Davis v. First Nat. Bank of Waco

• Decision Date: 28 November 1940
• Docket Number: No. 2195.,2195.
• Citation: 145 S.W.2d 707
• Parties: DAVIS et al. v. FIRST NAT. BANK OF WACO.
• Court: Texas Court of Appeals

145 S.W.2d 707

DAVIS et al. v. FIRST NAT. BANK OF WACO.

No. 2195.

Court of Civil Appeals of Texas. Waco.

November 28, 1940.

Opinion after Remittitur December 5, 1940.

Rehearing Denied December 19, 1940.

Error to District Court, Seventy-Fourth District, McLennan County; Giles P. Lester, Judge.

Suit in trespass to try title by the First National Bank of Waco, Texas, against Irma Powers Davis and her husband, wherein defendants filed a cross-action. To review an adverse judgment, defendants bring error.

Reformed and, as reformed, affirmed.

Raymond E. Buck, of Fort Worth, and Victor C. McCrea, of Henderson, for plaintiffs in error.

Sleeper, Boynton & Kendall, of Waco, for defendant in error.

TIREY, Justice.

This is a suit in trespass to try title, brought by The First National Bank of Waco against Irma Powers Davis and her husband, Thurman Davis, to recover title to and possession of two tracts of land in the city of Waco, Texas. Defendants answered in due order of pleading, and, in addition thereto, filed cross-action against plaintiff in trespass to try title for title and possession of said property. Plaintiff answered the cross-action, and, by way of alternative plea, asked that in the event the defendant should prevail, the court recognize and foreclose its lien for taxes paid in good faith and belief of ownership, subsequent to execution and delivery of guardian's deed to it. The case was tried before the court without the intervention of a jury upon an agreed stipulation as to the evidence, subject to certain objections as to admissibility. The trial court awarded to the bank title to and possession of the north one-half of the first tract and the whole of the second tract. The defendants recovered of the bank the title and possession of the south one-half of the first tract. The court found that the bank had paid taxes in good faith and under color of title and claim to ownership of the real estate decreed to defendants and established as a charge and lien (the taxes so paid, less rents collected) against the property awarded to defendants, and further awarded to said bank a personal judgment against defendants, together with foreclosure of said lien. The defendants have appealed. The parties will be designated as in the trial court.

Anderson Powers and his wife, A. E. Powers, constitute the common source of title. The property involved was community property of their marriage. A. E. Powers died testate in 1899, leaving her husband and two children only, Laura Powers and Albert Powers, who were the sole beneficiaries under her will which was duly probated. Albert Powers, aforesaid, died intestate in 1906 and left surviving him his widow, Mrs. Lola Powers, and two children only, Albert R. Powers, a boy then 5½ years old, who died in October 1913, while still a minor, intestate and unmarried, and Irma Powers, 9 years old at her father's death, now the wife of Thurman Davis, one of the defendants in this suit. Anderson Powers, aforesaid, died testate in 1909, without having remarried, and his will was duly admitted to probate. He left surviving him one child only, Laura Powers, and two grandchildren only, Albert R. Powers and Irma Powers, aforesaid, children of his deceased son. It is admitted that Laura Powers took the fee to the property she received under the terms of her mother's will, but there is a controversy as to the title that Laura took under the will of her father.

That part of her father's will which is pertinent to the matter in question is as follows: "The remainder of my interest in said estate I give equally to my two children, Laura and Albert, they to have the use of it and the income from it during their natural lives but not to sell or dispose of it in any way, after which it will inure to their legal heirs."

In August, 1909, decree of partition was entered in suit in the 19th District Court of McLennan County, brought by Irma Powers (now Irma Powers Davis) and Albert R. Powers, minors, by next friend, against Laura Powers and Lola Powers. This decree, among other things, directed that said partition be made according to quality, quantity and value between the said parties in accordance with the decree, but specified that partition not be made between Mrs. Lola Powers and her minor children, but to partition the interest of Laura Powers from said widow and her two children, and report their action to the court. No issue is made or raised as to the division between the parties. The commissioners allotted to Laura Powers the property in litigation (and other property). The decree set apart to Laura Powers, in severalty, the share awarded to her, and with reference to the interest received under her father's will provided: "* * * And the possession of the other one-half undivided interest in and to the said real estate be and the same is hereby divested out of all of the said other parties to this cause, their heirs, executors, administrators or assigns and such possession and right be and the same is hereby vested in the said Laura Powers for and during her natural lifetime only under and by virtue of the terms of the will of her father, A. Powers, whereby all of the rights and income therefrom during her natural life are vested in her absolutely to dispose of as she desires and she is to have the exclusive use of the said property, real for and during her natural lifetime. After her death the right and title in and to an undivided one-half interest in and to all of said real property shall go to the legal heirs of the said Laura Powers absolutely." Laura Powers voluntarily made her appearance and waived citation and service in the above cause and it was done in this manner: The waiver was signed "Laura Powers, by Prendergast & Williamson, attorneys for said defendant." The validity of said decree of partition is in nowise attacked. It was stipulated that "Laura Powers was, from birth, afflicted both in body and mind, being epileptic, having one side paralyzed, and her mental capacity never at any time exceeded that of a child seven or eight years of age." (Counsel for both parties in their briefs have treated Laura Powers as a non compos mentis.) Laura Powers was adjudged a person of unsound mind in the Probate Court of McLennan County in March, 1915, and a guardian of her person and estate was appointed and the guardian qualified and acted until his death in October, 1928. Thereafter, another guardian was appointed and he qualified and continued to act until Laura Powers' death, which occurred on November 9, 1937.

In December, 1936, the guardian of Laura Powers, duly authorized thereunto by the Probate Court, executed and delivered a deed to the bank conveying the property involved in this law suit and other property not necessary to this discussion, said property constituting the bank's security, in satisfaction of the estate's indebtedness (approximately $30,000). It appears that the guardian and the bank believed the property was correctly described and the bank went into possession of the property immediately and retained possession continuously since the date of the deed, paying taxes on the property and exercising dominion and control over the same. The judgment entered by the trial court has been assailed mainly on three grounds: (1) That the description of each tract in question was insufficient to pass title; (2) that there was no evidence to sustain the award to the bank for taxes paid in good faith and foreclosure of tax lien against the property awarded to defendants; and (3) that Laura Powers took only a life estate under her father's will, as decreed in the partition, and therefore the title to that share received by her under said will must fail.

We think the third assignment presents the only serious question in this case, and, for that reason, we will discuss it first. As above stated, all parties have treated the decree of partition as a valid judgment and said decree of partition is a muniment of such title as the bank acquired by its mortgage and deed hereinbefore referred to. The first question that presents itself to us is whether Laura took a life estate only or an estate in fee under her father's will; and second, what effect, if any, was the decree of partition on the title that Laura acquired by virtue of her father's will.

The language in her father's will, which is controlling, is as follows: "The remainder of my interest in said estate I give equally to my two children, Laura and Albert, they to have the use of it and the income from it during their natural lives but not to sell or dispose of it in any way, after which it will inure to their legal heirs." We are of the opinion that the rule in Shelley's Case applies to the foregoing provision of the will and that under said rule, Laura took the fee to the title to the property which she received under her father's will. A concise statement of this rule is: "When a person takes an estate of freehold, legally or equitably, under a deed, will or other writing, and in the same instrument there is a limitation by way of remainder, either with or without the interposition of another estate, of an interest of the same legal or equitable quality, to his heirs or the heirs of his body, as a class of persons to take in succession from generation to generation, the limitation to the heirs entitles the ancestor to the whole estate." 4 Kent Com. 215; Hawkins v. Lee, 22 Tex. 544; Hancock v. Butler, 21 Tex. 804; Simonton v. White, 93 Tex. 50, ...