The undisputed evidence shows that on and for some time prior to the 23d day of December, 1897, up to the 19th day of July, 1904, at which time Florence McCombs died, Paul McCombs and Florence McCombs were husband and wife; that Florence McCombs left surviving her her husband, Paul McCombs, and three children, namely, Mora, who became the wife of Ben P. Atkinson, Helen, who became the wife of Charles Overton, and Melvorne, a son; that on the 23d day of December, 1897, the Land Mortgage Bank of Texas, through its agent of Tarrant county, Tex., by its contract with Paul McCombs, authorized McCombs to sell certain lands owned by it, estimated to be 1,700 acres, situated in Brazoria county, Tex., a part of the George Tennille league, at $6 per acre, McCombs to receive for his services any sum he might receive therefor over said $6 per acre. By the terms of such contract McCombs was to survey and subdivide the land into 40-acre tracts.
McCombs divided the land as he agreed to do, and inclosed the entire tract with a fence, which was paid for by the bank.
The contract mentioned was to expire at the end of one year. No sale was made under it. In 1901 McCombs had some arrangement with W. T. Humble, agent of the bank, to either sell the land or to buy it himself, and on the 2d day of January, 1900, Humble wrote McCombs that the bank would sell him the land, less two 50-acre tracts, which he described, for $6,000, to be paid $1,000 cash, $1,000 in three years, $1,000 in four years, and $3,000 in five years, all notes to bear 7 per cent. interest, provided the offer was accepted by February 2, 1900. McCombs did not purchase the land under the terms proposed by Humble. In February, 1900, McCombs saw Humble and Humble told him that, in order for him (McCombs) to be repaid for the work he had already done, for which he had received no remuneration, he (Humble) would place the legal title to the land in McCombs by deed, for a recited consideration of $1,000 as cash paid, which was not in fact paid, and the further consideration of $6,800 to be paid; so that under such arrangement McCombs might sell it to some one. Under such arrangement, on the 16th day of February, 1901, the Land Mortgage Bank, for a recited consideration of $7,800, $1,000 cash, and seven notes of McCombs, the first for $800 and the other six for $1,000 each, payable to the bank, respectively, on or before March 1, 1902, 1903, 1904, 1905, 1906, 1907, and 1908, the land involved was conveyed.
Thereafter McCombs tried to sell the land, but for a long time was unsuccessful and finally went to W. H. Abrams, for whom he worked, and told him of his option. He told him that the land at the price given him was a big bargain; that he thought the land was worth $10 per acre, and that he wanted Abrams to get the benefit of the bargain, and that if he would take the land at $6,800, as proposed, he (McCombs) would not ask Abrams to pay any part of the $1,000 recited in the option deed as a cash payment, as that was recited so that, in case McCombs might sell for $7,800, he would get something out of it for himself. Abrams told McCombs that he would not buy the land unless McCombs would join him in the purchase. McCombs told Abrams that he could not join him in the purchase, and Abrams, told him that he (Abrams) would advance his half of the purchase price, and that McCombs could pay it back when he could. McCombs agreed to join in the purchase if Abrams would let him pay his part of the purchase money out of his salary. Abrams agreed to McCombs' proposition and had McCombs write him a letter embodying the terms of the agreement between them. At the time such agreement was had, the deed from the bank to McCombs had not been delivered, but was held by Humble for the bank. The letter written by McCombs to Abrams was as follows:
"Dallas, Texas, 25 March, 1901.
"Mr. W. H. Abrams, Dallas, Texas.
"Dear Sir: I have purchased from the Land Mortgage Bank of Texas, W. T. Humble, Atty in Fact and General Agent, 1600 acres of land in Brazoria County, Texas, 4 miles west of Columbia; as fine farming land as any in South Texas, every acre arable land; raises fine sugar cane, or rice. All under fence, when I last saw it, for I built the fences myself. The price I paid was $4.00 per acre and the surrounding lands cannot be purchased for less than $10. to $15. per acre.
"The terms are $800.00 the first of March, 1902, and $1,000.00 per year for each succeeding year for 6 years; with 7% interest.
"If you will pay the $800 I will have the deed made to you and me, jointly, or will convey you an undivided one half interest myself; and I will pay out my share of the balance of the purchase money.
"I shall be willing to return you one-half of the above $800 out of my salary at the rate of $100 per month.
"If this will meet your ideas, I would like to go to Fort Worth and close the matter at once; as my contract will expire in a very few days.
"Yours, Paul McCombs."
Abrams accepted McCombs' proposition and paid, by his check, the $800 note recited as a part consideration in the deed from the bank to McCombs, and the deed was delivered to McCombs by the bank. *Page 586
By his deed bearing date as of February 16, 1901, McCombs conveyed a one-half of the land to Abrams. The deed recited the consideration as $400 cash and other valuable considerations, and also recited that such conveyance was subject to debts for the purchase money and all the conditions in the deed from the bank to McCombs.
The deed last mentioned was acknowledged before J. D. Crutcher, notary public.
In connection with the execution of the last-mentioned deed, McCombs prepared, signed, and delivered to Abrams the following instrument:
"16 February, 1901.
"State of Texas, Dallas County.
"Whereas, I have this day sold to W. H. Abrams an undivided one-half interest in and to certain lands aggregating about 1700 acres in Brazoria County, Texas, upon which there is yet due about $6000.
"Now, as part of said sale, I hereby agree that in case I should be unable or unwilling to pay my part of the purchase money still due on said lands, then said Abrams shall have the right to pay said purchase money in full and receive title to the entire tract of land, allowing me to retain so much of same as I may have paid proportional to the whole amount of the purchase money.
"Paul McCombs."
After Abrams had paid the $800-note executed by McCombs as the first payment on the land, which is recited in the deed from the bank to McCombs, McCombs repaid to Abrams one-half, or $400, of such sum, and this sum was all that was ever paid by McCombs of the purchase money for the land.
During the years 1905 and 1906 McCombs was practically a bankrupt, and his only income was his salary of $150 per month, and he had given up all hope of being able to make any further payments on the land notes, and he so told Abrams, and in a written statement of date March 1, 1906, the following appears:
"As McCombs has failed and is unable to pay any further part of his half of the purchase price of the land above described, except the first $400.00, he has on this, the 1st day of March, 1906, executed to W. H. Abrams a conveyance of all his interest in said land; and said Abrams has conveyed to said McCombs 100 acres of land, in full for the $400.00 he paid."
Complying with the conditions stated in the above instrument, McCombs by his deed of date March 1, 1906, conveyed the land in controversy to W. H. Abrams, and Abrams then reconveyed to McCombs 100 acres thereof.
One hundred acres of the original 1,700 acres had been lost to Tenille in a suit for which the bank credited the land notes with $400, and Abrams paid all the balance of the purchase money notes, except the $400 paid by McCombs.
Mrs. Florence McCombs, wife of Paul McCombs, as already stated, died on the 19th day of July, 1904. She left a will by which she devised to her three children, hereinbefore named, all of the estate of which she possessed at the time of her death. This will was probated under the supervision of J. D. Crutcher, attorney, on the 2d day of September, 1905, but no administrator or executor was appointed.
On the 16th day of January, 1906, Paul McCombs filed his application to be appointed administrator of the estate of Florence McCombs, with will annexed. Paul McCombs was duly appointed as such administrator on the 16th day of June, 1906, and he duly qualified as such, and J. D. Crutcher and two others were appointed appraisers.
Among the property pointed out by Paul McCombs to the court and the appraisers as the community estate of himself and his deceased wife, Florence, is the following:
100 acres of the George Tenille survey in Brazoria County, valued at,......................... $400.00 42 acres in Aransas County ........................... 200.00 And about ten acres in city lots in the City of Rockport, Aransas County, valued at .......................................... 100.00
The inventory and appraisement as made by McCombs was approved by the appraisers as correct, and was also approved by the probate court.
On the 12th day of November, 1907, Mrs. Mora Atkinson, joined by her husband, Ben Atkinson, and Melvorne McCombs, in an instrument executed and delivered by them to Paul McCombs, recites:
"In consideration of the full and final settlement this day made between the grantors and the grantee, Paul McCombs, of all matters relating to the separate estate of Mrs. Florence J. McCombs, deceased, and to the community estate of Paul McCombs and Florence J. McCombs, do hereby transfer and convey and quit claim unto the said Paul McCombs, all our right, title claim, and interest in or to all property, real or personal, wherever situated, belonging to the community estate of Paul McCombs and Florence J. McCombs, or to the separate estate of Florence J. McCombs.
"To have and to hold the same unto the said Paul McCombs, his heirs and assigns, forever."
This instrument was acknowledged by Melvorne McCombs before J. D. Crutcher, notary public, who was one of the appraisers of the property of the estate of Florence McCombs and who with others inventoried the 100 acres in Brazoria county conveyed by Abrams to McCombs, as belonging to the community *Page 587 estate or Paul McCombs and his deceased wife, Florence.
W. H. Abrams having become the owner of the land in controversy through the two deeds of Paul McCombs, the last one of date March 1, 1906, leased such land to the Producers' Oil Company on the 23d day of December, 1914, for the purpose of prospecting for oil, gas, and sulphur. Under such lease, lessee was given "ingress and egress upon the land at any and all times to prospect, drill, mine and otherwise operate under the lease, to erect, maintain, and remove all necessary or proper structures." Such lease conveys all the oils and other minerals on or under the land, subject only to certain royalties thereby expressly reserved. Such lease was transferred by the Producers' Oil Company to the Texas Company, and such company extracted large quantities of oil from the land.
On the 28th day of December, 1920, Melvorne McCombs, Mora Atkinson, joined by her husband, Ben Atkinson, and Helen Overton and husband, Charles Overton — Melvorne, Mora, and Helen being the sole heirs of Mrs. McCombs, deceased, and the devisees under her will — brought this suit in the district court of Brazoria county, Tex., in trespass to try title, praying for a recovery of a one-fourth undivided interest in two certain tracts of land situated in Brazoria county. The suit was originally brought against W. H. Abrams, Paul McCombs, and the Texas Company, but, as W. H. Abrams died pending the suit, his heirs, Harold J. Abrams, Lucien Abrams, and Florence Kelly and husband, and Murphy W. Townsend, as trustee under W. H. Abrams, were made parties defendant.
Plaintiffs alleged that Melvorne McCombs, Mora Atkinson, and Helen Overton were the owners of a one-fourth undivided interest in the two tracts of land described in their petition, said petition being in the usual form of petitions in suits of trespass to try title; they also sue for the value of a large quantity of oil, which they allege was unlawfully extracted from the land and converted by the defendants.
Without qualifying such formal trespass to try title pleading and in reply to contentions of defendants, plaintiffs assert that deeds relied upon by defendants are invalid as against the plaintiffs and seek to set aside the deeds, being a deed by Paul McCombs to W. H. Abrams, dated March 1, 1906, and a deed by two of the three children of Paul McCombs, Melvorne J. McCombs and Mrs. Mora Atkinson, to Paul McCombs, dated November 12, 1907, with release to Paul McCombs as administrator of the estate of their mother, executed and delivered with the delivery of such deed, hereinbefore mentioned.
They allege that they each acquired an undivided interest in the land from their mother at the time of her death in July, 1904, she leaving a will devising her estate to them share and share alike; the two who executed the releases and deed of November, 1907 claim that these were procured by fraud. All of them claim that the deed of March 1, 1906, was ineffective to pass and did not operate to pass their title to the land.
The trial court refused to submit any issue to the jury and sustained the request of all of the defendants for an instructed verdict. Judgment for all of the defendants was entered pursuant to the instructed verdict; a one-sixth undivided interest disclaimed to Mrs. Helen Overton was decreed in her to 100 acres in the northwest corner of the land conveyed by Abrams to Paul McCombs.
The plaintiffs have appealed and as causes for the reversal of the judgment contend: (1) That the evidence raised the issue as to whether the deed of Paul McCombs to W. H. Abrams, of date March 1, 1906, passed the title of the plaintiffs as in exercise, by Paul McCombs, of his power as community survivor, and therefore the court erred in instructing a verdict for defendants; (2) that the instruction of a verdict for defendants was erroneous, in that the evidence raised the issue as to whether or not the land in controversy, or any part thereof, was the separate estate of plaintiffs' mother, which passed to them through her will; (3) that the releases and the quitclaim deed of Mora Atkinson and Melvorne McCombs, of date November 8 and 12, 1907, purporting to convey to Paul McCombs all their interest in their mother's estate, constituted no basis for the instructed verdict, as the evidence showed that such instruments were fraudulently obtained; (4) that the evidence raised the issue as to whether any of the defendants were bona fide purchasers and entitled to protection under their plea of innocent purchaser, etc., and therefore such plea formed no basis for the instructed verdict; and (5) that the evidence raised issues as to whether plaintiffs were barred by the limitations pleaded by defendants from recovery.
In our preliminary statement we have stated all the material transactions shown by the evidence which took place prior to the filing of this suit, and in our discussion of the issues raised by the parties in their respective briefs, with reference to such transactions, we shall as much as possible refrain from repeating the facts as found in such preliminary statement.
We think the court correctly instructed a verdict for defendants, in so far as plaintiffs' claim to an interest passing to them through their mother as her separate estate was concerned: First, because there was no sufficient evidence to raise the issue or to support a verdict engrafting a parol trust in favor of the separate estate of plaintiffs' *Page 588 mother, through whom they claim, upon the legal title held by Paul McCombs. The testimony offered for the purpose of showing a parol trust in favor of plaintiffs' mother was hearsay, especially as to W. H. Abrams and those holding under and through him, and was inadmissible. If, however, such testimony was admissible, still there is no showing that one dollar of Mrs. McCombs' money was in fact used in part payment for the land. The hearsay testimony was given by the witness Crutcher, who testified that in 1901, before the bank conveyed the land to McCombs, McCombs told them that he had an option to buy the land for $4 per acre on terms, and that he intended to buy a half interest for his wife on terms of $800 cash and $1,000 per year thereafter; that his wife's brother had given his wife one-half of the cash payment, and that later McCombs told them that he had taken the $400 given to his wife and had paid it to Abrams. McCombs denied that he made any such statement, and stated that he never paid any money of his wife's on the purchase price of the land, and there is absolutely no evidence that any money of Mrs. McCombs ever was paid in the purchase of the land.
Second, if it be conceded that $400 of the separate funds of Mrs. Florence McCombs was invested by Paul McCombs in the lands in controversy as the trustee of Florence McCombs, still the deed of Paul McCombs of date March 1, 1906, conveying the land to W. H. Abrams, in the absence of a showing of fraud, in view of the terms of the contracts of McCombs with Abrams, of date February 16, and March 25, 1901, hereinbefore set out, passed both the legal and equitable title to the land to W. H. Abrams.
It is shown that whatever conversation, if any, Paul McCombs and his wife had relative to the proposed investment of $400 of her money in the one-half interest in the land took place prior to the delivery of the deed by the bank to McCombs on March 25, 1901. It therefore appears that, if any such agreement was had, the wife made Paul McCombs her agent to purchase an interest in the property for her, and, in order for Paul McCombs to complete such purchase, under the terms given by the bank, it was necessary for him to get Abrams or some one else to go into the deal with him, as trustee, and put up an additional $400 to make up the $800 which was to be paid before the bank would deliver to McCombs the deed conveying to him the land. It is admitted by plaintiffs that Paul McCombs did not have $400 to complete the initial payment of $800. Let it be conceded that Mrs. McCombs gave Paul McCombs $400 of her money to invest in the land, the undisputed evidence shows that, to induce W. H. Abrams to go into the deal so as to enable his wife to make her $400 investment, Paul McCombs agreed with Abrams that whatever portion of the property Abrams paid for should belong to him in proportion to the original purchase price of the land. At the time of such agreement, neither Abrams, Florence McCombs, nor Paul McCombs had any title to the property. The title remained in the bank, its deed had not been delivered to McCombs, and no part of the purchase price had been paid. Florence McCombs, if she did so, was enabled to pay her $400 and make an investment only by reason of the fact that Abrams was induced to go into the deal because of the agreement which Paul McCombs, as her trustee, made with him. Florence McCombs delegated Paul McCombs to close the deal for her and act for her in the transaction. This is a necessary conclusion from the testimony of the two Crutchers, witnesses for plaintiffs, as to what Paul McCombs told them, their testimony being the only evidence tending to show that any money of Mrs. McCombs was paid for the land. The source of Florence McCombs' interest was the agreement inducing Abrams to go into the deal. Her title can rise no higher than its source. She was thereafter enabled to hold on to her $400 interest only because Abrams, induced by the agreement with Paul, continued to pay the purchase money notes. Had Abrams not paid the notes under the agreement, Florence would have lost her $400 investment when the second note matured. Plaintiffs make no contention that she or Paul paid any more on the purchase price, or tendered or offered any other sums to be applied on the purchase price. As said in Johnson v. Smith, 115 Tex. 193,280 S.W. 158, 161: "But for the payments procured by means of Elymas Johnson's promise to hold for plaintiffs in error, there would have been no divestiture of title out of Sherrod [the grantor]. * * * Considering Elymas Johnson's inability to meet the notes, he would get only benefit from the execution of the parol agreement through the discharge of his personal obligation on the notes."
In Howard v. Davis, 6 Tex. 174, our Supreme Court held that a mortgage to secure purchase money given at the time of the conveyance by a trustee would be valid and binding on the property, that the whole transaction should be regarded as but one, and that the conditions of the mortgage be considered as incorporated in the conveyance. The court in that case said: "The legal estate might pass momentarily to the trustee, but would immediately revest in the vendor with the condition, substantially, that it should be extinguished, on the payment of the purchase money. It might be contended, though it has not been argued, that in this aspect, the vendor would hold the property affected by the trust. This might, in a certain sense, be conceded; but the trust could become effectual and operative in the cestui que trusts, only by the payment of the purchase money. This condition entered into its creation, and is an *Page 589 essential element of the trust. Until payment, the vendor has the best right; the superior title."
If we should assume that $400 of Mrs. McCombs' money was used by Paul in part payment of the initial payment of $800 on the property in the transaction with W. H. Abrams, Paul was evidently trying to secure land for his wife, and to do so he entered into a contract with Abrams to secure his assistance in acquiring the same, one of the conditions of such contract being that McCombs was to pay his part, and that this was a condition precedent that McCombs had to comply with before he could acquire the land, and, in order to secure title to such proportionate part thereof as he should pay for, he had the power, independent of his wife, to make any agreement in relation thereto necessary to accomplish that end.
The interest of Mrs. McCombs was acquired by and through and under the agreement inducing Abrams to go into the transaction and inducing Abrams to advance all of the purchase money, except the $400. McCombs, her agent, delegated by her to make the deal, certainly had authority to do that which was necessary to complete the transaction.
But whether Paul McCombs was authorized or not, Florence McCombs and plaintiffs, after her death, permitted Abrams to continue to pay until all the deferred payments were made, and permitted him thereby to protect their $400 investment, under his agreement with Paul McCombs. He was the source of their claim, and their claim can raise no higher than its source. Plaintiffs cannot now claim the benefit of Abrams' acts and repudiate the agreement under which they were performed. They cannot claim the benefit of the investment made by Paul McCombs in behalf of their mother, and repudiate the agreement by and through which McCombs was enabled to make the investment and protect it. They cannot assert an interest derived from this transaction and in the same breath deny its validity.
There is nothing to indicate that Paul McCombs, in making the agreement with Abrams, was acting outside the scope of his agency. We know he was authorized to act for her in closing the deal, and we know his agreement with Abrams was part of the transaction and induced Abrams to go into it.
In Smith v. Olivarri, 127 S.W. 235, 238, 239, the following quotation from the opinion of the court sufficiently indicates the question involved, to wit:
"The sisters of appellant cannot be heard to claim that their husbands represented them in obtaining possession of the property, but that they are not bound by the agreements accompanying the transfer of the property. They obtained only such an estate as arose from the contracts made by the husbands, and they cannot be heard to approve a part of the agreement and to reject that part which did not suit them. They got the estate incumbered with the whole agreement in connection with it. It would be setting a premium on fraud to allow them to appropriate the estate of their brother under a plea that, while their husbands could agree that the land should be conveyed to them, they were not bound by the agreements made by the husbands to induce the conveyance of the land. The oral agreement, if any, was the very basis of the sale, and cannot be rejected. Appellant offered to do full equity in regard to the debts with which the property was incumbered, and to fully protect appellees from any loss by reason of the mortgage given by them.
"The evidence showed that the husbands of appellant's sisters were acting as agents for their wives in the purchase of the property from appellant, and the wives do not repudiate the agency, but claim the right to accept and abide by certain portions of the contract made by their husbands, and to reject other portions of it. This they cannot do. The evidence of appellant shows that the contract with the husbands of his sisters was not only for his benefit, but was absolutely necessary to obtain a loan to protect the interests of his sisters in the Elite Hotel property. That the husbands were acting as agents of the wives is not questioned, and there is nothing to indicate that they were acting beyond the scope of their agency. The law is settled that the husband may be the agent of the wife to make contracts binding her separate estate, but the agency will not be presumed merely from the marital relationship. (citing authorities) The contract, whatever it may have been, with appellant was made by the husbands of appellant's sisters with their full knowledge and consent, and was fully authorized by them, and was for the benefit of their separate estate. The wives deny the authority of the husbands to make the contract which appellant claims was made. They admit the authority of the husbands to contract, but they deny that they made the contract sworn to by appellant."
Under the terms of the contract between McCombs and Abrams, Abrams paid all of the purchase price but the $400, and was entitled to all but 100 acres of the land. If Paul McCombs' deed of March 1, 1906, was not binding upon the $400 interest of the separate estate, the separate estate of Florence McCombs now would be entitled to no more than the 100 acres which Abrams conveyed to McCombs, and in equity could not recover any portion of the land which Abrams in good faith had paid for, developed, and improved.
We have reached the conclusion that the undisputed evidence shows that whatever interest Paul McCombs acquired in the land was community property of himself and wife; *Page 590 that such interest was only so much or such proportionate part thereof as $400 would pay for; that to carry out the terms of the contracts entered into between Paul McCombs and W. H. Abrams, of date February 16, 1901, and March 25, 1901, by which each party was to own such proportionate part of the land as the money he put into the transaction would pay for, W. H. Abrams reconveyed to Paul McCombs 100 acres of land, which McCombs accepted as his part of the land under his contracts with Abrams. The undisputed evidence shows that, at the time, March 1, 1901, Paul McCombs conveyed the land to W. H. Abrams and Abrams reconveyed to McCombs 100 acres thereof, the community estate of the McCombs was indebted $3,000 or more for their part of the purchase price of the land; that Abrams paid all the purchase money for the land, and that in the latter part of the year 1906, McCombs repaid to Abrams $400 of such money, and that that sum was all that was paid by McCombs of the purchase price of the land.
The facts as above stated, being shown by the undisputed evidence, gave Paul McCombs the authority, after the death of his wife, to sell the interest, apparently owned by the community estate of himself and wife, to pay community debts.
Though we have searched the statement of facts, we have been unable to find any evidence tending to show that McCombs' sale of the land to Abrams was made in bad faith, but we find that the sale was made in good faith to pay the debts of the community estate, only after McCombs found himself unable to otherwise pay such debt.
For another good and sufficient reason, we think the deed of Paul McCombs to W. H. Abrams of date March 1, 1906, passed the title to the land to Abrams. As already shown, Paul McCombs, finding himself unable to purchase and pay for the land under the terms given him by the owners, the bank, entered into an agreement with W. H. Abrams, evidenced by instruments signed by him and delivered by him to Abrams, that if Abrams would join him in the purchase of land, one of which reads as follows:
"16 February, 1901.
"State of Texas, Dallas County
"Whereas, I have this day sold to W. H. Abrams an undivided one-half interest in and to certain lands aggregating about 1700 acres in Brazoria County, Texas, upon which there is yet due about $6000.00.
"Now, as part of said sale, I hereby agree that in case I should be unable or unwilling to pay my part of the purchase money still due on said land, then said Abrams shall have the right to pay said purchase money in full and receive title to the entire tract of land, allowing me to retain so much of same as I may have paid proportional to the whole amount of the purchase money.
"Paul McCombe."
Abrams accepted McCombs' proposition and thereafter paid all of the purchase price, and thereafter McCombs repaid to Abrams $400, and no part of the purchase price was paid by McCombs, except said $400.
Under the facts shown, it is evident that plaintiffs never had any title to the land and never inherited from their mother any right, save and except a chance to obtain a title dependent upon payment of the purchase price by their father, and that chance, by reason of their father's agreement with Abrams, was measured as to quantity of interest by the portion of the purchase price which their father, Paul McCombs, might eventually pay. As before stated, he paid only $400. This right terminated when their father carried out the contract made by him with Abrams, and the title vested in Abrams when he completed the payment of all the purchase money.
The power of the survivor to perform agreements made during the existence of the marriage is well settled by numerous authorities. Stramler v. Coe, 15 Tex. 211; Brewer v. Wall, 23 Tex. 586,76 Am.Dec. 76; Garnett v. Jobe, 70 Tex. 696, 8 S.W. 505; Hilburn v. Harris,2 Tex. Civ. App. 395, 21 S.W. 572.
In Stramler v. Coe, the survivor performed a contract or bond to convey real estate which had been executed by him during the marriage. The contract or bond recited no consideration, but a valuable consideration was established by oral testimony. In that case the court said:
"This is one of those causes, now becoming too frequent, in which the heirs of a deceased wife are attempting to claim the one-half of the community property, and to subvert the acts and alienations of their father, done by him during the existence of the community, and also after its dissolution by the death of his wife. Controversies of this character are painful in their nature, and the presumption must always be against the child who disavows the acts of the author of his life, and virtually or expressly charges him with fraud and wrong in squandering and alienating property not his own, but that of his children. `Honor thy father and mother' is a command, not only of the Decalogue, but of nature: and suits in which rights can be claimed only through the alleged turpitude of a parent, are not to be encouraged. These remarks have no special application to the parties in this cause, in fact, not so much as in others, for, from the evidence, it appears that the transaction was never satisfactory to the wife, and there is the more excuse for the attempt at repudiation, on the part of the children; and this brings us to the main question, that is, whether the bond, although unsatisfactory to the wife, was binding on *Page 591 her and on her heirs claiming a share of the community in her right. * * *
"The conveyance of Price, after the death of his wife, being but the completion of a preexisting arrangement, made during the existence of the matrimony, must be held as valid as if made in the life time of the wife. As surviving partner, he had authority to perfect a transaction commenced during the partnership, and this rule is of special force and application in cases of conjugal partnership, in which there is a head that has the entire control of the affairs of the partnership, with no restraint except that it shall not be abused with fraudulent intent against the rights of the other partner.
"Such being the rights of the husband, as head of the community and as surviving partner, the heirs of the wife cannot repudiate his acts and contracts, begun before but finished after the death of their mother. They received their mother's interest, but encumbered with burdens which have the same binding force and effect upon them, as they have upon the husband and surviving partner."
Paul McCombs in executing the deed to Abrams did no more than Abrams could have forced him to do.
We now come to a consideration of appellants' contention that the releases executed and delivered to Paul McCombs, as administrator of the estate of Florence McCombs, by Mora Atkinson, joined pro forma by her husband, Ben Atkinson, and by Melvorne McCombs, by the terms of which they declared that Mora and Melvorne had each received the sum of $4,963 from Paul McCombs in full settlement of any and all claims for any distributive share, or otherwise, against the estate of Florence J. McCombs, deceased, and against both community and separate estate, and that such settlement should constitute a final and complete discharge from them to Paul McCombs, individually and as administrator, and to the sureties on his bond (said receipt being dated March 8, 1907), and the quitclaim deed executed and delivered by them to Paul McCombs on the 12th day of November, 1907, by the terms of which they quitclaimed and transferred to Paul McCombs "all their right, title, claim, and interest in or to all property, real or personal, wherever situated, belonging to the community estate of Paul McCombs and Florence J. McCombs, or to the separate estate of Florence J. McCombs." the consideration cited being of the full and final settlement made between the grantors and grantees of all matters relating to the separate estate of Mrs. McCombs, deceased, and the community estate of Paul and Florence McCombs, did not divest the plaintiffs of any interest they had in or to the land in controversy, because such instruments were fraudulently obtained, at least the issue as to whether or not they were so obtained was raised by the evidence, and therefore the court erred in instructing a verdict for the defendants.
What we have said in the discussion and disposition of contentions 1 and 2 disposes of the contentions last mentioned, in so far as they may be construed as an attack on the validity of the title acquired by Abrams, and those holding under him, to the lands described in the deed of Paul McCombs to W. H. Abrams of date March 1, 1906.
We shall therefore consider appellants' attack on the releases and quitclaim deed executed and delivered to Paul McCombs, of dates November 8 and 12, 1907, respectively as an attack only on the validity of the title acquired by Paul McCombs by such instruments, and that acquired by those holding under him by virtue of his deed to W. H. Abrams of March 23, 1914, by which he conveyed the 100 acres of land to W. H. Abrams. We overlooked this deed when we made our preliminary statement, so we now add a statement that on March 23, 1914, Paul McCombs, by his deed of that date, for a consideration of $500 cash, conveyed the 100 acres of land to W. H. Abrams. This 100 acres was thereafter leased, together with the land conveyed by McCombs to Abrams on March 1, 1906, to the Producers Oil Company, which was later transferred to and became and is now the property of the Texas Company.
For grounds of the attack on the leases and quitclaim deed mentioned, appellants alleged that Paul McCombs fraudulently concealed from them that there was any land situated in Brazoria county belonging to the estate of Florence McCombs, and falsely represented to them that the property situated in Dallas county, which he had sold under orders of the court, was all the property owned by said estate; that by reason of such concealment and false representations, they were induced to execute and deliver to Paul McCombs the releases and quitclaim deed, and that therefore such instruments were fraudulently obtained and had no effect to pass their interest in the land in Brazoria county, particularly the 100 acres mentioned, and that, since Paul McCombs got no title by virtue of such instruments, neither W. H. Abrams, to whom McCombs conveyed the 100 acres in 1914, nor those holding under him, got any title to the 100 acres.
There was, we think, sufficient evidence to raise the issue of the fraud alleged by appellants, and, if it is made to appear that a decision of such issue in favor of appellants would have affected the right of the parties, the court erred in taking that issue from the jury and instructing a verdict for appellees.
We have, however, reached the conclusion that, if it be conceded that the instruments attacked as having been fraudulently *Page 592 obtained did not irrevocably pass title to the property conveyed thereby to Paul McCombs, nevertheless W. H. Abrams acquired title to the 100 acres by virtue of his deed from Paul McCombs of date March 23, 1914. As a purchaser in good faith, without notice or knowledge of the alleged fraud of McCombs, his title passed to those holding under him.
The quitclaim deed of Mora Atkinson and husband, and Melvorne McCombs, was duly filed for record July 31, 1908, in Brazoria county, Tex. There is no evidence whatever that W. H. Abrams at any time had any notice or knowledge that such quitclaim deed was procured by any fraud practiced by Paul McCombs on the grantees in said deed; therefore he had the right to rely upon the record title as it appeared in the proper deed records, and, having done so, and having purchased the land from the record owner thereof, and having received a deed thereto, he became a purchaser in good faith, and the defendants, his heirs, hold title through and under him, and certainly the Texas Company, who holds under W. H. Abrams, holds such interest in the land as was conveyed by Abrams to them or them through the Producers' Oil Company.
It is apparent from what we have said that we think that the undisputed evidence shows that the deeds of McCombs to W. H. Abrams of date February 16, 1901, and March 1, 1906, respectively, were executed in compliance with his contracts or agreements made by him with Abrams to convey the land to Abrams in the event he (McCombs) found himself unable to pay his part of the purchase money due the bank, and that they had the effect to convey to Abrams a valid legal title to all the land in controversy, except the 100 acres which, in compliance with the above-mentioned agreements, Abrams reconveyed to McCombs. We have also reached the conclusion that the 100-acre tract passed to Abrams by the deed from McCombs to him of date March 23, 1914, and that the court did not err in instructing a verdict for appellees for the land in controversy.
There still remains to be disposed of the contention of appellees that the instructed verdict for defendants was properly given, in that the undisputed evidence shows that appellees were entitled to a recovery under their pleas of limitation. While we are inclined to agree with such contention, we think it unnecessary to discuss the question, in view of our holding that the defendants hold their respective interests in the property by virtue of the deed from McCombs to W. H. Abrams.
For the reasons above expressed, the judgment is affirmed.
Affirmed.
Loading…