Diamond v. Rotan

• Decision Date: 16 December 1909
• Citation: 124 S.W. 196
• Parties: DIAMOND v. ROTAN et al.
• Court: Texas Court of Appeals

124 S.W. 196

DIAMOND v. ROTAN et al.

Court of Civil Appeals of Texas.

December 16, 1909.

On Rehearing, January 14, 1910.

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Action by W. L. Diamond, guardian, against J. W. Rotan and others. From a judgment for defendants, plaintiff appeals. Affirmed.

M. L. Morris and Richard B. Semple, for appellant. McGrady & McMahon, for appellees J. W. Rotan and J. G. McGrady. Spence & Baker for appellees Mrs. Daisy D. Leonard and Rhodes S. Baker.

HODGES, J.

The determination of the principal question presented in this appeal involves the construction of a deed of gift from Mrs. Leanna Leonard to her son, W. H. Leonard. It was made in 1888, and conveyed to W. H. Leonard the land in controversy. Omitting the description of the land, the deed is as follows:

"This indenture made this Feb. 18, 1888, by and between Leanna Leonard as a single person of the county of Buchanan and state of Missouri, party of the first part, and William Henry Leonard of the county of Buchanan, state of Missouri, party of the second part, witnesseth, that whereas the said party of the first part for and in consideration of love and affection and the sum of one dollar to her paid by the said party of the second part, the receipt whereof is hereby acknowledged, do by these presents remise, release and forever quit-claim unto the said party of the second part the following described lots, tracts or parcels of land lying and being and situate in the county of Fannin and state of Texas, subject to the conditions herein stated, to wit: (Description omitted.) To have and to hold the same unto him the said William Henry Leonard for and during his natural life unless the same or some part thereof should be sold by him or some creditor of his, in which event said land and the title thereto is to immediately vest in his children if any there be living at the time, share and share alike, or if he then have no children living then in the said Leanna Leonard if living, or if he then have no children and the said Leanna Leonard should be dead, then in the heirs of said Leanna Leonard, and at the death of said William Henry Leonard if the title to said land should still be in him, without being vested in others, as herein before provided, then same is to go to and become the property of his heirs, together with all and singular the rights, privileges and appurtenances thereto belonging."

Mrs. Leonard died in 1890 or 1891 without leaving any other children, so far as is disclosed by the record. At the time of the execution of this deed, and at the time of the death of Mrs. Leonard, W. H. Leonard was unmarried. In 1895, about six years after the death of his mother, he married Daisy Leonard, one of the appellees in this suit, by whom he had two children, Henry and John, aged ten and seven years, respectively, at the time of the trial in the court below. W. H. Leonard and his wife resided upon the land in controversy as their homestead for several years prior to the institution of this suit, and 200 acres of that land is still claimed as a homestead by the wife, Daisy Leonard. In 1908 R. L. Holcomb recovered a judgment against W. H. Leonard for the sum of $706.55 and costs of suit. By virtue of an execution issued upon this judgment the land in controversy was sold, and the appellees McGrady and Rotan claim under that sale.

On May 30, 1908, a conveyance was executed by W. H. Leonard, in which he was joined by his wife, conveying the property in suit to their minor children Henry and John L., and Rhodes S. Baker—to the latter in the double capacity as trustee for Mrs. Daisy Leonard and in his individual behalf. The deed set apart in trust for Mrs. Leonard for life 150 acres; to Baker, in consideration of his services as an attorney in securing the deed of settlement and for money advanced to Leonard as a consideration for the conveyance, a reasonable interest in the entire tract of land, to be fixed by some court of competent jurisdiction upon application therefor; to the minors Henry and John L. was given an absolute fee-simple title to all the remainder of the premises, and all interest in remainder after the termination of the life estate of Mrs. Leonard. The consideration expressed was love and affection for the children, the payment of $50, and the legal services rendered by Baker.

The testimony showed that Leonard was a man of spendthrift habits, that he wasted his means and failed to support his family. The family was without any property or means of support except the premises in controversy and the income from it. Rhodes S. Baker was employed by Mrs. Leonard to secure the deed of settlement above referred to, and he advanced the $50 recited as a part of the consideration. In October, 1908, this suit was instituted by John L. Leonard, as the next friend of the minors Henry and John L., against Rotan, W. H. Leonard, Daisy Leonard, and Rhodes Baker, to recover all of the land described in the original deed. Previous to the trial John L. Leonard died, and W. L. Diamond was appointed guardian of the estates of the minors and permitted to appear and prosecute the suit. In his petition Diamond sets forth the facts substantially as stated here, and claims that the estate of W. H. Leonard in the land terminated by the sale made by the creditor Holcomb and by Leonard's deed to Baker and Mrs. Leonard, charging that these were breaches of the conditions imposed in the original deed; that by the terms of that instrument the occurrence of those contingencies operated to vest the remainder in fee in the minors for whose benefit he sues. He asks for judgment for the entire tract of land, in his capacity as guardian. The defendants in the court below answered, setting up their claims as evidenced by the deeds under which they claimed. The case was tried before the court without a jury, and a judgment rendered in favor of the defendants, denying the right of the guardian to any portion of the property, but recognizing the distribution made in the deed above referred to from W. H. Leonard. To Baker was given, as a reasonable compensation for his services, a one-tenth interest in the property. The title of the appellees McGrady and Rotan was limited to the excess over the homestead of 200 acres. The guardian alone has appealed.

At the request of the appellant, the court filed conclusions of fact and of law, and in his conclusions of law holds that the original deed from Mrs. Leanna Leonard to W. H. Leonard vested in the latter a fee-simple estate to the entire tract of land. The only errors assigned in this court are those which question the correctness of this conclusion of law and the further conclusion holding that the appellees McGrady and Rotan were entitled to any portion of the property. If the court was correct in concluding that Leonard took from his mother an absolute fee-simple estate in the land, it logically follows, from the facts in evidence, that he must also have been correct in holding that the excess over the homestead claim of Leonard was subject to execution and sale at the instance of a creditor, and that McGrady and Rotan had acquired a good title to that portion. It is apparent therefore that the entire appeal must be determined by a review of the legal conclusion complained of by the first assignment of error. The question is: Did W. H. Leonard take under the deed from his mother an absolute fee-simple estate, or merely a qualified fee held upon condition? The grant was for and during his natural life, and at his death, if the title was still in him without having been divested by a breach of the conditions named, it passed to his heirs generally. The legal effect of this language, if the conditions imposed are to be ignored as void, conveys an absolute fee-simple estate. Seay v. Cockrell (Sup.) 115 S. W. 1160. But if those conditions are to be given effect, then Leonard took only a qualified, or conditional, fee, and the court erred in holding to the contrary.

The only ground upon which the court could have disregarded the conditions specified in the deed is that they were void as being a restraint upon the alienation of a fee-simple estate. That a general restraint upon the power of alienation, when incorporated in a deed or will otherwise conveying a fee-simple right to the property, is void, is now too well settled to require discussion. Potter v. Couch, 141 U. S. 296, 11 Sup. Ct. 1005, 35 L. Ed. 721; Seay v. Cockrell (Sup.) 115 S. W. 1160; Kessner v. Phillips, 189 Mo. 515, 88 S. W. 66, 107 Am. St. Rep. 368; Simonton v. White, 93 Tex. 50, 53 S. W. 339, 77 Am. St. Rep. 824; White v. Dedmon, 57 S. W. 870; Laval v. Staffel, 64 Tex. 371; Bouldin v. Miller, 87 Tex. 359, 28 S. W. 940; Latimer v. Waddell, 119 N. C. 370, 26 S. E. 122, 3 L. R. A. (N. S.) 668, and cases cited in notes; Tiedeman on Real Prop. § 204; 24 Am. & Eng. Ency. 864. The apparent uniformity of the ruling does not extend to all the forms in which this restrictive power is sought to be exercised in deeds and wills. The most frequent occasions where courts have been called upon to interpose this objection occur where the deed or will merely contains a clause forbidding the alienation indefinitely, or providing that the property conveyed shall not be sold for the debts of the grantee by any creditor, without at the same time providing that the first estate shall thereby terminate and vest in another. In such cases the rule has been upheld with practical unanimity by the courts of the country, as well as by the text-writers. But in cases where the instrument to be construed contains a provision to the effect that if the grantee sells any part of the property, or it shall be sold at the instance of a creditor, the estate conveyed shall cease and the title to the property thereupon pass to another named person or revert to the grantor, there has arisen some diversity of opinion as to the propriety of holding such...