Harris v. Strawbridge

• Decision Date: 03 December 1959
• Docket Number: No. 13481,13481
• Citation: 330 S.W.2d 911
• Parties: Vernette HARRIS et al., Appellants, v. Ethel STRAWBRIDGE et al., Appellees.
• Court: Texas Court of Appeals

Page 911

330 S.W.2d 911

Vernette HARRIS et al., Appellants, v. Ethel STRAWBRIDGE et al., Appellees.

No. 13481.

Court of Civil Appeals of Texas, Houston.

Dec. 3, 1959.

Rehearing Denied Dec. 23, 1959.

Second Motion Overruled Jan. 14, 1960.

Bell, Camp & Gwin, Bay City, E. C. Schroeder, Boone, Iowa, Price, Guinn, Veltmann & Skelton, Houston (Lawrence Gwin, Bay City, Barnet B. Skelton, Dee S. Osborne, Houston, of counsel), for appellants.

Joe Entzminger, John B. Letcher, Bay City, for appellees.

BELL, Chief Justice.

Ethel Strawbridge, the widow of Edward Strawbridge, filed suit to recover title to a 189 acre tract of land in Matagorda County. Suit was against appellants who were some of the heirs of Edward Strawbridge. There were other heirs of Jane Blades, sister of Edward Strawbridge, who were cited by publication who did not appear in the trial except through the attorney ad litem appointed by the court. Such defendants have not appealed. Appellants are the heirs of Matilda Turner, the sister of Edward Strawbridge.

The first count of plaintiff's petition is in the statutory form of trespass-to-try title with a claim for damages. Appellee also claimed title under the 3, 5 and 10 year statutes of limitation. Further, by a trial amendment, appellee sought to reform an alleged deed dated October 20, 1941, from Edward Strawbridge to her, contending that by mutual mistake the granting clause had been omitted. Too, she asserted the suit was to reform the alleged deed and to remove cloud from title.

Appellant, besides some exceptions not necessary to notice, plead not guilty, a general denial and that the four year statute of limitation was a bar to reformation of the deed.

A trial was had before a jury and the case was submitted on the issue as to whether appellee had title under the ten year statute of limitation. The jury answered favorably to appellee and the court entered judgment in her favor on this verdict.

It is necessary for clarity to at this point notice some of the facts. Edward Strawbridge and appellee, Ethel Strawbridge, married in 1935. Edward Strawbridge died in July, 1943. He and Mrs. Strawbridge lived in the State of Florida. They had no children. Edward Strawbridge left no children or their descendants surviving him. His mother and father predeceased him. All of Mr. Strawbridge's brothers and sisters predeceased him. Only his sisters, Matilda Turner and Jane Blades, left descendants, they all being made parties to this suit.

In 1928 Edward Strawbridge made a will when he lived in Platteville, Wisconsin, which contained a general revocation clause. By paragraph 2 of this will he left his homestead in the State of Florida, together with the furniture and furnishings, to his sister, Jane Blades. By paragraph 3 he gave Jane Blades a life estate in his 235 acre farm located in LaFayette County, Wisconsin. Also he gave her a life estate in mining rights in and under a six acre tract adjoining the farm. Then a life estate after the death of Jane Blades was given named nieces and nephews, and the remainder was to the Free Methodist Church of North America. By paragraph 4 the income from $2,000 was left to a niece, with remainder to the above named church. Then follow six paragraphs by which named persons were given bequests of money. Isabella Blades, his niece, was made executrix of his estate. This will contained a residuary clause, leaving the residue of his property wherever situated to Jane Blades and her six children in equal shares.

On April 24, 1940, Edward Strawbridge left another will. This will named Ethel Strawbridge executrix. He devised all of his property located or having its situs in the State of Florida to Ethel Strawbridge. In paragraph 'Three' of this will he provided as follows:

'In and by a Will made by me many years ago in Wisconsin and now in the hands of Kopp and Brunckhurst, Attorneys, in Platteville, Wisconsin, I made certain disposition of property owned by me in the State of Wisconsin. I desire that the provisions of that will shall stand unrevoked so far as they affect the said property in Wisconsin.' (Emphasis ours.)

This will contained no residuary clause.

These two instruments were both admitted to probate in the States of Wisconsin and Florida, as the last will and testament of Edward Strawbridge. They were not offered for probate in Texas, but were filed in the Deed Records of Matagorda County, as authorized by statute, V.A.T.S. Probate Code, Sec. 96, as a muniment of title, in 1957.

On October 20, 1941, Edward Strawbridge executed the following instrument:

'State of Texas, County of Matagorda, know all men by these presents that I, Edward Strawbridge, of Escambia County, Florida, for and in consideration of One ($1.00) Dollar and other good and valuable considerations to me in hand paid by Ethel Strawbridge of the City of Pensacola, Escambia County, Florida, that certain property described as follows:

(Here follows a sufficient description of the land involved in this suit)

'To have and to hold the above described property, together with all and singular the rights appurtenances thereunto in anywise belonging unto the said Ethel Strawbridge, her heirs or assigns forever.'

This instrument was properly signed and acknowledged. It was filed for record in the office of the County Clerk of Matagorda County by Ethel Strawbridge on December 10, 1942, and is recorded in the Deed Records in Volume 147, at page 283.

As we read the record, this instrument was first offered by appellee as a deed, and, upon objection by appellants that it was not a deed but was a void instrument since on its face it granted nothing, it violated the Statute of Frauds and the Statute of Conveyances, appellee stated it was offered, not as a deed, but as an instrument recorded in the Deed Records which gives constructive notice that Ethel Strawbridge was claiming the land the instrument described. We interpret this as an offer of the instrument as a sufficient deed under the five year statute of limitation and as a memorandum under the 10 year statute of limitation.

We have reached the conclusion that the case must be reversed and remanded because, as hereinafter discussed, we feel there was error in submission of the case to the jury because we feel the Wisconsin will of Edward Strawbridge was revoked except as to the Wisconsin property and that, therefore, Edward Strawbridge died intestate as to the Texas land and appellee was a tenant in common with appellants.

By Cross-Point appellee has assigned as error the action of the court in excluding the instrument of October 20, 1941, from Edward Strawbridge to appellee. We have concluded that the court did err because we think the instrument is a deed. We discuss our holding in this regard first because on retrial such holding may well be determinative of the law suit without regard to the question of limitation.

The instrument does not of course conform to the form of a deed set out by Article 1292, R.C.S.1925. However such form is not a legal requirement to an effective conveyance. In fact, that statute, after setting out a form of conveyance, provides that the substance of the form will be sufficient as a conveyance. At common law significance was attached to certain technical words and to the formal parts of a deed. The premises, which included the granting clause, the naming of the grantor and grantee, the expression of consideration, and a description of the land conveyed, were looked to to supply the grantor, grantee, the consideration, the operative words or words of grant and the description and these could not be supplied by resort to other portions of the deed. The habendum clause served to define the estate granted. It is no longer necessary to have these formal parts to have a good deed, nor is it necessary to use technical words. Now we look to the whole of an instrument to determine the intention of the parties. If from the whole instrument we can ascertain a grantor and a grantee and there are operative words or words of grant showing an intention by the grantor to convey title to land which is sufficiently described to the grantee, and it is signed and acknowledged by the grantor, it is a deed. Harlowe v. Hudgins, 84 Tex. 107, 19 S.W. 364; Baker v. Westcott, 73 Tex. 129, 11 S.W. 157; Young v. Rudd, Tex.Civ.App., 226 S.W.2d 469, ref., n.r.e.; Devlin on Real Estate, 3rd Edition, Vol. 1, Sec. 174.

The instrument before us sufficiently names a grantor and grantee. While Edward Strawbridge is not specifically called a grantor, there can be no question that he is such because it is recited that Ethel Strawbridge has paid him a consideration. The grantor is the person who normally receives the consideration. Too, he signed and acknowledged the instrument, and Ethel Strawbridge, the only other person named in the instrument, appears in the habendum clause as the person who is 'to have and to hold' the property. This is sufficient to show she is the grantee. Harlowe v. Hudgins, supra, and Newton v. McKay, 29 Mich. 1.

The vigorous contention of appellants is that there are no words of grant anywhere in the deed. They contend that the words 'to have and to hold' used in the habendum clause are not sufficient.

We hold that the habendum clause reading 'To have and to hold the above described property, together with all and singular the rights and appurtenances thereunto in anywise belonging, unto the said Ethel Strawbridge, her heirs and assigns forever' contains operative words effectively evidencing an intention by Edward Strawbridge to convey fee simple title to Ethel Strawbridge. (Emphasis ours.)

No technical words of grant are necessary to convey land. Baker v. Westcott, supra. In the Baker case the instrument was in nowise, as to form, a deed as set out by statute. The instrument was more in the form of a bond for title. However, the court held that it was effectual as a present conveyance since it used this...