D. T. Carroll Corp. v. Carroll

• Decision Date: 18 February 1953
• Docket Number: No. 12481,12481
• Citation: 256 S.W.2d 429
• Parties: D. T. CARROLL CORP. v. CARROLL et ux.
• Court: Texas Court of Appeals

Page 429

256 S.W.2d 429

D. T. CARROLL CORP. v. CARROLL et ux.

No. 12481.

Court of Civil Appeals of Texas, San Antonio.

Feb. 18, 1953.

Rehearing Denied March 25, 1953.

Cutrer & Cook, Houston, Suttle & Kessler, Uvalde, for appellant.

Morriss, Morriss, Boatwright & Lewis, San Antonio, C. H. Gilmer, Rocksprings, Ross Powers, Leakey, for appellee.

W. O. MURRAY, Chief Justice.

D. T. Carroll Corporation instituted this trespass to try title suit in the District Court of Real County against D. T. Carroll and his wife, Agnes T. Carroll, seeking to recover the title and possession of eight sections of land situated in that county. The trial was to a jury and upon the jury's answers to the special issues submitted, the trial court rendered judgment denying plaintiff any recovery, and awarding the title and possession of the land to defendants, upon the payment by them to plaintiff of the sum of $17,821.91, from which judgment D. T. Carroll Corporation has prosecuted this appeal.

Appellant, by its first six points, presents the contention that the trial judge should have granted its motion for instructed verdict, and in any event should have granted judgment in its favor on its motion for judgment notwithstanding the verdict. The eight sections of land which are the subject matter of this lawsuit were purchased by Mr. and Mrs. Carroll during the year 1920, and they have lived upon the property and occupied it as their homestead ever since. In the year 1927, D. T. Carroll became acquainted with one W. H. Steigerwald. Thereafter they became friends, and on numerous occasions Steigerwald, and on some occasions accompanied by his friends, visited the Carroll Ranch and there hunted and fished, the Carroll Ranch being described as an ideal place for hunting and fishing. During the depression of 1931-1932 the Carrolls began to have financial difficulties, as they oweed considerable money upon their ranch, and they suggested to W. H. Steigerwald that he and some of his friends might get together and assist them in overcoming their financial difficulties. There was much correspondence back and forth between these parties concerning this matter, until ultimately on July 17, 1937, D. T. Carroll and wife, Agnes T. Carroll, went to Houston, Texas, and there signed an agreement, along with seven other persons, including W. H. Steigerwald, wherein it was agreed that a corporation would be formed for the purpose of holding certain lands situated in Real County, Texas. On the same day the Carrolls signed what purported to be a warranty deed, attempting to convey land to the D. T. Carroll Corporation, yet to be organized, but this purported deed contained no description of the land to be conveyed. Evidence was conflicting as to whether or not the description was in the deed at the time it was signed, but the matter was submitted to the jury, and the jury found that there was no description of the property in the deed at the time it was signed and delivered by the Carrolls. The corporation was later formed and D. T. Carroll, one of the organizers, was given a share in the corporation, but was not required to pay money into the corporation as were the other organizers. An agreement was executed at the time the alleged deed was signed, providing that D. T. Carroll was to have the privilege of grazing cattle on the land to be held, but no sheep and goats. The other organizers of the corporation were to have the fishing and hunting privileges on the land. It was also agreed that $1,000 was to be spent on improving the house in which Mr. and Mrs. Carroll lived. D. T. Carroll was to have the grazing privileges on the land for a period of seven years for the nominal sum of $1 per year. He was to have the privilege of renewing this lease for three more years by paying annually an amount for rental 'equivalent to the amount necessary to discharge and fully pay all Federal Land Bank and Land Bank Commissioner loan payments and taxes that accrue on the said property during that period.' At the lapse of this three-year period D. T. Carroll was to have the option of leasing the land for an additional twenty years at the prevailing rentals of the surrounding country.

For a number of years thereafter Carroll carried on correspondence with W. H. Steigerwald, as president of the D. T. Carroll Corporation, and C. E. Rodecape Secretary-Treasurer. In these letters he seemed to recognize the fact that he was leasing the ranch from the corporation and that it was entitled to certain control thereof. He wrote to the officers of the corporation about such matters as building fences, cutting cedar and allowing roads through the ranch. The corporation rendered the property for taxes during all of this period, and Carroll ceased to so render the property. Carroll contended that he was defrauded into signing the agreement and the alleged deed, in that he was assured he would never lose his land if he went into the corporation. He also contended that the alleged deed was intended as a mortgage to secure the other incorporators in whatever sums of money they may pay out in meeting the indebtedness against the ranch and in paying taxes thereon, and if and when he reimbursed them, for this money he would again become the full owner of the property. The jury made findings favorable to the Carrolls on both the fraud issue and the mortgage issue.

We overrule appellant's contention that the trial court erred in not granting its motion for instructed verdict and in not granting its motion for judgment nowithstanding the verdict. In determining whether or not the instructed verdict should have been granted we must consider only that evidence which is favorable to the Carrolls and disregard all of the evidence which is unfavorable to them, and indulge in every legitimate conclusion and reasonable intendment therefrom in their favor. In re King's Estate (King v. King), Tex.Sup., 244 S.W.2d 660; Roswurm v. Sinclair Prairie Oil Co., Tex.Civ.App., 181 S.W.2d 736; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114; Greer v. Newton, Tex.Civ.App., 245 S.W.2d 299; Cole v. Waite, Tex.Civ.App., 242 S.W.2d 936; Capital Steel & Iron Co. v. Henderson, Tex.Civ.App., 239 S.W.2d 851; H. L. Butler & Son v. Walpole, Tex.Civ.App., 239 S.W.2d 653. When this is done it is plain that there was at least one issue which should have been submitted to the jury, that of whether or not the description was in the deed at the time it was signed and delivered by the Carrolls. This issue was submitted to the jury and, upon sufficient evidence, was found by the jury in favor of appellees. This finding of the jury is not challenged by appellant as being unsupported by the evidence or as being contrary to the overwhelming weight of the preponderance of the evidence. Under such circumstances we must accept as an established fact that there was no description of the property in the deed at the time it was signed and delivered. It will be borne in mind that appellant was suing in trespass to try title. The Carrolls were the common source of title in the suit and the burden was upon appellant to show by a preponderance of the evidence that the Carrolls had conveyed to it the eight sections of land involved in this lawsuit. If the deed contained no description of the land by which it could be located at the time it was signed by the Carrolls, it was a nullity and failed to meet the requirements of the statutes. Article 1288, Vernon's Ann.Civ.Stats., requires that all conveyances of real property be in writing and subscribed and delivered by the party disposing of the property, or by his agent thereunto authorized in writing, and Article 3995, Subdivision 4, Vernon's Ann.Civ.Stats., provides that no suit can be maintained for the sale of real estate unless some memorandum thereof shall be in writing and signed by the party to be charged. A deed which does not described the land to be conveyed with sufficient certainty that it may be located on the ground is a nullity and can be given no effect. Extrinsic evidence may be used to supplement the description contained in the deed, but the key to the extrinsic evidence must be found within the four corners of the deed, and any evidence not consistent with the nucleus of the description cannot be received in aid of the description. Davis v. Kirby Lumber Corp., Tex.Civ.App., 158 S.W.2d 888; Farmers Royalty Holding Co. v. Jeffus, Tex.Civ.App., 94 S.W.2d 255; Tarrant County v. McLemore, Tex.Sup., 8 S.W. 94; Stekoll Petroleum Company v. Hamilton, Tex.Sup., 255 S.W.2d 187; Small v. Morris, Tex.Sup., 255 S.W.2d 174.

It is true that this deed was recorded in the real estate records of Real County on September 7, 1937, and at that time the description had been placed in the deed, but there is no evidence that the Carrolls ever authorized anyone to insert this description over their signatures. However, if the evidence did raise the issue as to the authority to insert the description in the deed, then this was a fact question...