Barksdale v. Benskin

• Decision Date: 28 March 1917
• Docket Number: (No. 5820.)
• Parties: BARKSDALE v. BENSKIN et al.
• Court: Texas Court of Appeals

Page 402

194 S.W. 402

BARKSDALE v. BENSKIN et al.

(No. 5820.)

Court of Civil Appeals of Texas. San Antonio.

March 28, 1917.

Rehearing Denied April 25, 1917.

Appeal from District Court, Edwards County; R. H. Burney, Judge.

Action by K. H. Barksdale against J. M. Benskin and others. From a judgment for defendants, plaintiff appeals. Reversed and rendered.

J. E. Friestman, of Rock Springs, and Will A. Morriss and Lipscomb & Lipscomb, all of San Antonio, for appellant. Clarence Martin, of Austin, and Jno. W. Hill, of Uvalde, for appellees.

SWEARINGEN, J.

Appellant, K. H. Barksdale, brought this suit against appellees in the statutory form of "trespass to try title" to recover the S. W. 7/8 of survey No. 40 and the E. 1/2 of survey No. 44. Appellees answered by a plea of "Not guilty" and limitation. The cause was tried with a jury, which was instructed by the court to find a verdict for appellees herein, in accordance with which verdict the court rendered judgment for appellees.

The record shows the following facts: Ellis, by general warranty deed, dated June 20, 1903, and filed for record September, 1903, conveyed the fee estate in the land herein sued for to K. H. Barksdale, in consideration of $4,500 cash paid. K. H. Barksdale at once leased the same to Ellis, her grantor, in consideration for which Ellis promised to pay the taxes and interest as they became due to the state. Appellant, shortly after making this lease, became a nonresident of the state of Texas. Ellis continued to use the property himself, and by his subtenants until December 3, 1906, when he executed an instrument, conveying to J. M. Benskin, one of the appellees, the land involved in this suit, together with a number of other sections of land. This instrument was recorded February 7, 1907, and Benskin complied with all the requirements prescribed by article 5674, as essential to acquire land by the five-year limitation. The instrument from Ellis to Benskin was the deed claimed under to support the plea of five year limitation and is as follows:

"The State of Texas, County of Edwards:

"Know all men by these presents: That I, J. J. Ellis of the county of Edwards and state of Texas, for and in consideration of the sum of twenty-five ($2,500.00) hundred cash to me in hand paid by J. M. Benskin of the county of Edwards and state of Texas, the receipt of which is hereby acknowledged together with the execution and delivery to me by the said J. M. Benskin of his certain promissory note of even date with this instrument for the sum of fifteen hundred ($1,500.00) dollars drawing eight per cent. (8%) interest payable to the order of J. J. Ellis at Rock Springs, Texas, on the 1st day of May, 1907, which said note is secured by a vendor's lien on the premises hereafter conveyed and described and which said note is payable only upon the condition that the said J. J. Ellis makes to the said J. M. Benskin a warranty deed to sec. 53, below with clear title thereto, do by these presents, bargain, sell, release and forever quitclaim unto the said J. M. Benskin his heirs and assigns all of my right, title and interest in and to that certain tracts and parcels of land lying and being situated in Edwards county, Texas, described as follows, to wit:

                Abst.          Sur.  Cert.  Blk.    Original Grantee.      Acres
                                39    1740   10    G., H. & S. A. Ry. Co.   581
                                53      68    2    Brooks & Burleson        640
                                45    1743   10    G., H. & S. A. Ry. Co.   640
                                43    1742   10             "               640
                                61    1801   10             "               640
                                38    1739   10             "               474¼
                S.W. 7/8   40    1740   10             "               527 5/8
                                42    1741   10             "               640
                                44    1742   10             "               640
                

"To have and to hold the said premises together with all and singular the rights, privileges and appurtenances thereto in any manner belonging, unto the said J. M. Benskin, his heirs and assigns, forever, so that neither I, the said J. J. Ellis, nor my heirs, nor any person or persons claiming under me, shall, at any time hereafter, have, claim, or demand any right or title to the aforesaid premises or appurtenances, or any part thereof. But it is expressly agreed, understood and stipulated that a vendor's lien is retained on the aforesaid described premises until the aforementioned and described note and all interest thereon has been fully paid when this deed shall become absolute as a quitclaim deed.

"Witness my hand at Rock Springs, Texas, this the 3d day of December, 1906.

                                           "J. J. Ellis."
                

Ellis' right, title, and interest in several of the surveys above conveyed was only a lease, and not the fee, which fact was understood by Benskin, the grantee.

The questions presented for this court to determine are the following: Is the conveyance from Ellis to Benskin a deed, or merely a quitclaim deed? Is the instrument ambiguous, requiring extrinsic evidence for a correct determination of its intent? Is a quitclaim deed a deed such as is required by the five-year limitation statute?

The granting clause is:

"Bargain, sell, release and forever quitclaim" all of "my right, title and interest in and to."

The habendum clause is:

"To have and to hold the said premises * * * so that neither I, the said Ellis, nor my heirs, nor any person or persons claiming under me shall," etc.

Both the granting and the habendum clauses are in substantially the same terms as the granting and habendum clauses in the deed construed by the Supreme Court in the case of Cook v. Smith (Sup.) 174 S. W. 1094, wherein Chief Justice Phillips uses the following language:

"If the character of the instrument were dependent, alone, upon the construction of these parts of it, there could be no doubt, under the authority of Threadgill v. Bickerstaff, supra (87 Tex. 520, 29 S. W. 757), and Hunter v. Eastham, 95 Tex. 648, 69 S. W. 66, of its being simply a quitclaim deed, since these clauses are in substantially the same terms as the granting and habendum clauses of the respective instruments reviewed in those decisions and there held to be quitclaim deeds."

The Ellis deed now before us contains no words directly declaring that it was the intent by the conveyance to pass a fee-simple estate in the land as in the Cook-Smith Case, supra.

There are, however, two other clauses in the Ellis-Benskin instrument which must be considered in determining the extent of the estate conveyed, whether the fee or only such estate as Ellis had at the time the instrument was executed. A portion of the consideration clause is:

"Which said note is payable only upon the condition that the said J. J. Ellis makes to the said J. M. Benskin a warranty deed to sec. 53 below, with clear title thereto."

Section 53 is one of the surveys sold and described in the Ellis-Benskin conveyance along with the land involved in this suit. The agreement that Ellis would, by a subsequent warranty deed, convey a clear title to survey 53 indicates that the instrument under consideration was not a deed conveying the fee in survey 53, but that a subsequent deed would be necessary for that purpose. It further indicates that Ellis did not claim the fee to 53 at that time. And yet 53 is conveyed by the same granting and habendum clauses as 40 and 44. If the above-quoted condition in the consideration clause could, in any event, prevail over the granting and habendum clauses of the instrument before us, it certainly is not sufficiently clear in this instance to nullify those two clauses. It seems to us that the said condition is in entire harmony with the intent expressed by both the granting and habendum clauses, which intent is that only such interest in the land is conveyed as the grantor actually had at that time.

The only other clause that tends to throw light on the extent of the estate intended to be conveyed is the clause reserving a vendor's lien to secure the payment of the note referred to in the conditional part of the consideration clause. The fact that a vendor's lien is retained in the instrument should be considered together with all other parts of the instrument to determine the real and true intent. Chief Justice Roberts has thus expressed the rule:

"The fact appearing in the deed that the company expressly retained a vendor's lien might be construed as tending to show that it was intended to sell the land with the absolute right of the fee, and not merely the title or chance of the title, and if that fact had been aided by proof of payment of full value of the lot, as though no adverse interest was claimed on it, or other like circumstances, it might have been left to the jury to determine in connection with the deed whether or not the parties intended to convey such absolute right to the land as that it was not regarded and intended by them to be a mere quitclaim deed to the land, notwithstanding it purported to convey only the company's right and title, and contained only a special warranty. A deed, as other instruments, may be read and construed under the light of the surrounding circumstances under which it was executed." Harrison v. Boring, 44 Tex. 255.

In the present instrument, the vendor's lien seems to have been only on section 53, for it is provided that the note and lien shall be canceled entirely if clear title to 53 is not subsequently deeded to the grantee. Then again a vendor's lien can be retained on any interest or estate in land, though less than the fee. This being true, it follows that retaining a vendor's lien in the instrument does not expressly, nor by any implication, contradict and nullify the granting and habendum clauses of the instrument here considered. At the very most, the vendor's clause could only raise the question, viz.: Does it contradict and control the granting and...