Bryson v. Connecticut General Life Ins. Co.

• Decision Date: 10 July 1946
• Docket Number: No. 9556.,9556.
• Citation: 196 S.W.2d 532
• Court: Texas Court of Appeals
• Parties: BRYSON v. CONNECTICUT GENERAL LIFE INS. CO. et al.

Page 532

196 S.W.2d 532

BRYSON v. CONNECTICUT GENERAL LIFE INS. CO. et al.

No. 9556.

Court of Civil Appeals of Texas. Austin.

July 10, 1946.

Rehearing Denied October 2, 1946.

Appeal from District Court, Concho County; O. L. Parish, Judge.

Suit by John Bryan Bryson, Jr., against Connecticut General Life Insurance Company and others for a declaratory judgment and other relief. From a judgment denying him any relief and dismissing his suit, plaintiff appeals.

Judgment reversed and cause remanded.

Scott Snodgrass, of San Angelo, and Holloway, Hudson & Shirley and Luther Hudson, all of Fort Worth, for appellant.

H. A. Berry, of Houston, Hamilton, Dyer & Shults and Adair Dyer, all of Dallas, Sedberry & Williams, M. E. Sedberry, Upton, Upton & Baker, and Travis E. Baker, all of San Angelo, W. Clyde Odeneal, of Dallas, L. B. Harris, of San Angelo, Ashby & FitzGerald and F. C. Ashby, all of Midland (J. R. Wood and J. L. Walsh, Jr., all of Dallas, Seeligson, Cox & Patterson and J. J. Cox, all of San Antonio, and Albert J. DeLange and DeLange, Beman & Hudspeth, all of Houston, of counsel), for all appellees except John Bryan Bryson, Sr.

McCLENDON, Chief Justice.

This suit involves the proper construction of a deed executed May 4, 1910, recorded May 10, 1910, whereby John H. and Ellen E. Bryson (husband and wife) conveyed to their son John Bryan Bryson a life estate in some 5,000 acres of land in Concho County (their community property), with remainder to the latter's children or their descendants should any survive him, absent which to other stated remaindermen. The suit was brought by John Bryan Bryson, Jr., only child of John Bryan Bryson, for a declaratory judgment and other relief, against his father and various parties claiming ownership of or liens upon portions of the land under mesne conveyances from his father. There was a pre-trial hearing at which certain stipulations of uncontroverted facts were made and considered by the court in passing upon exceptions to the petition; which exceptions were sustained and final judgment was rendered denying any of the sought relief and dismissing the suit. The plaintiff has appealed.

For convenience we shall use the initials J. H. B., J. B. B., Sr., and J. B. B., Jr., to denote respectively John H. Bryson, John Bryan Bryson (his son and grantee of the life estate in the deed in question) and John Bryan Bryson, Jr., the plaintiff below and appellant here, son of J. B. B., Sr., and grandson of J. H. B. and wife, Ellen.

The controlling facts, as disclosed by the petition and the pre-trial stipulations, are these:

J. H. B. (born April 6, 1853) and Ellen E. Bryson (born February 11, 1865) were married April 20, 1881, and had nine children, born in the respective years 1885, 1886, 1888, 1891, 1894, 1896, 1899, 1902, and 1904. J. B. B., Sr., was born July 24, 1896, was therefore nearly 14 years old when the deed was executed, and became of age July 24, 1917. Meantime, his father J. H. B., had died April 10, 1915. The pertinent portions of the deed are copied in Note below.¹ At the time of its execution J. H. B. was 57 years of age, and his wife was in her 46th year. J. B. B., Sr., married his wife, Grace, November 28, 1920, and J. B. B., Jr., their only child was born October 12, 1923.

March 14, 1921, Ellen E. Bryson brought suit in the district court of Runnels County against J. B. B., Sr., and wife, Grace, to cancel the deed and recover the land therein conveyed. The same day J. B. B., Sr., and wife, Grace, filed a waiver of service and entry of appearance in the suit, reading: "Now come the defendants, John Bryan Bryson and wife, Grace Bryson, in the above entitled cause and waive the issuance of citation to us in said cause and hereby accept service in said cause and submit to the jurisdiction of this court at this the March Term, 1921, thereof, and make our appearance in said cause at this term of Court in same manner and for all purposes, as if we had been duly cited for the full length of time required by law to answer herein."

The petition in that suit recites the execution of the deed, its record, etc.; that J. B. B., Sr., paid no consideration for the deed; that the deed and possession of the lands were delivered to him and he accepted the deed and went into possession of the lands, subject to all the conditions, limitations, etc., in the deed, and subject to the provisions thereof in favor of plaintiff and J. H. B. and the survivor of them, relative to reversion of title, one of the conditions being "that he should pay all lawful tax assessments of every kind to which said lands and premises might be subject"; that he had wholly made default in that condition in that he "has failed and refused, and still fails and refuses, and continues to still fail and refuse" to pay the state and county taxes on the property for the year 1920, which thereby became delinquent February 1, 1921, whereupon a penalty attached, and the amount of such taxes, which constitute a lien upon the land, was increased; that suit was being threatened to recover these taxes with foreclosure of the tax lien; that plaintiff will be forced to pay these taxes in order to prevent their collection by sale of the land; that J. B. B., Sr., "has not only failed and refused to pay said taxes, or any part thereof, but has declared and announced his intention and has the intention, to pay no part of said lawful taxes so assessed against any of said land, or that may be assessed against said land in future, and threatens to abandon, and now has the intention of abandoning said lands"; that by reason of these facts the life estate in these lands by J. B. B., Sr., has ceased, all his interest therein has been forfeited, and revested in plaintiff alone (J. H. B. having died in 1915 prior to said default); that while J. B. B. Sr., "is now married, and has been for a long time, he has no children and that, therefore, no potential right, title or interest in remainder, exists, in any person whomsoever."

Judgment was rendered March 15, 1921, cancelling the deed and all interests created thereby in the land, and reinvesting the fee title therein in the plaintiff. The judgment recitals are in conformity with the allegations of the petition. At the time the suit was filed all the other eight children of J. H. B. and plaintiff were living, several of whom had living children; none of whom was made party to the suit.

May 2, 1921, Ellen E. Bryson executed a trust deed upon the property to secure a loan of $30,000, due May 1, 1928; and on July 15, 1921, she conveyed the property to J. B. B., Sr., for the recited consideration of $10 paid, and the assumption and agreement to pay the $30,000 loan.

The instant suit was filed May 26, 1945, about seven months after J. B. B., Jr., became of age. All the defendants, except J. B. B., Sr., are holders of record title or liens deraigned from J. B. B., Sr., subsequently to the conveyance to him by his mother.

The petition contains three counts which present substantially the following contentions:

First Count: The Runnels County judgment was not binding upon J. B. B., Jr., or other contingent remaindermen, and had the effect only of divesting J. B. B., Sr.'s, life estate and vesting it in Mrs. Ellen Bryson. Therefore, grantees under J. B. B., Sr., acquired only his life estate subject to the remainders created by the 1910 deed.

Second Count: The 1910 deed, its acceptance and possession thereunder by J. B. B., Sr., imposed upon him the legal duty to the remaindermen to pay the taxes and prevent any forfeiture of the remainder. Therefore, even though there was an effective forfeiture and revesting of the fee simple title in Ellen Bryson, the reconveyance in fee by her to him inured to the benefit of the remaindermen and had the legal effect of vesting in him only a life estate, and "the remainder estate immediately revested and reattached thereto as fully as though said conveyance had specifically so provided."

Third Count: The refusal to pay the taxes and forfeiture suit was a fraudulent scheme to divest the remaindermen of their title and vest in J. B. B., Sr., the fee simple title to the land; of which fraud those claiming under J. B. B., Sr., had actual and constructive notice.

We have reached the conclusion that the contention presented by the second count should be sustained; which conclusion renders unnecessary a consideration of the several contentions and countercontentions of the respective parties relating to the first and third counts. For our purposes in this regard it is assumed that the entire fee simple title vested in Ellen Bryson by virtue of the default of J. B. B., Sr., and the Runnels County judgment.

Appellees' countercontentions pertinent to the second count are in substance these:

1. The conditions in the 1910 deed (payment of taxes, etc., by J. B. B., Sr.) were conditions precedent to the vesting of any title thereunder whether for life or in remainder, and upon default therein no title vested or could ever vest under the deed.

2. Neither under the terms of the deed nor otherwise was any legal obligation imposed upon J. B. B., Sr., to protect the interest of remaindermen from forfeiture. The only consequence to him of his failure to fulfill the conditions was forfeiture of his life estate. He was therefore free, from whatever cause or motive, to comply or not with the conditions; and thereafter to acquire the fee simple title to the property, divested of every right of remaindermen under the 1910 deed.

Additionally, appellees contend that the remainders attempted to be created by the deed were void as being in contravention of the statute against perpetuities. This contention will be considered later.

It would not be profitable to burden this opinion with an extended citation or discussion of the many cases and standard texts bearing upon the construction of the varied language of different deeds as regards the question whether they...