Chandler v. Kountze

• Decision Date: 01 June 1939
• Docket Number: No. 10785.,10785.
• Parties: CHANDLER v. KOUNTZE et al.
• Court: Texas Court of Appeals

130 S.W.2d 327

CHANDLER v. KOUNTZE et al.

No. 10785.

Court of Civil Appeals of Texas. Galveston.

June 1, 1939

Rehearing Denied June 28, 1939.

Appeal from District Court, Wharton County; M. S. Munson, Judge.

Suit by Charles T. Kountze and another against W. E. Chandler to collect amount due on four vendor's lien notes, and to foreclose the vendor's lien, wherein the defendant filed a cross-action to recover money paid by him. Judgment for plaintiffs and defendant appeals.

Affirmed.

Sidney P. Chandler, of Corpus Christi, for appellant.

Geo. P. Willis, Jr., of El Campo, and C. F. Herring, Edward Clark, and Everett L. Looney, all of Austin, for appellees.

MONTEITH, Chief Justice.

This is a suit brought by appellees, Charles T. Kountze and Denman Kountze, against appellant, W. E. Chandler, to collect the amount due on four vendor's lien notes, and to foreclose the vendor's lien on 14.25 acres of land out of E. T. R. R. Co. Survey, Section 10, in Wharton County, Texas.

Appellant answered by general demurrer and general denial, and by special plea alleged that at the time of their conveyance to him appellees did not own the property in question. By cross-action he sought to recover the amount of money paid appellees by him, and in the alternative prayed that he be awarded a one-half interest in said land upon payment by him of one-half of the original purchase price. He also alleged an agreement with appellees to release a one-acre tract out of said land, and sought damages in the sum of $2500 for their alleged failure to carry out said agreement.

The case was tried before the court without the intervention of a jury. Based on findings of fact by the trial court, which were filed, judgment was rendered against appellant and in favor of appellees in the sum of $2519.60, with foreclosure of the vendor's lien and sale of the land under execution.

By deed dated January 3, 1908, the Texas Land & Cattle Company conveyed to Charles T. Kountze and Luther L. Kountze, "as joint tenants, with all the rights of such tenants at common law, including the right of survivorship", various tracts of land in Wharton County, Texas, including: "The fractional parts of survey No. 10, E. T. R. R. Co., lying east and west of the town of South El Campo, patented to John B. Murford on June 17, 1884, by virtue of Certificate No. 30, patent No. 21, Vol. No. 4, containing 58 acres of land, more or less, and being all of said Section 10 owned by vendor." On the same day the Texas Land & Cattle Company executed a "blanket deed", which recited that in case of omission, misdescription, and insufficient description in the said deed dated 1-3-08, that said latter deed conveyed to Charles T. Kountze and Luther L. Kountze, "as joint tenants, with all rights of such tenants at common law, including the right of survivorship, all real property of every nature and description and wheresoever situated within the State of Texas, belonging to or standing in the name of said Texas Land & Cattle Company."

Luther L. Kountze died on April 9, 1925, testate, leaving surviving him his wife, Alice Anderson Kountze, his son, Harkness Kountze, and a daughter, Adeline Kountze Millard. In his will, which was duly admitted to probate, his wife, Alice Anderson Kountze, was appointed executrix.

After the death of Luther L. Kountze, Charles T. Kountze, by deed dated November 24, 1925, conveyed to Charles T. Kountze and Denman Kountze in consideration of "One Dollar and other valuable considerations in hand paid * * * `as joint tenants, with all rights of such tenants in common law, including the right of survivorship'" various tracts of land, including "Fractional parts of Survey 10, E. T. R. R. Co., lying west of the town of South El Campo, patented to John B. Murford, on June 17, 1884, by virtue of Certificate No. 30, Patent No. 21, Vol. 4, Abstract No. 523, containing 23.18 acres, more or less."

By a "blanket deed" dated September 14, 1936, Charles T. Kountze conveyed to himself and Denman Kountze, as joint tenants, with right of survivorship, all the real estate in the State of Texas which the Texas Land & Cattle Company sold to Charles T. Kountze and Luther L. Kountze on the 3rd day of January, 1908. This instrument was executed "to take care of and cover mistakes, misdescriptions or insufficient descriptions appearing in the deed executed by him to himself and Denman Kountze dated November 21, 1925.

By deed dated January 30, 1929, Charles T. Kountze and Denman Kountze conveyed to appellant 14.26 acres of land in Wharton County, Texas, out of the southwest corner of Survey No. 10, E. T. R. R. Co., patented to John Murford and described by field notes, for a consideration of $635 cash and the execution by appellant of his five vendor's lien notes for the sum of $373 each, payable to Charles T. Kountze and Denman Kountze in 1, 2, 3, 4, and 5 years, respectively. The first of said notes was paid by appellant. Thereafter, by agreement dated January 19, 1935, appellant and appellees entered into an agreement extending the date of payment of said four notes to January 30, 1936.

It is the contention of appellant that Article 2580, Revised Statutes of 1925, which abolished joint tenancy and survivorship as they existed at common law, prohibits the creation of an estate by contract by the parties concerned, by the terms of which on the death of a joint owner before severance, his interest in said joint estate shall pass to and vest in the surviving co-tenant; that, on the death of Luther L. Kountze, his undivided one-half interest in the property acquired in the two deeds from the Texas Land & Cattle Company, dated January 3, 1908, passed to his heirs and legal representatives and not to Charles T. Kountze, the survivor, as provided in said deeds, and that Charles T. Kountze and Denman Kountze conveyed to appellant only their one-half undivided interest in said 14.26 acres of land.

Article 2580 of the Revised Statutes reads as follows: "Art. 2580. (2471) (1698) (1655) Jus accrescendi abolished.—Where two or more persons hold an estate, real, personal or mixed, jointly, and one joint owner dies before severance, his interest in said joint estate shall not survive to the remaining joint owner or joint owners, but shall descend to, and be vested in, the heirs or legal representatives of such deceased joint owner in the same manner as if his interest had been severed and ascertained." Act March 18, 1848, p. 129; P.D. 3429; G. L. Vol. 3, p. 129.

While the wording of Article 2580 indicates a legislative intent to abolish the relationship of joint tenancy where it would otherwise have been created by law, including the common-law doctrine of survivorship, there is nothing in the subject matter of the act which would, in our opinion, justify the presumption that the legislature intended to thereby prevent the parties to a contract, a will, or a deed of conveyance, from providing among themselves that the property in question should pass to and vest in the survivor as at common law.

We have been cited no Texas cases involving an interpretation of Article 2580 and the relationship of joint tenancy and its incidental doctrine of survivorship. We have, however, been referred to the following cases from other states interpreting the provisions of acts similar to Article 2580.

The courts of Kansas, which has by statute R.S. 22—132 abolished joint tenancy and survivorship as they existed at common law, do not hold unlawful a contractual arrangement which conferred equivalent legal rights and obligations among the parties concerned. Malone v. Sullivan & Williams, 136 Kan. 193, 14 P.2d 647, 85 A.L.R. 275.

In the case of Withers v. Barnes, 95 Kan. 798, 149 P. 691, Ann.Cas.1917B, 55, the court, in construing the Kansas statute, held that it merely put an end to joint tenancy and survivorship as a matter of law, and did not undertake to forbid joint tenancy and survivorship by negotiation or contract of the parties concerned.

In the case of Equitable Loan & Security Co. v. Waring, 117 Ga. 599, 44 S.E. 320, 62 L.R.A. 93, 97 Am.St.Rep. 177, the Supreme Court of Georgia held that joint tenancy, with its incident of survivorship as it existed at common law, was abolished by Civil Code of 1895, section 3142, and that while survivorship was not favored by the law of that state and would never arise by operation of law, it was not prohibited, and when a contract provided for it in express terms or by necessary implication the law would allow the contract to be enforced.

In the case of Ball v. Deas, 2 Strob.Eq., S.C., 24, 49 Am.Dec. 651, the Court of Appeals in Equity of South Carolina held, that where by the terms of a will an estate in joint tenancy as at common law is created, and one or more of the tenants die in the lifetime of the testator, the survivor takes all of the estate as at common law.

In the case of Lober v. Dorgan, 215 Mich. 62, 183 N.W. 942, 943, the Supreme Court of the State of Michigan said:

"It seems to me the question is open as to what force we will give the words `with sole right to the survivor.' In the Ludwig Case [Ludwig v. Bruner, 203 Mich. 556, 169 N.W. 890] we said we would not, as a matter of law, infer from the words `joint tenants' the ordinary incident of survivorship, but that is not the question here. Here it is a question of contract. The parties themselves have provided for survivorship by agreement. The parties having so contracted, is there any valid reason why we should refuse to enforce their agreement? Our statute does not prohibit such a contract. There is nothing in the agreement which is immoral or against the public good. If this be so, why should a court of last resort arbitrarily say to the citizens of its state: `You may not contract that the survivor of two grantees shall succeed to the title of personal property.'

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"In many states joint tenancies with their common-law incidents have been abolished by legislation,...