Bailey v. Mullens
| Decision Date | 02 April 1958 |
| Docket Number | No. 13323,13323 |
| Citation | 313 S.W.2d 99 |
| Parties | Gambrell BAILEY et al., Appellants, v. Leonard MULLENS, Executor of the Estate of Ruby Jane Bailey et al., Appellees. |
| Court | Texas Court of Appeals |
Alsup & Alsup, Corpus Christi, for appellant.
Wm. Brode Mobley, Jr., Corpus Christi, for appellee.
This suit was brought by appellees, Leonard Mullens, Executor of the Estate of Ruby Jane Bates Bailey, and the Ayers Street Church of Christ, Devisee of the Estate of Ruby Jane Bates Bailey, against appellants, Gambrell Bailey, Tressie Bell Jacobs, formerly Tressie Bell Bailey, and Dorsey Jacobs. It was a trespass to try title suit to recover the title and possession of Lot No. 3, Block No. 4, Bay View No. 3, as addition to the City of Corpus Christi, Nueces County, Texas. The trial was to the court without a jury, and the court rendered judgment in favor of appellees. This appeal is from that judgment.
The parties have stipulated the following facts:
S. C. Bailey and wife, Ruby Jane Bates Bailey, husband and wife, had no children of said marriage. Appellant Gambrell Bailey is the son of S. C. Bailey by a former marriage.
On November 5, 1941, during the marriage between S. C. Bailey and Ruby Jane Bates Bailey, she acquired as her separate property and estate, Lot No. 3, Block No. 4, Bay View No. 3, an addition to the City of Corpus Christi, Nueces County, Texas. Thereafter, on February 20, 1943, Ruby Jane Bates Bailey and S. C. Bailey executed and acknowledged the instrument in question in this case and delivered it to Gambrell Bailey and Tressie Bell Bailey, who thereafter caused said instrument to be duly filed and recorded in the Deed Records of Nueces County, Texas.
During the lifetime of Ruby Jane Bailey and S. C. Bailey and subsequent to the date of said instrument, Gambrell Bailey improved and did carpenter work upon the premises and added a room to the property; built a kitchen cabinet; recanvased and repapered said house; and painted the property described in said instrument.
On February 7, 1957, Ruby Jane Bates Bailey made her last will and testament, designating the appellee Ayers Street Church of Christ sole devisee thereunder, and giving to said Church Lot No. 3, Block No. 4, Bayview No. 3, an addition to the City of Corpus Christi, Nueces County, Texas, in fee simple, as well as all her other estate, real, personal or mixed.
Ruby Jane Bates Bailey died in Corpus Christi, Texas, on February 15, 1957. She had not re-married after the death of S. C. Bailey, some thirteen years before. On February 19, 1957, her will was filed for probate and subsequently appellee Leonard Mullens was appointed executor of the estate of Ruby Jane Bates Bailey, by the Probate Court.
The appellee Ayers Street Church of Christ, from June 1, 1954, until February 1, 1957, contributed the sum of $2,177.95, for the support and maintenance of the said Ruby Jane Bates Bailey, and for her medical expenses and numerous bills. Prior to her death, Ruby Jane Bailey made said Church the beneficiary under her life insurance policy.
The parties have presented numerous points and counterpoints, but the decision of the entire case rests on the construction of the following instrument:
'A. Deed of Trust to be executed after our death, and not to be recorded until S. C. Bailey and Ruby Jane Bailey his wife have passed to the great beyond.
'The State of Texas,}
'County of Nueces.}
Known All Men By These Presents:
'That I, S. C. Bailey and Ruby Jane Bailey, his wife do sell a certain lot located in the town of Corpus Christi, Texas, house and furniture Lot No. 3 situated in Block 4, Bay View No. (3) for the consideration of $2,500 to be paid in monthly payments without interest.
of the County of _____ State of _____ for and in consideration of the sum of $25 in cash and nine promissory notes--Eight for $300 each and one for $100. No interest is charged, as we are to occupy and control the property as long as we live.
'After death Gambrell Bailey and wife are to charge of the property to _____ paid, and secured to be paid, by _____ take Furniture, clothing, monies, and papers,--Everything in their possession at death, as follows:
'Gambrell Bailey and Tressie Bell Bailey his wife agrees to pay all taxes and insurance and up keep of the place and all insurance is to be taken out in S. C. Bailey name. _____ have Granted, Sold and Convehed, and by these presents do Grant, Sell and Convey, unto the said _____ of the County of _____ State of _____ all that certain
'To Have And To Hold the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging, unto the said S. C. Bailey and wife Ruby Jane Bailey heirs and assigns forever; and we do hereby bind our heirs, executors and administrators, to Warrant and Forever Defendant, all and singular, the said premises unto the said Gambrell Bailey and wife, Tressie bell Bailey heirs and assigns, against every person whomsoever lawfully claiming, or to claim the same, or any part thereof by, through or under them, but not otherwise
'But it is expressly agreed and stipulated that the Vendor's Lien is retained against the above described property, premises and improvements, until the above described note agreement Eight notes $300 each and one $100 are fully paid according to face and tenor, effect and reading, when this deed shall become absolute.
'WITNESS _____ HAND AT _____ THIS ___ day of _____ a.d.19__
'Witnesses at Request ________ of Grantor:
'The State of Texas,}
County of Nueces.}
Before Me, Inez Beatty, a Notary Public, in and for Nueces County, Texas, on this day personally appeared S. C. Bailey known to me to be the person whose name _____ subscribed to the foregoing instrument and acknowledged to me that he executed the same for the purposes and consideration therein expressed.
'Given Under My Hand And Seal Of Office this 22nd day of February, A.D.1943.
'Notary Seal
/s/ Inez Beatty, Notary Public in and for Nueces County, Texas.
'The State of Texas,}
'County of Nueces.}
Before Me, Inez Beatty, a Notary Public, in and for Nueces County, Texas, on this day personally appeared S. C. Bailey and Ruby Jane Bailey, his wife, both known to me to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed, and the said Ruby Jane Bailey, wife of the said S. C. Bailey having been examined by me privily and apart from her husband, and having the same fully explained to her, she, the said Ruby Jane Bailey acknowledged such instrument to be her act and deed, and she declared that she had willingly signed the same for the purposes and consideration therein expressed, and that she did not wish to retract it.
'Given Under My Hand And Seal Of Office this 22nd day of February, A.D.1943.
'/s/ S. C. Bailey
'/s/ Ruby Jane Bailey
'Notary Seal
'Inez Beatty Notary Public in and for Nueces County, Texas.'
The appellants contend that the instrument is a deed which conveys the property to them. The appellees contend that the instrument is a nullity and conveys no title, for various reasons. We agree with appellants' contention.
Article 1292, Vernon's Ann.Civ.Stats., prescribes the substance and usual form of deeds of conveyance, and Article 1293 provides:
'No person shall be obliged to insert the covenant of warranty, or be restrained from inserting any clause or clauses in conveyances hereafter to be made, that may be deemed proper and advisable by the purchaser and seller; and other forms not contravening the laws of the land shall not be invalidated.'
There are various rules of construction which we think are pertinent here:
The cardinal rule for the construction of deeds is that the intention of the parties is to be ascertained, and, if not forbidden by law, effectuated, gathered from the entire instrument, together with the surrounding circumstances unless such intention is in conflict with some unbending canon of construction or settled rule of property, or is repugnant to the terms of the...
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Harkins v. N. Shore Energy, L.L.C.
...this interpretation is unreasonable because it would contravene the statute of frauds. See, e.g., Bailey v. Mullens, 313 S.W.2d 99, 102 (Tex.Civ.App.-San Antonio 1958, writ ref'd n.r.e.) ("A sound rule of construction requires an interpretation under which the deed will be valid and operati......
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Neece v. A.A.A. Realty Co.
...of the agreement, for 'An instrument is that which its language shows it to be, without regard to what it is labelled.' Bailey v. Mullens, Tex.Civ.App., 313 S.W.2d 99, loc.cit. 103, wr. ref., n.r.e.; Pate v. Goyne, 212 Ark. 51, 204 S.W.2d The form of contract or listing card involved in thi......
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Harkins v. N. Shore Energy, L.L.C.
...this interpretation is unreasonable because it would contravene the statute of frauds. See, e.g., Bailey v. Mullens, 313 S.W.2d 99, 102 (Tex. Civ. App.—San Antonio 1958, writ ref'd n.r.e.) ("A sound rule of constructionrequires an interpretation under which the deed will be valid and operat......
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Harkins v. N. Shore Energy, L.L.C.
...this interpretation is unreasonable because it would contravene the statute of frauds. See, e.g., Bailey v. Mullens, 313 S.W.2d 99, 102 (Tex. Civ. App.—San Antonio 1958, writ ref'd n.r.e.) ("A sound rule of construction requires an interpretation under which the deed will be valid and opera......
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CHAPTER 3 A REVIEW OF BASIC LAWS GOVERNING TITLE TO REAL PROPERTY AND LOCAL RECORDING SYSTEMS, AND THEIR IMPACT ON MINERAL TITLE EXAMINATION
...753 (Tex. App. 1974). [9] Lindquist v. Ball, 441 N.W.2d 590 (Neb. 1989); But see Ariz. Rev. Stat. § 33-401 (2007); Bailey v. Mullens, 313 S.W.2d 99 (Tex. App. 1958). [10] 23 Am. Jur. 2d, Deeds, § 328 at 292 (1983). [11] 23 Am. Jur. 2d, Deeds, § 335 at 296 (1983). [12] 23 Am. Jur. 2d, Deeds,......