Austin v. Austin, 8200.

• Decision Date: 08 March 1944
• Docket Number: No. 8200.,8200.
• Citation: 182 S.W.2d 355
• Parties: AUSTIN et al. v. AUSTIN et al.
• Court: Texas Supreme Court

Page 355

182 S.W.2d 355

AUSTIN et al. v. AUSTIN et al.

No. 8200.

Supreme Court of Texas.

March 8, 1944.

Rehearing Denied June 14, 1944.

Further Rehearing Denied October 11, 1944.

Error from Court of Civil Appeals of First Supreme Judicial District.

Suit by Yancy Austin, Jr., and others against LeGory Austin and others to partition four tracts of land, wherein the widow and children of R. C. Spinks, deceased, intervened. A judgment for plaintiffs as prayed was affirmed by the Court of Civil Appeals, 174 S.W.2d 1010, and the defendants bring error.

Affirmed.

Adams & Morgan, of Crockett, for petitioners.

Aldrich & Crook, of Crockett, for respondents.

FOLLEY, Commissioner.

This is a partition suit, originating between the four surviving children and heirs of Yancy Austin, Sr., and wife, Georgia Austin, both deceased, in which three of the children, Obelia Tarver, Yancy Austin, Jr., and Iona Jenkins, joined by her husband, sued their brother, the petitioner LeGory Austin, to partition and divide four tracts of land in Houston county in equal shares between the four children. The widow and children of R. C. Spinks, deceased, intervened in the cause. They claimed that LeGory Austin had sold R. C. Spinks an undivided 1/8 interest in one of the four tracts consisting of 101.5 acres and asked that such interest be set aside to them. Petitioner claimed title to 7/8 of the latter tract by virtue of a deed from his parents. The original plaintiffs recovered judgment in the trial court for their respective 1/4 interests in each of the four tracts of land, and the intervenors recovered their 1/8 interest in the 101.5 acre tract, thus allowing petitioner a 1/4 interest in the three tracts and a 1/8 interest in the 101.5 acre tract. There was no controversy in the courts below relative to the first three tracts, hence there is none in this court. The complaint concerns only the interest of the four children in the 101.5 acre tract involved in the deed. The Court of Civil Appeals affirmed the judgment of the trial court. 174 S.W.2d 1010.

In their original petition the three plaintiff children merely alleged that they and their brother, LeGory Austin, were the surviving heirs of their deceased parents and sought partition of the four tracts of land described in their petition in equal shares between the four children. By supplemental petition such original plaintiffs alleged that petitioner was claiming full title to the 101.5 acre tract under a purported deed from his parents of the date of November 1, 1921, duly recorded in the Deed Records of Houston county, but which they asserted was not a conveyance but merely a mortgage for the purpose of securing a debt owed by their deceased father, Yancy Austin, Sr., to one J. S. Shivers. They further alleged that such purported deed was not intended to operate as a conveyance; that neither the deed nor the possession of the land was ever delivered to LeGory Austin; that petitioner had never asserted full title to the land until long after the death of his parents; and that he had only recently entered into possession of such land and for the first time asserted any ownership therein by virtue of the deed.

After the filing of the plea of intervention the original plaintiffs and intervenors, respondents in this court, joined together in a second supplemental petition in which they alleged that if such deed was intended as a conveyance, the grantors therein had rescinded such sale under the authority vested in them in the vendor's lien therein retained.

The substance of the pleadings of petitioner was a general denial and a plea of limitation of four years based upon the assumption that respondents were attempting to rescind the deed of November 1, 1921, although no such equitable relief was sought by them.

As a factual background for the verdict of the jury and the judgment of the trial court, the evidence, as hereinafter stated, is practically undisputed.

For several years prior to the date of the purported deed, Yancy Austin, Sr., had been purchasing supplies from J. S. Shivers, a merchant of Crockett, Texas. Austin fell behind in his account and Shivers demanded security of him for the existing debt and for further supplies to be furnished. Shivers suggested to Austin that he sell a tract of his land to one of his children in order to create some vendor's lien notes which might be transferred to Shivers as security for Austin's debt. On November 1, 1921, Yancy Austin, Sr., and wife executed the deed purporting to convey the 101.5 acres of land to their son, the petitioner, and in turn petitioner executed four vendor's lien notes each in the sum of $250 payable to his father in one to four years from date, respectively. The deed recited no consideration other than the four notes. Yancy Austin, Sr., filed the deed for record on November 26, 1921, with the county clerk of Houston county. After the same was duly recorded the clerk redelivered the deed to him on December 10, 1921. On February 20, 1922, the four vendor lien notes and the lien securing their payment were pledged to Shivers in a written assignment from Yancy Austin, Sr.

In January, 1925, Yancy Austin, Sr., executed a deed of trust covering other lands in favor of the Crockett State Bank to secure a loan. In such instrument he designated the land here involved as a part of his homestead. In April, 1925, he and his wife executed an oil lease on the land in question and retained the full consideration therefor. In 1926 Yancy Austin, Sr., died, at which time only a part of his debt to Shivers had been paid by him. Thereafter his widow, Georgia Austin, paid the remainder of the indebtedness to Shivers and the four vendor's lien notes were thereupon surrendered to her.

The possession of the land was never delivered to petitioner by his parents but was retained by the father until his death in 1926, and thereafter by the mother until her death in 1934. Yancy Austin, Sr., paid the taxes on the land until his death and thereafter his widow paid one-half of them and the four children the other half, each child paying 1/8 thereof.

In 1933, subsequent to the death of his father and prior to the death of his mother, petitioner conveyed to R. C. Spinks his 1/8 interest in the land, reciting in the deed that it was his interest which he had derived from his deceased father, and that his mother was still living. After the death of his mother petitioner paid only 1/8 of the taxes on the land, the respondents paying the remainder. On August 12, 1936, petitioner joined the other three children and R. C. Spinks in the execution of an oil lease upon the land and, without objection or claim to the contrary, allowed his brother and sisters each to receive 1/4 of the proceeds of the transaction. In 1937 ...