Faulk v. Dashiell

• Decision Date: 16 December 1884
• Docket Number: Case No. 1642.
• Citation: 62 Tex. 642
• Parties: J. J. FAULK AND WIFE v. ANN R. DASHIELL ET AL
• Court: Texas Supreme Court

62 Tex. 642

J. J. FAULK AND WIFE

v.ANN R. DASHIELL ET AL

Case No. 1642.

Supreme Court of Texas.

Dec. 16, 1884.

APPEAL from McLennan. Tried below before the Hon. B. W. Rimes.

Trespass to try title, brought by Ann R. Dashiell and Alfred H. Dashiell, a minor, represented by his next friend, J. H. Bennett, filed 15th March, 1882, against J. J. Faulk and wife, Genie Faulk, for the recovery of four hundred and sixteen acres of the Jacob Walker league in McLennan county. Defendants filed a general demurrer, general denial and a plea of not guilty. The case was tried 5th June, 1883, before the court without a jury, and a judgment was rendered in favor of plaintiffs for the land, and for costs, etc., from which judgment defendants took an appeal, upon their motion for new trial being overruled, and they filed an appeal bond, and have assigned errors. One of the links in the chain of title of defendants consisted of a deed of trust on the land in controversy, made by W. B. Dashiell, as the executor of the last will of C. A. Dashiell, deceased, who was the ancestor of plaintiff; and the main point in the case involved the power of the executor, under the terms of the will, to bind the land by giving a deed of trust upon it. The construction of the deed of trust was also involved. The land was sold under the deed of trust, and appellants claimed under the purchaser at such sale.

The land in controversy was the separate property of the testatrix, C. A. Dashiell, who constituted her husband, W. B. Dashiell, executor of her will, which directed as follows:

“It is my will and desire, and I hereby direct that my executor take full charge of my entire estate and manage and control the same as he may think best for the interest of my children before named, and I hereby fully empower him, my executor, to sell, exchange and dispose of my estate as he may deem necessary for the interest of my said children, being responsible to no one, and do direct that no bond be required of my executor, and that no further proceedings be had on my estate by the probate court than the probatingof this, my last will and testament, and the return of an inventory and appraisement of my estate. It is my will and desire, and in conformity that I hereby direct, that my executor take charge of my entire estate and manage and control the same for the support, maintenance and liberal education of my children aforesaid, and when my children attain lawful age it is my will and desire, and I hereby direct, that the residue remaining in the hands of my executor, after raising and educating my children aforesaid, be equally divided among my said children.”

The land in controversy was part of a tract which, at the time of the death of Mrs. C. A. Dashiell, was owned jointly with L. V. Greer. Partition of it was effected after her death, and on the 15th of January, 1876, L. V. Greer conveyed by deed her interest to “W. B. Dashiell, executor of C. A. Dashiell.” On May 18, 1876, said W. B. Dashiell made and delivered a deed of trust on said land, constituting D. W. Doom trustee, to secure the payment of $2,120 received from C. R. Beatty as a loan, and which was evidenced by Dashiell's promissory note payable twelve months after date, bearing twelve per cent. interest per annum.

The deed of trust contained the following recitals:

“Know all men by these presents that I, W. B. Dashiell, as executor of the last will of C. A. Dashiell, deceased, of the county of Kauffman, state of Texas, for and in consideration of $1 to me in hand paid, etc., have given, granted, bargained, sold, alienated and conveyed unto and delivered to D. W. Doom (trustee) all my right, title, interest and claim in and to the following described property, situated in McLennan county, Texas (specially waiving all homestead, dowry, interest or other rights secured under the constitution and laws of Texas and exempt from forced sales thereby), viz.: Four certain lots of land, part of the headright of Jacob Walker, being,” etc., describing the property mortgaged.

The deed of trust also provided that in default of payment the trustee could sell, etc., and upon payment of the purchase money by the bidder, “to make, execute and deliver to the purchaser a warranty deed to the property, signing my name thereto, and I bind myself to warrant and defend the same against the lawful claims of all persons,” the proceeds of sale to be applied to payment of said note, etc., “and the residue to be paid to me or my legal representatives.” The deed of trust is signed “W. B. Dashiell, as executor of C. A. Dashiell, deceased.” The acknowledgment of the notary recites: “This day personally appeared W. B. Dashiell, as executor of the estate of C. A. Dashiell, deceased, well known to me, who acknowledges,” etc. A sale was made under this deed of trust, and a deed executed by the trustee to C. R. Beatty, as purchaser, for the land in controversy, dated 15th February, 1879, reciting the several predicates usual in such deeds, and referring to the maker of the deed of trust as “W. B. Dashiell, as executor of C. A. Dashiell, deceased.”

The appellants assigned as grounds of error:

1st. The court erred in the construction of the deed of trust from W. B. Dashiell to D. W. Doom, trustee, in that it was held that by the terms of said trust deed it only conveyed all the right, title and interest of said W. B. Dashiell, and did not affect, incumber or convey any of the right, title and interest of the children and devisees of the testatrix, Catherine A. Dashiell, and that by the sale by said trustee thereunder no right, title or interest of said devisees passed.

2d. The court erred in holding that by the terms of the will of Catherine A. Dashiell, W. B. Dashiell was not empowered and authorized, for the purposes mentioned therein, of raising, maintaining and educating her children, to mortgage the property devised.

Felix Robertson and Herring & Kelley, for appellants, cited: Daughtrey v. Knolle, 44 Tex., 453et seq.; Hough v. Hill, 47 Tex., 153;Rogers v. Bracken, 15 Tex., 567;Giddings v. Byers, 12 Tex., 82;Eckhart v. Reidel, 16 Tex., 65et seq.; Rogers v. Frost, 14 Tex., 268;Williams v. Chandler, 25 Tex., 11;Orr v. O'Brien, 55 Tex., 156-8;Danish v. Disbrow, 51 Tex., 235; Hill on Trustees (star page), 342, 355 and n. 1, 475; 4 Kent (12th ed.), 147-8; Lancaster v. Dolan, 1 Rawle (Pa.), 231; Zane v. Kennedy, 73 Pa. St., 182; Presbyterian Corporation v. Wallace, 3 Rawle, 109; Duval's Appeal, 38 Pa. St., 118; Penn's Life Ins. Co. v. Austin, 42 Pa. St., 257; 1 Am. Law Reg. (O. S.), 128; Steifel v. Clark, 9 Bax. (Tenn.), 466; 13 U. S. Dig. (N. S.), 1882, p. 738, secs. 10, 11.

Clark & Dyer, for appellees, cited: Kershaw v. Boykin, 1 Brev. (S. C.), 301; Webb v. Webb, 29 Ala., 606; Farquharson v. Eichelberger, 15 Md., 63;Norris v. Harris, 15 Cal., 226;Bloomer v. Waldron, 3 Hill (N. Y.), 361; Ferry v. Laible, 31 N. J. Eq. (4 Stew.), 577; Wilson v. Ins. Co. (Md., October term, 1882), 17 Cent. L. J., 500; Patapsco Guano Co. v. Morrison, 2 Woods, 395;Gregg v. Curner, 36 N. H., 200; Dexter v. Sullivan, 34 N. H.

WALKER, P. J. COM. APP.

Considering first the first ground of assigned error, we are of the opinion that it does not appear from the deed of trust, viewed in connection with the evidence in the case, that it was the intention of W. B. Dashiell to limit the conveyance made in it to his own particular interest in or title to the property described in it. It would be altogether too close and technical a construction applied to the words “all my right, title, interest and claim,” under the evidence, for a court having equity jurisdiction to confine their meaning to the right, title, interest and claim of the grantor in his personal and individual right.

It appears from the will that he possessed no other title nor interest in the property than such as he held in his fiduciary relation as trustee under the will. His deceased wife having died, leaving a will which in express terms devised and bequeathed to her children all of her property, both real and personal, he did not inherit the life estate in one-third of the lands of the deceased, as otherwise he would have done. He therefore had no interest whatever in the land, and the instrument must be construed as being meant to convey the title and interest of some one; and the construction, where the terms used are doubtful or ambiguous, will be given to it which is most strongly against the grantor.

Where doubt exists as to the construction of an instrument prepared by one party, upon the faith of which the other party has incurred obligations or parted with his property, that construction should be adopted which will be favorable to the latter party; and where an instrument is susceptible of two constructions--the one working injustice and the other consistent with the right of the case--that one should be favored which upholds the right. 1 Wait's Act. & Def., 124. Citing Noonan v. Bradley, 9 Wall. (U. S.), 395, 407; Barney v. Newcomb, 9 Cush. (Mass.), 46.

And where the language of a promisor may be understood in more senses than one, it is to be interpreted in the sense in which he knew or had reason to suppose it was understood by the promisee. 1 Wait's Act. & Def., 124. Citing Hoffman v. Ætna Ins. Co., 32 N. Y. (5 Tiff.), 405, 413; Barlow v. Scott, 24 N. Y. (10 Smith), 40.

And when it becomes necessary to inquire into the intent of the parties to a deed, the court will take into consideration the circumstances attending the transaction and the particular situation of the parties, the state of the thing granted, etc., at the time. 2 Wait's Act. & Def., 504, and authorities there cited.

It is obvious that from the application of these rules of construction it must result that the deed of trust was intended to operate upon the right and title of the estate of Mrs. Dashiell in the land; that the mortgagee must thus have understood it when he loaned the money, and that W. B....