Claud Powell and Clark Powell. Whether the said J. D. Pippin is living or dead is not shown by the testimony. He left Dallas County soon after making said deed to his wife, and his whereabouts are not known. The said two children of Mrs. Pippin are still living.

“Administration upon the estate of said Jennie E. Pippin was begun in the county court of Dallas County, Texas, on April 30, 1900, and is still pending. The defendant R. H. Powell is her administrator, duly appointed and qualified.

"At the time of the death of said Jennie E. Pippin the aforesaid property was the homestead of said Jennie E. Pippin, and was occupied by her and her children as their homestead; and, if J. D. Pippin was then living, it was his homestead, also.

“This suit was begun January 25, 1901, and the defendant Sallie May was at that date in possession of the aforesaid premises as the tenant of the said R. H. Powell, administrator of Jennie E. Pippin, deceased.

“When the said W. H. Lewis, as trustee, made the sale mentioned in paragraph 3 of these findings of fact, and long prior thereto, he and those for whom he was acting, and the purchaser at said sale, and her vendee, the plaintiff in this suit, knew that said Jennie E. Pippin was dead, and that administration upon her estate was pending, as above stated.”

The trial court held that the sale under the trust deed was void as to the half of the land that had been conveyed to Mrs. Pippin, because Mrs. Pippin was dead when the sale took place. That ruling of the trial judge presents the only material question in the case. The matter has been decided, under facts strikingly similar, by the Supreme Court, in the case of Buchanan v. Monroe, 22 Texas, 537, and the soundness of the decision has never been questioned in Texas. In that case W. M. Phillips and wife had given a mortgage on certain land to secure the payment of a promissory note for $750, containing a power of sale in default of payment of the note. Afterwards Phillips and wife sold the mortgaged premises to William H. and Sarah Wyatt, with an express recognition in the conveyance of the existence of the mortgage. After the deed was executed, and before the maturity or payment of the note, William H. Wyatt died, leaving his family in possession of the property, and Buchanan administered on his estate. The note not being paid at maturity, Everett Lewis, the trustee, sold the land under the authority contained in the mortgage, and Monroe & Bro. bought it, and received a deed to it from the trustee. The trial court rendered judgment in favor of the plaintiffs, Monroe & Bro., and the cause was appealed by the administrator. The Supreme Court held:

The Supreme Court held: “The conveyance by the mortgagors, Phillips and wife, transferred the equity of redemption to Wyatt and wife. It passed the entire estate and interest in the property, subject to the lien of the mortgage. The whole estate was conveyed subject to the lien, and became the estate of Wyatt and wife, and so remained at the death of Wyatt, if that was before the sale under the power in the mortgage. In a suit to foreclose the mortgage, they would have been necessary parties in order to bar their equity of redemption. 4 Kent Comm., 185; Story Eq. Pl., secs. 193, 195, 197; Hall v. Hall, 11 Texas, 527. But Phillips and wife would not have been necessary parties, because they had parted with their entire estate, and had no interest to be affected by the decree. Their equity of redemption was transferred and passed by the conveyance to Wyatt and wife, who were thereby subrogated to their estate, and all their rights in relation thereto. Their estate and rights after the conveyance were in all respects the same as those of Phillips and wife before. Hence, according to the doctrine in Robertson's Administratrix v. Paul, 16 Texas, 472, and numerous cases since decided, the death of Wyatt operated a virtual revocation of the power to sell contained in the mortgage, and imposed on the mortgagee the necessity of having recourse to the probate court for the enforcement of his lien upon the property, upon the principle that the statute relating to the estates of deceased persons requires all liens

« PreviousContinue »