Dunham v. Chatham

• Decision Date: 01 January 1858
• Citation: 21 Tex. 231
• Parties: JOSEPH H. DUNHAM AND OTHERS v. JOHN G. CHATHAM AND WIFE.
• Court: Texas Supreme Court

21 Tex. 231

JOSEPH H. DUNHAM AND OTHERS

v.JOHN G. CHATHAM AND WIFE.

Supreme Court of Texas.

1858.

The presumption in favor of the community resulting from a deed made to either husband or wife, may be rebutted by proof that the purchase was with the separate funds of either partner; and when made to the wife, it may be shown to be for her benefit, not only from the advance by her of the purchase money, but if the funds be advanced from the separate means of the husband, the presumption of gift arises, and if from the community fund, it may be proven that the husband intended a gift and ordered the deed in her name. 16 Tex. 214;20 Tex. 389;27 Tex. 457.

Parol evidence is admissible to show, that a gift, though joint to husband and wife on the face of the deed, was intended and should operate only as a gift to the wife.

Where a woman receives property under a distribution as guardian of her children, and places such property on the inventory of her ward's estate; in a claim by her to the property, this is at most only an equitable estoppel against her, available only where her conduct has been fraudulent in its purpose, or unjust in its results. 17 Tex. 512.

Error from Grimes. Tried below before the Hon. P. W. Gray.

The defendant in error, Rotilda Chatham, with her husband, brought suit in 1856, alleging that she was formerly the wife of John H. Dunham, who died in November, 1853, leaving a considerable amount of property in his own right, and had control also of some of the separate property of said Rotilda. That Jos. H. Dunham administered on the estate of deceased, and made out and returned an inventory of the same. That in February, 1855, she discovered that property, consisting of several negroes and land, her separate property derived by gift from her father, was placed on said inventory of the estate of Jno. H. Dunham as community property. That she moved to have the same corrected before the probate court, which was there so ordered to be done. That in the partition which was afterwards made, said property was ordered to be partitioned as community property between her and the minor children of decedent. She further set forth the deed of gift from her father, with explanations how and for what purpose the same was made jointly to herself and to her husband John H. Dunham, deceased, alleging that the partition and the decree thereupon by the probate court was erroneous, and praying for a certiorari, etc.

The plaintiff in error, Dunham, answered, admitting that he did administer on the estate of John H. Dunham, and that in placing the negroes on the inventory as community property he acted upon the import of the deed of gift from Jas. Wood, the father; and in regard to the land, that he knew of no special claim on the part of defendant in error therein; and that the application for partition was made by her authority, and that when made that she assented to and approved the same. The minors, by their guardian ad litem set up the deed of gift, and that the defendants in error were estopped by her assent to the partition as made evidenced by various acts and declarations.

On the trial the defendants in error gave in evidence the record of the proceedings in the county court in regard to the estate of John H. Dunham, and the deed of gift from Jas. Wood to John H. Dunham and wife, and in connection with the latter the deposition of Thomas Durham, who proved that he wrote the deed of gift, and that at the time it was executed, Wood, the donor, told him that he intended to give this property to his child, Rotilda. John H. Dunham was present. It was the express intention of Wood that his child, Rotilda, should be the prime beneficiary of this gift, but that John H. Dunham might have the control of it as her husband. The name of John H. Dunham was inserted in the deed at the suggestion of witness, to which Wood assented, that he might show his confidence in him. Tillotson Wood, a witness to the deed, testified substantially the same as Durham, and in addition, that Wood, the father of Rotilda, paid five hundred dollars as part of the purchase money for the 346 acres of land mentioned as the homestead and divided as community property.

Plaintiff in error then introduced evidence to show that the defendant in error, Rotilda, had not expressed any dissatisfaction with the partition until about the time of her second marriage. They also proved by one of the appraisers of the estate of John H. Dunham, deceased, that the inventory was made at the house of deceased, and that the defendant in error and her father, James Wood, were present, and that he supposed they knew that this property was inventoried as community; heard no objection made, but did not recollect that anything was said to defendant in error on the subject. One of the commissioners appointed by the county court to divide the estate of John H. Dunham, between his widow and minor children, proved that the division was made at the house of defendant in error, and that she was present and offered no objection. They also offered inventories filed by defendant in error in the county court of Grimes county, as guardian of the minor children of John H. Dunham, upon which the negroes in controversy, except one apportioned to her, were entered.

They also offered the plaintiff in error, Dunham, as a witness, to prove circumstances attending the making of the inventory, and knowledge of the fact on the part of defendant Rotilda, that the negroes and land had been returned as community property, and that she assented to the same; and also declarations of the donor, James Wood. He was objected to as incompetent, and the objection was sustained. From the bill of exceptions, it appears that the plaintiffs in error objected to the testimony of Durham and Tillotson Wood given above, which objection was overruled. There was a verdict and judgment for the defendants in error for the negroes, and for $500 paid on the purchase of the homestead, etc.

Plaintiffs assign as error:

1st. The admission of the deposition of Thomas Durham.

2d. The admission of the testimony of Tillotson Wood.

3d. The refusal of the court to permit Alfred Howell to testify as to the declarations of Jas. Wood at the time the inventory was being made.

4th. The refusal to allow Joseph H. Dunham, the co-defendant of the minors, to testify in their behalf.

5th. The refusal of a new trial.

F. H. Merriman, for plaintiffs in error. The judgment of said district court should be reversed and a new trial granted, because--

I. The court erred in admitting the deposition of Thomas Durham and the testimony of Tillotson Wood, under the defendants' objection, to show the intention of James Wood, the donor of the slaves, at the time he executed the bill of sale to John H. Dunham and wife. This instrument recites that in consideration of one dollar, he, James Wood, bargains and sells to said John H. Dunham and his wife Rotilda, among other things, four negroes, Linda, Caroline, Mahala and Salina, with a warranty as to title. This is an absolute bill of sale upon a valuable consideration, and parol testimony to show the conversation at the time of the execution of the same, and the intention of the donor at the time he executed the instrument, should not have been admitted.

This cannot be a case of patent ambiguity, and if there is any ambiguity at all in the instrument it must be latent, that is there must be words used in the same in some technical sense, or there is some doubt as to the identity of the persons claiming under the same, or as to the situation and circumstances of any person or subject matter to which the instrument relates. In such cases parol testimony, to explain the instrument, has sometimes been admitted. But there is no such ambiguity claimed in this case, and the testimony should have been rejected. 1 Greenl. Ev. p. 405. “The question should be not what the party secretly and in fact intended, but what meaning did he intend to convey by the words he employed. It is only to ascertain the meaning of these words that parol evidence of extraneous facts may in some cases be admitted.” Epperson v. Young, 8 Tex. 136;2 Tex. 454;Kimball v. Morrell, 4 Greenl. 368. In Epperson v. Young, supra, Lipscomb, J., says, “that parol evidence could be received to explain the language or terms used in a written contract, so as to understand what the parties really meant, but never to permit to be received for the purpose of varying or substituting another one to control or overrule the written contract. With this conclusion we are fully satisfied.”

Such testimony, introduced to show that property held under said bill of sale, by Dunham and wife in community, was in fact intended by the vendor to be held by Rotilda the wife, alone--in severalty--should have been rejected. Potter et al. v. Yale College, 8 Conn. 52;18 Johns. 468;7 J. J. Marsh. 133;3 Hammond, 33;6 B. Mon. 219;7 Id. 73. In 2 Devereux, 508, it was held, “that parol testimony was inadmissible to prove that the name of C. was inserted in a bond by mistake, instead of the name of A.” In Paine v. McIntyre, 1 Mass. 69, it was held, “that the subsequent confession of the party as to the true intent and construction of the title deed under which he claims, will be rejected.” Townsend v. Meld, 8 Mass. 146.

There is in this case no allegation as to fraud in the application of the property, or a perversion of the same under the bill of sale, and it is not governed by those decisions which hold that a deed absolute on its face may, by parol proof, be shown to be a mortgage, on the ground of the fraudulent application of the instrument. In Stampers v. Johnson, 3 Tex. 5, the court say, “that parol evidence will be admitted to show or explain the real intention of the parties.” But the question under consideration in that case was, whether parol proof was admissible to show a deed, absolute on its face, was intended to be a mortgage, and on...