Hill v. Foster

• Decision Date: 22 May 1944
• Docket Number: No. 5620.,5620.
• Citation: 181 S.W.2d 299
• Parties: HILL v. FOSTER et al.
• Court: Texas Court of Appeals

181 S.W.2d 299

HILL v. FOSTER et al.

No. 5620.

Court of Civil Appeals of Texas. Amarillo.

May 22, 1944.

Rehearing Denied June 19, 1944.

Appeal from District Court, Montgomery County; E. T. Murphy, Judge.

Action by Hamlin L. Hill against W. N. Foster and others in trespass to try title to recover certain lands wherein defendants brought a cross-action in trespass to try title. From a judgment for defendants, plaintiff appeals. The Supreme Court transferred the appeal from the Court of Civil Appeals of the Ninth Supreme Judicial District at Beaumont to the Court of Civil Appeals at Amarillo.

Affirmed.

J. R. Hill, of Houston, for appellant.

E. R. Campbell, of Houston, Joe Strode Claude L. Madeley, and W. N. Foster, all of Conroe, for appellees.

PITTS, Chief Justice.

Appellant, Hamlin L. Hill, filed suit against appellees, W. N. Foster, Mrs. Zula Kayser Stewart, a feme sole, Mrs. Lillie Kayser Butler and husband, Earl H. Butler, in trespass to try title to recover 100 acres of land in the Orsan Shaw Survey, located partly in Montgomery County and partly in San Jacinto County.

Appellees answered generally and by a cross-action in trespass to try title.

Trial was had without a jury before the court and judgment was rendered against appellant and for appellees on their crossaction, from which judgment appellant perfected his appeal to the Court of Civil Appeals of the Ninth Supreme Judicial District at Beaumont and the same was transferred to this court by the Supreme Court of Texas.

At the request of appellant the trial court filed findings of fact and conclusions of law which, in effect, are as follows: By stipulation it was agreed that Mrs. Annie Baxley was the common source of title and that whatever title the parties had was deraigned from her; that Mrs. Annie Baxley owned as her separate property on September 6, 1902 the 100 acres of land involved in this case; that she, joined by her husband, M. A. Baxley, deeded it on said date to R. Kimbro and the deed was filed for record in Montgomery County on March 11, 1904 and recorded in Volume 32, page 350; that on May 31, 1924 R. Kimbro and wife deeded said land to A. L. Kayser and the deed was recorded in Montgomery County on July 25, 1925; that A. L. Kayser owned a one-half undivided interest therein and held the other one-half undivided interest for appellee, W. N. Foster; that A. L. Kayser died intestate on June 14, 1928, leaving as his sole heirs his widow, Mrs. Zula Kayser, and one daughter, Lillie Kayser Butler, both of whom, joined by Earl H. Butler, together with W. N. Foster, executed a deed of partition on February 15, 1932 setting apart the northeast one-half to Mrs. Zula Kayser and her daughter, Lillie Kayser Butler, and the southwest one-half to W. N. Foster, and the deed was recorded in Montgomery County; that on January 12, 1942 Mrs. Annie Baxley, joined by her husband, M. A. Baxley, executed a deed of ratification and conveyance approving and ratifying the deed they had previously executed to R. Kimbro on September 6, 1902, conveying to R. Kimbro, his heirs and assigns, the said 100 acres of land and the said deed was filed for record in Montgomery County on January 24, 1942; that Mrs. Zula Kayser married Claude B. Stewart on August 2, 1932 and that Claude B. Stewart died several years thereafter; that on August 31, 1933 Mrs. Annie Baxley and her husband, M. A. Baxley, executed and delivered to San Jacinto Lumber Company a deed conveying all of their right, title and interest in the Orsan Shaw Survey in Montgomery County and San Jacinto County for a consideration of $75; that the said instrument was delivered to Hamlin L. Hill, President of San Jacinto Lumber Company, and the same was filed for record in Montgomery County on April 15, 1941 and recorded in Volume 219, page 266 of the deed records; that Hamlin L. Hill was practically the sole owner of San Jacinto Lumber Company; that prior to the execution and delivery of the last-mentioned deed and prior to the payment of the consideration of $75 to appellant, Mrs. Annie Baxley told appellant that she had formerly sold 100 acres of land in the Orsan Shaw Survey to R. Kimbro some thirty-odd years previously thereto; that appellant was fully informed of the sale and conveyance of the land in question by the Baxleys to Kimbro and that the Baxleys claimed no title or interest in the said 100 acres of land after conveying it to Kimbro when he bought whatever interest the Baxleys had in the said land for the San Jacinto Lumber Company; that on February 25, 1942 the San Jacinto Lumber Company, acting through Hamlin L. Hill, President, conveyed all of its right, title and interest in the said land to appellant; that an abstract copy of the deed executed by the Baxleys to Kimbro on September 6, 1902 was introduced in evidence; that J. M. Dean, a Justice of the Peace of Geneva County, Alabama, took the acknowledgments of the Baxleys to the deed in question; that Dean was a neighbor of the Baxleys and knew them well; that the acknowledgment of Mrs. Annie Baxley was taken separate and apart from her husband; that the instrument was explained to her by the officer, Dean, before she signed it; that she signed it willingly and did not wish to retract the execution of the instrument; that the officer, J. M. Dean, impressed his seal on the certificate of acknowledgments; that the acknowledgments met the requirements of the Texas laws; that a Justice of the Peace in Alabama had the lawful right and authority to take acknowledgments of deeds; that the purchase of the land in question by appellant, Hamlin L. Hill, for San Jacinto Lumber Company after appellant had been advised that the Baxleys had many years previously thereto conveyed the said 100 acres of land in question to their neighbor, R. Kimbro, and that they did not want to do anything to injure or affect his title was mala fides; that the land in question was worth $6 to $8 per acre and that the consideration of $75 paid by appellant to Mrs. Annie Baxley was grossly inadequate; that appellees had rendered the land in question for taxes year by year and paid all the taxes to date on the same but that neither the San Jacinto Lumber Company nor appellant had paid any taxes on the same.

The trial court concluded as a matter of law that appellees were entitled to judgment.

If the evidence supports the findings of the trial court, its findings are conclusive and both appellant and this court are bound by such findings. Higginbotham Bros. & Co. v. Callaway, Tex.Civ.App., 170 S.W.2d 333; Holden v. Boynton, Tex.Civ. App., 170 S.W.2d 323; Smith v. Prater, Tex.Civ.App., 161 S.W.2d 361; Burks v. Brinkley, Tex.Civ.App., 161 S.W.2d 316; O'Connor v. Ryan, Tex.Civ.App., 159 S.W. 2d 531; Sansing v. Bricka, Tex.Civ.App., 159 S.W.2d 142; Klein v. Palmer et al., Tex.Civ.App., 151 S.W.2d 652; and Temple Trust Co. et al. v. Haney, 133 Tex. 414, 126 S.W.2d 950. We believe the evidence hereinafter discussed supports the findings of the trial court in the controlling issues.

Appellant predicates his appeal upon eight points in which he claims superior title to the land in question for the following reasons: that the certificate of the officer who took the acknowledgment of Mrs. Annie Baxley, a married woman, to the Kimbro deed on September 6, 1902 does not show that the instrument was fully explained to her and does not show that she acknowledged and executed the deed for the purposes and consideration therein expressed; that there was no official seal impressed on the said certificate; that a deed of ratification executed by the Baxleys was held by the trial court to be superior to a deed previously executed by them to appellant; that the grantee in the original deed for which the ratification deed was executed to correct was dead when the deed of ratification was executed; that Annie Baxley's name as grantor was not in the body of the original Kimbro deed; that parol evidence was improperly admitted to supply some of the essential things missing in the officer's certificate and that some of the findings of the trial court were not supported by competent evidence.

The deed executed by Mrs. Annie Baxley and husband, M. A. Baxley, of date September 6, 1902 with R. Kimbro as grantee, was in the form of the usual warranty deed conveying the land in question, signed and acknowledged by them both. A copy of the officer's certificate about which appellant complains is as follows:

"State of Alabama, Geneva County. I, J. M. Dean, Justice of the Peace in and for said County do hereby certify that on the 6 day of Sept. 1902 came before me the within named Annie Baxley who known or made known to me to be the wife of the within named M. A. Baxley being examined separate and apart from the husband touching her signature to the within deed acknowledged that she signed the same of her own free weill and accord and without feer, constraint, threats or persuasion on the part of her husband. In witness whereof I hereunto set my hand this 6th day of Sept. 1902.

                    (Seal) J. M. Dean, J. P."
                

The deed executed by Annie Boykin Baxley and husband, M. A. Baxley, on August 31, 1933 with San Jacinto Lumber Company as grantee conveys "all of my right, title and interest in and to the Orsan Shaw Survey in Montgomery and San Jacinto Counties, Texas." Since said deed does not purport to convey the land itself but only the "right, title and interest" in the same, the deed is a quitclaim deed. Cook et al. v. Smith, 107 Tex. 119, 174 S.W. 1094, 3 A.L.R. 940; Houston Oil Co. of Texas et al. v. Niles et al., Tex. Com.App., 255 S.W. 604, and authorities cited in both cases.

Appellant makes the following statements in his reply brief:

"In our criticism of the acknowledgment of the Baxley-Kimbro deed we did not say or argue (1) that Annie Baxley was not known to the Justice of the Peace, Dean; (2) that she was not examined separately and apart from her husband touching her signature to the...