Davis v. Davis

• Decision Date: 24 November 1943
• Docket Number: No. 8142.,8142.
• Citation: 175 S.W.2d 226
• Parties: DAVIS v. DAVIS et al.
• Court: Texas Supreme Court

175 S.W.2d 226

DAVIS v. DAVIS et al.

No. 8142.

Supreme Court of Texas.

November 24, 1943.

Error from Court of Civil Appeals of Eighth Supreme Judicial District.

Suit by Ira Davis, as trustee and next friend of Edward Rue Davis, and another against B. Lizzie Davis, to recover an undivided half interest in certain tract of land. Judgment for defendant was reversed by the Court of Civil Appeals and the cause remanded, and defendant brings error.

Judgment of Court of Civil Appeals reversed and judgment of District Court affirmed.

Upton, Upton & Baker, of San Angelo, and W. C. McDonald and G. S. Arnold, both of Robert Lee, for plaintiff in error.

W. A. Wright, C. H. Tupper, D. I. Durham, and R. G. Hughes, all of San Angelo, for defendant in error.

SMEDLEY, Commissioner.

The subject matter of the controversy herein is an undivided one-half interest in three tracts of land in Coke County. Respondents Williams, as executor of the estate of Jeff D. Davis, deceased, and Ira Davis, as trustee and next friend of Edward Rue Davis, to whom Jeff D. Davis conveyed and devised an undivided one-half interest in the three tracts of land, sued petitioner Mrs. B. Lizzie Davis, the surviving wife of Jeff D. Davis, for the title and possession of the one-half interest. The district court, after trial before a jury, sustained Mrs. Davis' motion to strike from the record the testimony of the witness Judge W. A. Wright, and her motion to withdraw the case from the jury and for judgment in her favor and rendered judgment that respondents take nothing by their suit. The Court of Civil Appeals reversed the judgment of the district court and remanded the cause, holding that the stricken testimony was admissible as an aid in the construction of the three deeds executed January 2, 1935. The opinion of the Court of Civil Appeals has not been published.

Prior to 1903 the three tracts of land were the community property of Jeff D. Davis and his wife, B. Lizzie Davis. On February 14, 1903, Jeff D. Davis conveyed the three tracts of land, the entire interests in them, to B. Lizzie Davis. The deed recites a consideration of $1,040 advanced in cash by Mrs. Davis to her husband out of her own separate estate, and further that the land is conveyed to her "to and for her separate, individual use and benefit". On January 2, 1935, three deeds were executed. One of these is by B. Lizzie Davis and Jeff D. Davis to Elizabeth Passow. It conveys an undivided one-half interest in the three tracts of land and recites a cash consideration of $10 paid, and the further consideration that the said undivided one-half interest shall be conveyed by Mrs. Passow and her husband to Jeff D. Davis as his separate estate. The second of the three deeds was executed by Elizabeth Passow and her husband and conveys an undivided one-half interest in the three tracts of land to Jeff B. Davis, "as his separate estate". The deed recites a cash consideration of $10 and the "further consideration of carrying into effect the will of B. Lizzie Davis as expressed in her deed to Elizabeth Passow of even date herewith". The third of the three deeds executed January 2, 1935, is a warranty deed from Jeff D. Davis to B. Lizzie Davis. It contains the following recitals:

"That Whereas, to-wit, on the 27th day of July, 1905, the undersigned Jeff D. Davis, did convey to his wife, B. Lizzie Davis, the following described lands situated in Coke County, Texas, to-wit: (Describing the three tracts of land) "And, Whereas, the said B. Lizzie Davis has had conveyed to me an undivided one-half interest in and to said lands above described, as my separate individual property;

"Now Therefore, I do, by these presents grant, bargain and sell unto the said B. Lizzie Davis, and do hereby give to her in presenti an undivided one-half interest in and to the lands hereinabove described."

The substance of the testimony of Judge W. A. Wright, admitted over petitioner's objection and later stricken on her motion, is as follows: Jeff D. Davis, his wife, B. Lizzie Davis, and Elizabeth Passow came to his office and asked him "to prepare some deeds." Jeff Davis said "he wanted to divide the land by two deeds between him and his wife". "Jeff Davis and Mrs. Davis wanted to divide the property, and they insisted and Mrs. Passow said that a wife could not convey to her husband, and to please them I wrote it that way." He identified the three deeds dated January 2, 1935, and testified that they were prepared at the same time and executed and delivered the same day. Before the deeds were prepared they told him that Jeff Davis had killed a man and was tried for murder; that some of the heirs of the dead man were talking about suing them; that the deed of 1903 from Jeff Davis to Mrs. Davis was executed "so that if they brought suit they could not find anything to get the money out of, and it was not really intended to convey the property to Mrs. Davis, and now they wanted to divide the property half and half as it ought to be". The deed of January 2, 1935, from Jeff Davis to his wife was prepared and executed "because their statements to me were an acknowledgment that title had never passed and by these deeds one half was conveyed to Jeff Davis and the other half to Mrs. Davis". Jeff Davis and Mrs. Davis were present when it was stated with reference to the deed from Jeff Davis to his wife that he was conveying only his one-half interest. "The reason the deeds were made in a round-about way; Mrs. Passow said that was the way they wanted it — they were better lawyers than I was — and I made it that way." The agreement made was "that I would write a deed to the Passows and they would convey to Jeff Davis a half interest in the land and that Jeff Davis was to write a deed to his wife and convey the other half".

Petitioner's motion alleged as grounds for striking the testimony that it is inadmissible as to the deed of 1903 because that deed is contractual and the recitations in it are plain and unambiguous and it cannot be altered, varied or contradicted by oral testimony; and that the testimony is inadmissible as to the three deeds of January 2, 1935, because there is no ambiguity in any of the deeds and testimony is inadmissible to vary, alter or contradict the provisions of the deeds or to show a different intent from that expressed therein, and that the legal effect of the deeds cannot be changed or altered by parol evidence.

The Court of Civil Appeals correctly held that by the deed from her husband executed in 1903 Mrs. B. Lizzie Davis acquired title to the entire interest in the three tracts of land as her separate property and that the parol evidence, contradictory of the stipulations in the deed as to the character of the estate conveyed and offered to prove that the deed was not intended to convey the land to Mrs. Davis, was inadmissible. Kahn v. Kahn, 94 Tex. 114, 58 S.W. 825; Kahle v. Stone, 95 Tex. 106, 111, 65 S.W. 623; McKivett v. McKivett, 123 Tex. 298, 70 S.W.2d 694.

Respondents offered in evidence, in proof of title, the deed from Jeff D. Davis to Mrs. Davis executed February 14, 1903, the deed dated January 2, 1935, from Mrs. Davis, joined by her husband, conveying an undivided one-half interest in the three tracts of land to Mrs. Passow, and the deed dated January 2, 1935, by Mrs. Passow and her husband to Jeff Davis conveying to him as his separate estate an undivided one-half interest in the three tracts. These deeds proved ownership of an undivided one-half interest in the land by Mrs. Davis as her separate estate and ownership of the other undivided one-half interest by Jeff Davis as his separate estate. Respondents did not offer the third deed of January 2, 1935, that by which Jeff D. Davis conveyed to Mrs. Davis an undivided one-half interest in the land. After petit...