Culmell v. Borroum

• Decision Date: 29 April 1896
• Citation: 35 S.W. 942
• Parties: CULMELL et al. v. BORROUM et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

35 S.W. 942

CULMELL et al. v. BORROUM et al.¹

Court of Civil Appeals of Texas.

April 29, 1896.

Appeal from district court, Bee county; S. F. Grimes, Judge.

Action by Emma Culmell and another against Jesse T. Borroum and others. Judgment for defendants, and plaintiffs appeal. Reversed.

A. J. Parker and Graves & Wilson, for appellants. Beasley & Flournoy, for appellees.

FLY, J.

This appeal is the result of a judgment against appellants in a suit instituted by them in the district court of Bee county, against appellees, to recover an undivided interest of 320 acres out of a 1,280-acre survey patented to Charles Baker, and rent from the same for two years preceding the institution of the suit. Appellees answered with a general demurrer, general denial, and plea of not guilty. The court tried the cause, without a jury, and rendered judgment for appellees. It was admitted by all the parties that military warrant No. 2,976 was issued for 1,280 acres of land, to Charles Baker, in April, 1838; that it was located on the land in controversy on June 4, 1839; and that a patent was obtained in the name of Charles Baker, in October, 1846. On April 30, 1838, Charles Baker executed and delivered to William W. Gant a transfer of the certificate above described, as follows: "Republic of Texas, Harrisburg County. Know all men by these presents, that I, Charles Baker, for and in consideration of the sum of two hundred dollars to me in hand paid, the receipt whereof is hereby acknowledged, have this day bargained, sold, alienated, and conveyed unto William W. Gant all my right, title, claim, and interest that I have in and to a certain military bounty warrant, for twelve hundred and eighty acres of land; number of warrant 2,976, and issued, etc., bearing date April 21st, 1838; and I do hereby transfer and invest in the said, his heirs and assigns, all the rights and privileges that are given me by the said warrant, and also authorize him or his legal representatives to locate said warrant upon any lands subject to location, and, when located, to enter upon and use and occupy the same at will, or to sell, alienate, or donate the same; and I furthermore bind myself, my heirs and assigns, and defend the right hereby conveyed, against all sales, frauds, or incumbrances, of what nature soever. In testimony whereof, I hereto affix my hand and seal, this, the 30th day of April, 1838, in the presence of the subscribing witnesses." This instrument was properly signed and acknowledged, and was recorded in Goliad county December, 1853, where the land was situated at that time, and in Bee county July 14, 1876. Appellant Mrs. Emma Culmell had a regular chain of title from Gant to the 320 acres of land sued for. Appellees also claimed from Charles Baker, through a deed made by him to J. H. Johnston, as follows: "State of Texas, County of Red River. Know all men by these presents, that I, Charles Baker, of ____ county, have this day, for the consideration of four hundred dollars to me paid by James H. Johnston, of Red River county, the receipt whereof is hereby acknowledged, have bargained and sold unto the said James H. Johnston all my right, title, and interest in and to one certain tract of land located by my bounty land warrant, granted to me for 1,280 acres of land, and as follows: `In Goliad county, on the waters of the Medio, about 28 miles above the crossing of the road from Goliad to Laredo, beginning [giving field notes as contained in patent];' to have and to hold unto him, the said Johnston, his heirs and assigns, forever, and hereby bind my heirs, executors, and administrators to forever warrant the title of said land to the said Johnston, his heirs and assigns, forever, against all persons claiming the same legally in any way whatever. Given under my hand and seal, this November 29, 1846." This deed was acknowledged and recorded in Bee county May 23, 1877. Appellees had a regular chain of title from Johnston. Appellants have never been in possession of the land or paid taxes on the same. Appellees had been in actual adverse, continuous possession of the land, claiming the same, and paying taxes on the same, for nine or ten years. Emma Culmell and her husband, John F. Culmell, appellants, were married in 1876, and had been continuously married to the time this suit was instituted. The land was the separate property of Mrs. Culmell.

The first assignment presents as error the action of the trial court in holding that the sale of the certificate before location conveyed only an equitable, and not a legal, title. The transfer of the certificate was made by Baker to Gant before the location; and, after the patent was granted, Baker quitclaimed his title to the land to Johnston. The sale of the certificate to Gant transferred to him the equitable title to the land that was afterwards located by virtue of it; and when the patent was afterwards issued in the name of Charles Baker, to whom the certificate was granted, and who sold it to Gant, the legal title was vested in Baker, and his conveyance to Johnston, after the patent was granted, placed the legal title to the land in him. Keyes v. Railroad Co., 50 Tex. 174; Hermann v. Reynolds, 52 Tex. 391; Goode v. Jasper, 71 Tex. 51, 9 S. W. 132; Abernathy v. Stone, 81 Tex. 430, 16 S. W. 1102. This would be true whether the transfer of the certificate took place before or after the land was located. Simpson v. Chapman, 45 Tex. 566; Hearne v. Gillett, 62 Tex. 25; Lewis v. Johnson, 68 Tex. 448, 4 S. W. 644; Thompson v. Langdon, 87 Tex. 254, 28 S. W. 931; Hume v. Ware, 87 Tex. 380, 28 S. W. 935. A distinction is drawn between the transfer of the land certificate and a conveyance of the land itself after the certificate has been located; the transfer in the first instance giving only an equitable title, and the conveyance of land after location giving such title that it will at once become a legal title if the patent is issued in the name of the original grantee. Satterwhite v. Rosser, 61 Tex. 173; Adams v. House, 61 Tex. 640; Abernathy v. Stone, 81 Tex. 430, 16 S. W. 1102.

Appellees claimed, and in order to support their claim should have established, that Johnston was a bona fide purchaser of the land in controversy, without notice of the transfer of the certificate to Gant by Charles Baker. To maintain the character of a bona fide purchaser without notice for Johnston, it was essential for appellees to show that he received a deed to the land itself, and not a mere chance of title; for it is well settled that a party receiving a quitclaim deed to land cannot be deemed a bona fide purchaser of any greater interest therein than his grantor had at the time of the execution of the deed. Harrison v. Boring, 44 Tex. 256; Taylor v. Harrison, 47 Tex. 460; Richardson v. Levi, 67 Tex 359, 3 S. W. 444; Laughlin v. Tips, 8 Tex. Civ. App. 649, 28 S. W. 551. Much has been written on what it takes to constitute an instrument a conveyance of the land itself, or merely a release of such title, however imperfect, as may be lodged in the grantor; but the matter it would seem, resolves itself into the task of arriving at the intention of the parties. It has been held in this state that "while a deed may be so plain in its terms as to require the court to construe it to be a quitclaim in one case, or an absolute conveyance of the land in another case, still its wording may be such as to raise a question whether it is the one or the other, and in that event the circumstances under which it is made and purposes for which it is made may be considered to fix its true character as being one or the other." Harrison v. Boring, 44 Tex. 256; Taylor v. Harrison, 47 Tex. 460. If the deed, no matter how expressed, shows on the part of Baker an intention to convey the land itself to Johnston, then it was not a quitclaim, and it would form the basis for the claim of innocent purchasers without notice; but, if it conveyed only the title that Baker may have had in the land, Johnston could not claim such character, but he is charged with notice of all the risks attending such a purchase. The deed from Baker to Johnston conveyed "all my right, title, and interest in and to one certain tract of land," which is followed by a description of the land, and the habendum clause, "To have and to hold unto him, the said Johnston, his heirs and assigns, forever," which evidently refers back to what was conveyed, namely, "right, title, and interest." The warranty is of the "title of said land." The warranty clause, however, forms no part of the conveyance, but is looked upon as a separate contract between the grantor and grantee. The use of the words "bargain and sell" do not alter the character of the instrument. Richardson v. Levi, 67 Tex. 360, 3 S. W. 444; Threadgill v. Bickerstaff, 87 Tex. 520, 29 S. W. 757.

We conclude, therefore, that the deed from Baker to Johnston was a quitclaim, and not an absolute conveyance of the land. We have seen no case in which instruments containing similar terms to those in the deed in question have been construed to be other than quitclaim deeds. In all of the authorities cited by appellees, there were words in the instruments held to be absolute conveyances that indicated an intention to convey the land itself. There are no words in the deed of Baker to Johnston that would indicate that his intention was to convey anything but a mere chance of title.

It is urged by appellees that the demand of appellants is stale, but we are of the opinion that their contention cannot be sustained. The property being the separate estate of Mrs. Culmell, and the deed of Baker to Johnston not...