Delano v. Delano

HIGHTOWER, C. J. The following statement of the nature and result of this suit is found in appellant’s brief, and is not questioned by appellee, except as to tlie effect of the allegations contained In appellant’s supplemental petition: Mrs. E. J. Delano, who was the mother of appellant, J. R. Delano, and appellee, L. S. Delano, died intestate in Milam county in 1913, leaving surviving her, as her only heirs, said parties. Her estate, at the time of her death, consisted of 140 acres of land in Milam county, Tex. No administration was had and none was necessary. Appellanf brought this suit to partition, as 'between himself and appellee, said estate of their mother. Appellee answered and resisted such partition, upon the ground that prior to their mother’s death she had deeded to appellant the same quantity of land in settlement of his inheritance, and that in recognition of such fact appellant deeded to-appellee this particular 140" acres of land in controversy, and that, after he had fully executed such deed of conveyance, appellant unlawfully and without authority erased his signature therefrom. To this answer appellant replied by supplemental petition, in which he alleged that the land deeded to hi-m by his mother about two years prior to her death was for a valuable consideration, and partly in trust for one Annie Roberson, a stepchild of appellant, and not as an advancement, which he claimed was shown by the recitals in said deed. And, further, it was alleged by appellant in the supplemental petition that the deed which appellee claimed appellant had executed to him for the land in controversy was obtained by fraudulent representations and statements made to him by appellee and one Wells, which induced its execution, in that, as he alleges, appellee and Wells, at the time, stated and represented to appellant that such deed was for only 70 acres of the land in controversy, and that appellant, at the time of its execution, believed that the deed conveyed only 70 acres of such land; that he was afterwards. informed by the said Wells that he, said Wells, had changed said deed, after its execution by appellant, so as to make it convey 140 acres, the whole tract here in controversy, instead of only 70 acres; that thereupon appellant erased his name from said deed, and that, on account of such alleged change in said deed, there was an insufficient execution-of same, and that appellant was entitled to receive said deed back from the said Wells and to erase his name therefrom; and he *1146 further alleges that after he erased his name from said deed the said Wells, who had taken his acknowledgment thereto, also erased his certificate of acknowledgment. This is the second appeal in this case, and the report of the case on the first appeal will be found in 189 S. W. 972, where the history and facts in full relating to this controversy may he found, and we refer thei'eto for a more complete understanding of the nature of the controversy and the issues involved. Mrs. E. J. Delano, the mother of these parties, and a widow, on the 25th day of February, 1911, appears to have owned in her own separate right a tract of land containing 280 acres, a-'part of the 'Delgado survey in Milam county, and on that date she executed to appellant a deed to 140 acres of such tract, being the east half thereof, which deed, with the exception of the description of the land conveyed thereby, was as follows: “Know all men by these presents, that I. Mrs. E. J. Delano (widow), of the county of Milam, state of Texas, for and in consideration of tne sum of $4,320.00 cash to me on hand paid by J. R. Delano (my son),'the receipt of which is hereby acknowledged, and the further consideration that Annie Roberson, a child of the wife of said J. R. Delano by her former marriage, and who is a half-sister to the children of the grantee herein, shall receive an equal and exact share of the property hereby con-I veyed, the same as if she were the daughter ' of my said son, have granted, sold, and conveyed, and by these presents do grant, sell, and convey, unto the said J. R. Delano, of the county of Milam, state of Texas, all that certain lot, tract, or parcel of land, to wit: [Here follows description of the land.] To have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, unto said ,T. R. Delano; and I do hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto said J. R. Delano, his heirs and assigns, against every person whomsoever claiming or to claim the saíne or any part thereof.” This deed, was duly signed and acknowledged. It was the contention of the appellee, who was defendant below, that this deed from his mother to his brother, the appellant, was made as an advancement to appellant of the interest in said 280-acre tract that he would have inherited from his said mother, and being one-half of such tract, and that it was so understood and intended by both appellant and their said mother, and that it was in fact intended to be a partition of their said mother’s estate during her lifetime of said 280-acre tract of land, as between 'appellant and appellee, and that appellant in fact paid no consideration for the land conveyed by said deed, and was not entitled to partition or have any interest in the remaining half of said 280-acre tract, which was the west half, and which is now sought to be partitioned by appellant, and of which he claims to be an owner to the extent of a one-half undivided interest. The case was tried with a jury, to whom the case was submitted upon special issues, as follows: “This case is submitted to you on what is known as special issues. Certain questions will be propounded to you and appropriate instructions given, and you will answer said questions, and upon your answers the court will render judgment. “You are instructed that a gift of land, money, or other property by a parent to a child, with the intention that such money, land, or other property shall be all of or a portion of the child’s share in the parent’s estate at the parent’s death, is in law an advancement. “Governed by the foregoing instructions, you will answer the following: “Special Issue No. 1: Was the 140 acres of land described in the deed from Mrs. E. .7. Delano to J. R. Delano, dated February 25, 191T, conveyed to J. R. Delano as an advancement? Answer ‘Yes’ or ‘No.’ The burden of proof is upon the defendant to show by a preponderance of the evidence the affirmative of the foregoing issue. (To this question the jury answered ‘Yes.’) Special Issue No. 2: Did J. R. Delano consent for and authorize the deed from him to D. S. Delano, dated January 19, 1913, to be so changed and altered as to cause it to convey the 140 acres of land therein described? Answer ‘Yes’ or ‘No.’ The burden of proof is upon the plaintiff to show by a preponderance of the evidence the negative of the next preceding issue. (To this question the jury answered ‘Yes.’) “You are instructed that the deed from. Mrs. E. J. Delano to J. R. Delano, dated February 25, 1911, conveyed no interest in said land to Annie Roberson; and, in arriving at your answer to question No. 1 hereof, you will not consider the recitations in said deed with reference to the said Annie Roberson. “You are the exclusive judges of the facts proven, the credibility of the witnesses, and the-weight to be given Jheir testimony; but you will receive the law from the court as herein given and be governed thereby.” Upon the verdict of the jury as shown above, judgment was entered to the effect that appellant take nothing by his suit, and all costs were adjudged against him. Motion for new trial having been overruled, and the action of the court in that regard properly excepted to, the ease was brought here by appeal, and is properly here for revision. The first assignment of error found in appellant’s brief complains of the action of the trial court in refusing to peremptorily instruct a verdict in favor of appellant. The proposition under this assignment is as follows: “The recital of consideration in the deed from appellant’s' mother expressly shows that the consideration was that his stepchild should receive an equal and exact share of the property conveyed, the same as if she were a child of the appellant, and that such recital Was contractual in its nature, establishing by its terms the nature of appellant’s title under said deed; and, being contractual in nature, conclusively established the nature and character of the deed as one. of purchase as contradistinguished from a deed of gift by way of advancement; and such recital was therefore not subject to impeachment by parol, in the absence of pleading showing fraud, accident, or mistake.” *1147 And the second proposition was: “The recited consideration in tlip deed to appellant from Ms mother clearly established a trust estate in the land in favor of Annie Roberson to a portion of the land.” [1,2] The second, third, and fourth assignments of error complain of the action of the trial court in admitting evidence of certain witnesses in support of appellee’s contention that the deed to appellant from his mother, above mentioned, was intended as an advancement to appellant of his interest in her estate, as claimed by appellee, all of which evidence was objected to by appellant, and such assignments, therefore, practically -raise the same legal point as that raised by the first assignment, and what we shall say in this connection will dispose of •all of said assignments. That it is a well-established rule in this state that the true consideration for a deed may always be shown by parol is not questioned by appellant, but it is contended by him that the recitation as to the consideration contained in the deed from his mother to himself is of a contractual nature, and, that being so, it was not competent to permit evidence that tended to impeach, alter, qualify, or contradict such contractual recitation in said deed, but that, on the contrary, in the absence of an allegation of fraud or mistake, the deed spoke for itself, and its legal effect was to constitute appellant a purchaser of the land thereby conveyed for a valuable consideration, charged only with a trust for a portion thereof in favor of Annie Roberson; and that the court should, therefore, have■ instructed a verdict for appellant, and was in error in permitting appellee to offer any parol evidence whatever showing, or tending to show, that said deed was intended to convey the land therein mentioned to appellant as an advancement of his interest in his mother’s estate, as claimed by appellee. This precise question was decided adversely to appellant’s contention on the former appeal in this case. Delano v. Delano, 189 S. W. 972. Appellant insists, however, that the Court of Civil Appeals, deciding this question on the former appeal, was clearly in error, and we are earnestly urged to disagree with that holding, and sustain appellant’s contention, notwithstanding the same. We have very carefully considered the question raised by these assignments, and have reached the conclusion that the Court of Civil Appeals for the Third District was correct in holding that the recitation as to consideration contained in the deed in question was not one of a contractual nature, and that it was permissible to prove by parol the real intention and purpose of the parties to said deed. Of course, this court recognizes and admits the exception to the general rule, which permits parties to show the real consideration for a deed, regardless of what the consideration may be expressed to be on the face of the deed, which exception is that, where the recitation in the deed with reference to the consideration is of a contractual nature, it cannot be disputed, altered, contradicted, or modified by oral evidence, but what we hold is that the recitation in this deed as to consideration is not of a contractual nature. As said by the court .on the former appeal: “It will be observed that the recital does not bind the grantee to do or not to do anything. It merely recites that Annie Roberson shall receive such an interest in the land as the children of J. It. Delano should receive. And it further appears from such conveyance that his own children did not re ciive anything, but that he himself took the fee-simple title to the land in question, without remainder to any one. Hence Annie Roberson could take nothing under this stipulation, and such recital had no binding legal effect. The court was therefore in error in finding, as a conclusion of law, that such recital was contractual.” Appellant cites, as the main, authorities in support of bis contention on these points, Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825; Ry. Co. v. Garrett, 52 Tex. 133; and Ry. Co. v. Pfeuffer, 56 Tex. 66. The deed under consideration in the Kahn Case was one from a husband to his wife. It was recited in the deed that the consideration paid therefor was out of the separate means of the wife, and it was further recited in the deed that the conveyance was made to the wife for her sole and separate use and benefit.. ' Afterwards Kahn and his wife were divorced, and subsequent to the divorce Mrs. Kahn brought suit against her former husband to recover from him the land described •in this deed to her, claiming the same as her separate property, and that Kahn had no interest of any character in the land. Kahn answered, and, among other things, alleged that while it was true that the deed from him to the plaintiff recited that it was made for her sole and separate use and benefit, and also 'that the land mentioned therein was paid for out of her separate money, yet such recitations were made by the draftsman, without the knowledge or consent of either himself or Mrs. Kahn, and that such recitations were .not true in fact, and that he did not, at the time of the execution of such deed, intend to convey the property to his wife for her own sole and separate use and benefit, or to make it her separate property, and that the property was in fact community 'property between himself and the plaintiff, and, over the objection of the plaintiff, Mr. Kahn was permitted to testify in support of his allegations on that point. The trial resulted in a judgment to the effect that the property was community property, and the plaintiff, Mrs. Kahn, was only permitted to recover a one-half interest in the same. That judgment was affirmed by the Court of Civil | Appeals, but writ of error was granted by *1148 the Supreme Court, and the judgments of the lower court and Court of Civil Appeals were both reversed. The opinion of the Supreme Court in the case was written by Associate Justice Williams, and is a very interesting and clear discussion of the rules of construction to be applied where a deed from a husband tó a wife during the marital relation is under consideration; but none of the rules there discussed have application here, and we pretermit any further reference to them. .It was unequivocally held by the Supreme Court in that case that: “Where a deed from a husband to a wife clearly expressed an intention to make the property conveyed her separate estate, by reciting payment of consideration from her separate funds, parol evidence is not admissible, without proof of fraud or mistake in the insertion of such recitals, to show that the grantor did not intend to convey to her as her separate property.” It was further held in the case: “The statement in a deed from husband to wife of a consideration received from the wife’s separate property is a contractual recital showing the character of the right created, and cannot be varied by parol evidence of a different consideration which would make the deed inoperative.” Among other things the court said: “There can therefore be no doubt that the deed before us upon its face unequivocally expresses the purpose of Kahn to convey to his wife in her separate right, and he cannot be permitted, consistently with correct principles, to show that he did not so intend. The evidence admitted 'does not come within the rule which permits the true consideration of an .instrument to be shown to have been different from that recited. This principle, properly applied, admits the evidence where the consideration has been stated as a fact, but not where the recital is contractual in its nature.”^ Eurtlrer: . “The statement in. the deed from Kahn to his wife is more than the mere statement of a fact. Under the decisions referred to, its legal form is to show the character of the right to be created by his deed, and is as much a contractual recital as any in the instrument, and belongs to that class of particular and. contractual recitals which, in deeds, estop the parties from denying them. Another limitation upon the rule is that a grantee ¡.grantor?] in a deed will not be permitted to defeat it as a conveyance by showing that there was no consideration, and the effort here is to defeat the deed as a conveyance of the property to Mrs. Kahn in-her separate right, which would be to make it wholly inoperative, since the legal title was already in the community estate. Evidence that no consideration passed would doubtless be permissible where such fact would be of any importance upon the issues of a case, but it could not have the effect of defeating the. operation of the deed.” [3] We think,, clearly, that this case cannot be invoked in support of appellant’s contention here, because, in our opinion, the purpose of offering the parol testimony in the Kahn Case was entirely different ■ from the purpose in offering such testimony in this case, in that in the Kahn Case the purpose of offering the parol testimony was to destroy the deed as a conveyance at all, and to destroy all rights recited thereby to be in the grantee, while in the instant case the purpose of the parol testimony was not to destroy or in any manner affect the deed from appellant’s mother to him as a conveyance of the land thereby conveyed, or to limit or affect his interest therein to any extent whatever; on the contrary, its purpose and effect was to confirm the deed and the estate thereby conveyed in appellant. Such testimony was only offered to show that appellant’s mother, in making the deed to him, intended that he should have the land thereby conveyed as his interest in her estate, which, under the law of descent and distribution, he would have received after her death without such deed, and that it was further her intention to partition her estate during life between her only children. Appellant is mistaken in his contention that the recitations in this deed, in so far as they relate to his stepchild, Annie Roberson, create a trust of any character in her behalf touching the land thereby conveyed, but, on the contrary, this deed passed the title to the land thereby conveyed to appellant in fee simple, and neither in Annie Roberson nor in any of his own children was any estate created by said deed. In the Garrett Case, Garrett brought suit against the railroad company, alleging that the company had forcibly and without his consent entered upon and appropriated a portion of his land, and constructed its roadbed thereover for a named distance, and had appropriated approximately 12 acres thereof, of the value of $20 per acre, and claiming damages for timber cut and other trespasses. The railroad company answered, denying the allegations in Garrett’s petition attributing any wrong to it, admitting that its road had been constructed over his land, but alleging that the right of .way over same had been acquired by it through deed duly executed by Garrett, and that such deed was executed without any reservation and for the consideration only as expressed in the deed. Garrett filed a supplemental petition, in which he alleged, ámong other things, thatt if he executed the deed to the railroad company as claimed by it, the same was procured by false and fraudulent representations on the part of the company and its agents, in that the railroad company verbally agreed and promised Garrett that, if he would make the deed to it, the company would pilace a depot on the land near his residence and establish a shipping point there; that solely on the faith of this promise and agreement, and for this consideration only, he executed the deed referred to; that the company failed to so locate the depot, but placed it at another place beyond his land; and there were other allegations setting up a breach of verbal promises on the part of the railroad company. Eor these reasons Garrett" alleged that the consideration for *1149 the deed had failed, prayed its cancellation, and judgment for his damages. Among other things the Supreme Court of this state, speaking through Associate Justice Bonner, said: “Plaintiff further claims to recover by reason of false and fraudulent representations of defendant and its agents that they would locate a depot upon his land, by which he was induced to execute the deed. * * * As the case will be remanded, we deem it. however, proper to sav that the deed expressly recites as.the consideration the sum of $1.00 in hand paid by the defendant, and the ‘further consideration that the said company will locate its railroad over my land situated in Marion county.’ As- this deed was executed by the plaintiff and accepted by the defendant, this recital is more than a bare receipt of the payment of the purchase money; it is also the written evidence of a contract between the parties” to the effect “that the plaintiff would grant the right of way, and that the defendant would construct its road over the same. To permit a parol contemporaneous condition to be ingrafted upon a deed in writing, it should be upon proper allegation of fraud, accident, or mistake, and upon clear and satisfactory evidence.” Thus, it will be seen in the Garrett Case that it was clearly and. expressly recited in the deed there under consideration that the grantee, the railroad company, as consideration for the same, would construct its railroad over the land of the grantor; in other words, the railroad company, the grantee, bound itself to do something, namely, construct its railroad over grantee’s land, and this recitation as to such consideration was clear and unambiguous, and showed all the consideration for the deed, and purported to show all the consideration that moved the grantor to execute the deed; and the court in that case was correct, in our opinion, in holding that it was not permissible for grantor, Garrett, to show, in the face of these positive expressions as to consideration, that the railroad company also promised to construct a depot on Garrett’s land and failed to do so. We do not consider that the case is authority in support of appellant’s contention here. In the Pfeuffer Case, recitations in the deed there under construction as to the consideration for same were almost identical with the deed in the Garrett Case, and the court reached the same conclusion, holding, in effect, that parol testimony was not admissible to contradict or vary the recitation in the deed as to the consideration therefor, because such recitation was contractual, and that the rule .which prevents any written contract between parties from being contradicted or varied by parol testimony must control. We do not consider that either of the above-mentioned cases relied upon by appellant supports his contention to the effect that the recitations in the deed from his mother to himself, as to consideration, were of a contractual nature; and believing that the trial court was not in error in refusing to give the peremptory instruction requested, or in permitting parol testimony, as complained of, we overrule appellant’s first, second, third, and fourth assignments of error. [4] By the fifth assignment of error appellant complains that the trial court erred in giving this portion of its charge to the jury, to wit: “You are instructed that the deed from Mrs. E. J. Delano to J. R. Delano, dated February 25, 1911, conveyed no interest in said land to Annie Roberson; and in arriving at your answer to question No. 1 hereof, you will not consider the recitation in said deed with reference to the said Annie Roberson.” The record shows that appellant objected to this portion of the court’s charge in proper time and manner, and that the objection was overruled by the court, and appellant excepted. The only proposition that we find under this assignment is as follows: “In the absence of fraud, accident, or mistake, the language of the deed is presumed to express the intention of the maker, and a charge eliminating from the consideration of a jury certain recitals in the deed as evidence, and submitting the remainder of the deed as evidence, is a charge upon the weight of the evidence.” As stated above, the deed to appellant from his mother passed no interest whatever to Annie Roberson in the land thereby conveyed, but, as we have said, a title in fee simple passed to appellant by the deed, and we do not believe that the charge complained of was intended to tell the jury anything more than that Annie Roberson acquired no interest in the land conveyed by the deed to ap pellant, and we are of opinion that a jury of ordinary intelligence, which the trial jury in this case are presumed to have possessed, would have so construed the charge; and, while the charge may not have been necessary, at the same time we do not believe from the record in this case that it was an error calculated to prejudice the rights of appellant in any way, and we therefore overrule the fifth, assignment.. [5] By the seventh assignment of error, appellant complains of the action of the court in submitting special issue No. 1 to the jury, as hereinbefore copied, the objection being that the submission of that issue as framed by the court was nothing more than a question of law for the determination of the jury, and was not an issue of fact. We refer to the issue as hereinbefore copied, and also to the definition given the jury by the court as to what would constitute an advancement. We think that there is nothing in this assignment, and the same is overruled. All the other assignments of error found in appellant’s brief relate to the action of the court in refusing to submit to the jury certain special issues and charges requested by appellant, of which there were 11 in all, exclusive of the peremptory instruction requested by appellant. *1150 [6] We decline to consider all of these assignments of error relating to the action of the trial court in refusing these special charges and issues for the reason that it is not shown by the record in this case that .such special charges and issues, the refusal to give which is complained of, were submitted to the attorneys for appellee for examination and objection,'as was required by the statute in force when this case was tried below. The statute referred to is chapter 59 of the Acts of the 33d Legislature, p. 113. Section 3 of the act declares that either party to a suit may present to the judge presiding, in writing, such instructions as he desires to be given to the jury, which the judge shall give or refuse, as he may see proper, provided such instructions, however, shall be prepared and presented to the court and submitted to opposing counsel for examination and objection (italics ours) within a reasonable time after the main charge is given to the parties or their attorneys for examination. This statute further declares that the ruling of the court in giving, refusing, or qualifying instructions to the jury shall be regarded as api>roved, unless excepted to as therein provided. Vernon’s Sayles’ Civil Statutes 3914, arts. 1973-2061. The appellate courts in this state have repeatedly held that the refusal of a special charge will not be reviewed on appeal where the record fails to show that it was presented to opposing counsel for examination and objection, as required by the statutory law of this state. It is true that the 34th Legisla-ure, by chapter 177 of the Acts of 1917, p. 3S9 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1974), dispensed with the necessity of taking formal bills of exception to the refusal of a trial judge to give special charges. This case, however, was tried and judgment rendered before the act of 193.7 became effective, and the amendment can have no effect relative to the proceedings required by statute at the time this case was 'tried. Shipley v. Ry. Co., 199 S. W. 663; Farthing Lbr. Co. v. Illig, 179 S. W. 1092; Ry. Co. v. Hargrave, 177 S. W. 509; Terrell v. Ry. Co., 189 S. W. 575. The statute requiring that special charges be submitted to opposing counsel for their consideration serves, we think, a useful purpose, in that opposing counsel, upon seeing a special charge properly prepared and called for by the pleadings and the evidence in the ease, and made necessary, perhaps, on account of omissions in the court’s main charge, would very probably not object to the trial court’s giving such special charge, but would acquiesce in the same, and in all probability errors which might otherwise be committed by the trial judge would be prevented, and this was the purpose of the Legislature in enacting the statute. This court has been very liberal, perhaps as much so as any appellate court in the state, in matters of this kind, and has repeatedly declined to enforce many of the rules governing the briefing of cases in this court which are made merely for the convenience of this court, and we shall continue to be liberal in that regard; but the point here is a different matter, and we feel justified in following the rule adopted by the other courts of civil appeals in this state, as shown by the authorities cited, and therefore decline to consider the assignments mentioned. Some of them, too, have reference to the second issue involved in the case, as above mentioned, and could not avail appellant anything, even if we should consider them, because they would be immaterial, in view of the jury’s verdict on the first issue. Finding no reversible error in the judgment of the trial court in this case, the same will be affirmed, and it is so ordered. Affirmed. Footnotes [1] <s=^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes