Davis v. Magnolia Petroleum Co.

• Decision Date: 03 January 1940
• Docket Number: No. 1785-7301.,1785-7301.
• Citation: 134 S.W.2d 1042
• Parties: DAVIS et al. v. MAGNOLIA PETROLEUM CO. et al.
• Court: Texas Supreme Court

134 S.W.2d 1042

DAVIS et al. v. MAGNOLIA PETROLEUM CO. et al.

No. 1785-7301.

Commission of Appeals of Texas, Section B.

January 3, 1940.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit to try title by Aubrey Davis and others against the Magnolia Petroleum Company and others. Judgment for defendants was affirmed by the Court of Civil Appeals, 105 S.W.2d 695, and plaintiffs bring error.

Affirmed.

H. A. Berry and Carl Runge, both of Houston, for Federal Land Bank.

King, Mahaffey & Wheeler and William Hodges, all of Texarkana, Edwin M. Fulton, of Gilmer, and C. E. Bryson, of Houston, for plaintiffs in error.

C. E. Florence, of Gilmer, Lewis Rogers and Bruce Billingsley, both of Houston, Wynne & Wynne, of Longview, Sam Williams, of Mt. Pleasant, and W. H. Francis and Roy C. Ledbetter, both of Dallas, for defendants in error.

TAYLOR, Commissioner.

Plaintiffs in error, the children and grandchildren of C. M. Davis, deceased, as plaintiffs in the trial court, brought this suit to try title against the following designated defendants: the fee owner of the land involved, the holder of a leasehold interest and other holders of mineral rights in the land, and the Federal Land Bank of Houston as holder of certain notes secured by deed of trust on the land, all of whom are defendants in error here. The jury was discharged by agreement of the parties after the evidence was introduced. The court thereupon as trier of the facts as well as the law rendered judgment that plaintiffs take nothing and that defendants go hence without day. The Court of Civil Appeals affirmed the judgment. 105 S.W.2d 695.

C. M. Davis, a widower, and his second wife, M. A. Davis, purchased the land in question from N. W. Grau and wife in August, 1919, during coverture of Davis and his wife, for the consideration of the execution and delivery by Davis of two vendor's lien notes for $540 and $749, respectively, and the further consideration of his assuming payment of two other vendor's lien notes then outstanding against the land for $580 each, due January 1, 1920 and January 1, 1921, respectively, the notes executed and those assumed carrying the same maturity dates.

The property in question was the homestead of Mr. Davis and his wife. Davis died intestate June 3, 1920, survived by his wife and three of their children, Ed, Aubrey and O. M. Davis, and J. L. Davis, a stepson of the wife. There were other children whom it is unnecessary to mention. The above described notes were outstanding against the land at the time of his death, which occurred some nine months after the land was purchased. Mrs. Davis and some of the children continued to occupy it as their rural homestead until November 27, 1924, at which time Mrs. Davis by warranty deed joined in by her stepson and the three children above named, conveyed the land to the First National Bank of Gilmer.

The deed recites among other things that "We, Mrs. M. A. Davis, surviving wife of C. M. Davis, deceased, a feme sole," for and in consideration of the sum stated in the deed, "have granted, sold and conveyed" to the First National Bank of Gilmer, Texas, the property in question, describing it. The deed is signed and acknowledged by Mrs. Davis, J. L. Davis, the stepson, and Mrs. Davis' three children named above.

The consideration recited in the deed is $1450, paid by the bank as follows: "$167.00 cash, * * * and the cancellation * * * of one * * * note due the bank * * * executed by Mrs. M. A. Davis and son, Ed Davis, for $450.00, also the * * * cancellation of a * * * note due J. W. Wall signed by Mrs. * * * Davis for * * * $550.00, and also the settlement and * * * cancellation of a * * * note due Roberts & Oliver, signed by Mrs. * * * Davis for * * * $175.00, also the assumption of the taxes due on said land for the years 1923 and 1924, amounting to $108.00."

Immediately following the quoted recitation is the further recitation which reads: "Said above described indebtedness is community indebtedness created by C. M. Davis and Mrs. M. A. Davis during their married relation, except the note due Roberts & Oliver, said amount * * * (being) due for the burial expenses of C. M. Davis, the deceased husband of Mrs. M. A. Davis."

After the sale of the land to the bank Mrs. Davis and the children then living with her moved away. The bank sold it to Burnett Burns, who in turn, on January 14, 1925, conveyed it to M. C. Bell, retaining one-half of the oil, gas and mineral rights. On January 25, 1929, Bell executed a deed of trust in favor of the Federal Land Bank, and Bell and Burns executed various mineral conveyances to others who are defendants in error here or their grantors.

The sale it will be noted was made more that four years after the death of C. M. Davis. There was no administration on his estate. Mrs. Davis did not marry again and did not qualify as survivor. No question of bad faith on her part, or of anyone else connected with the sale, is presented or involved.

Plaintiffs seek to recover title to the respective interests claimed by them in the land and to cancel the notes held by the Federal Land Bank, upon the grounds indicated by the four following propositions: first, that by the deed above described Mrs. Davis did not exercise her power as community survivor, and that it was effective to convey only her one-half community interest, and J. L. Davis' one-twelfth interest in the land; second, that upon the death of C. M. Davis his community interest was inherited by his children and grandchildren subject to the homestead rights of his widow and minor children, and that Mrs. Davis, without qualifying as survivor of the community, was without power to convey the community interest thus inherited to pay community debts that were not liens upon the homestead; third, that Mrs. Davis, since she did not qualify as community survivor under the statute within four years after her husband's decease, and since there was no regular administration on the estate during such time, lost the power as survivor to sell the children's homestead interest in the community to pay community debts, especially those not secured by a lien on the homestead; and, fourth, that defendants failed to discharge the burden upon them to establish that Mrs. Davis sold the land to pay community debts existing at the very time the land was sold.

Among the contentions presented here by plaintiffs as incidental to those made in support of the foregoing propositions, is one that will be disposed of preliminary to a discussion of the alleged errors of the Court of Civil Appeals. It is that the unqualified surviving wife in making sale of the community homestead to pay community debts does not have the same broad powers for this purpose as does the unqualified surviving husband. While admitting the surviving husband has power to sell the homestead to pay ordinary community debts (Stone v. Jackson, 109 Tex. 385, 210 S.W. 953) they question the power of the surviving wife to do so.

Such power on the part of the surviving wife was recognized by this Court in Ladd v. Farrar, 17 S.W. 55, in which it is held that the surviving wife has such power. Other cases so holding in which writs of error were refused by this Court are: Crawford v. Gibson, Tex.Civ.App., 203 S.W. 375; Hames v. Stroud, 51 Tex.Civ. App. 562, 112 S.W. 775; Henry v. Vaughan, 46 Tex.Civ.App. 531, 103 S.W. 192; Jennings v. Borton, 44 Tex.Civ.App. 280, 98 S.W. 445 and Jung v. Petermann, Tex.Civ. App., 194 S.W. 202. No such distinction as that insisted upon by plaintiffs has been established by our decisions, and the Court is not disposed to create such a distinction at this time. The contention is overruled.

The Court of Civil Appeals held that Mrs. Davis in executing the deed to the bank exercised her power as community survivor and that it was effective to convey the entire interest in the property. Writ of error was granted upon the assignment complaining of this holding, but upon further consideration in the light of the subsequent action of this Court upon an assignment predicated upon a similar contention made by plaintiff in error in Griffin et al. v. Stanolind Oil & Gas Company, Tex.Com.App, 125 S.W.2d 545, we have concluded that the holding of the Court of Civil Appeals upon this point is correct.

Such a conveyance by a grantor having power to convey as community survivor, "passes title commensurate with the power," notwithstanding he does not specify in the instrument of conveyance that...