Holden v. Dahlberg

• Decision Date: 08 February 1950
• Docket Number: No. 12013,12013
• Citation: 228 S.W.2d 889
• Parties: HOLDEN et al. v. DAHLBERG et al.
• Court: Texas Court of Appeals

Page 889

228 S.W.2d 889

HOLDEN et al. v. DAHLBERG et al.

No. 12013.

Court of Civil Appeals of Texas, San Antonio.

Feb. 8, 1950.

Rehearing Granted March 15, 1950.

Rehearing Overruled April 12, 1950.

Ward & Brown, Corpus Christi, Allen Wood, Corpus Christi, for appellants Nana and Harriet Holden.

Vinson, Elkins, Weems & Francis, Houston, for appellant B. I. Dahlberg.

McCampbell, Wood & Kirkham, Corpus Christi, Neel, King & Rachal, Corpus Christi, Black & Stayton, Austin, Robert B. Wallace, Corpus Christi, for appellees.

BROETER, Justice.

This is a suit in trespass to try title. Nana Holden and Harriet Holden sued B. I. Dahlberg, Steve Paul and D. R. Roark, who was afterwards dismissed from the suit, to recover the entire title to twenty-one and one-half outlots of the Fulton Farm and Outlots Subdivision, and certain lots and blocks in the town of Fulton, all situated in Aransas County, Texas. In this case there were two appeals perfected, one by the plaintiffs, Nana Holden and Harriet Holden, and the other by defendant B. I. Dahlberg. For convenience, the parties will be referred to herein as plaintiffs and defendants.

The agreed common source of title is Harriet G. Fulton, and the plaintiffs in establishing their chain of title introduced a deed executed by Harriet G. Fulton on July 16, 1906, whereby she conveyed the land in controversy, and other land, to her three daughters, namely, Hattie S. Holden, Lee C. Fulton and Annie W. Holden, and the plaintiffs, Nana Holden and Harriet Holden, further offered evidence that they and Linda Mae Beaman were the only children of Annie W. Holden, and own title, as heirs of Annie W. Holden, who died intestate July 24, 1935, and by deed from their sister, Linda Mae Beaman, dated March 30, 1936.

The defendants B. I. Dahlberg and Steve Paul claim title through a sale by W. H. Young, a substitute trustee appointed under a deed of trust executed by Nana Holden and Harriet Holden on March 6, 1930, and to show their chain of title said defendants offered a deed from Annie W. Holden to her three daughters, Nana Holden, Harriet Holden and Linda Mae Beaman, dated November 5, 1928, and two deeds, one dated March 6, 1930, and the other, March 7, 1930, both from Linda Mae Beaman and R. J. Beaman to Nana Holden and Harriet Holden. They also offered deed of trust from plaintiffs to John S. McCampbell, trustee for the benefit of Manufacturers Acceptance Corporation, dated March 6, 1930; resignation of John McCampbell, Trustee, dated July 21, 1933; appointment of W. H. Young, Substitute Trustee, by B. I. Dahlberg, dated July 26, 1933; Deed from W. H. Young, Substitute Trustee, to B. I. Dahlberg, dated March 6, 1936; assignment of note and lien from Manufacturers Acceptance Corporation to B. I Dahlberg, dated May 18, 1936, and a deed from said B. I. Dahlberg to Steve Paul, dated October 1, 1936.

Other instruments were introduced in evidence by the parties in the trial, which will be mentioned or referred to in this opinion, if necessary, but those enumerated above outline the title on which the respective parties rely for recovery.

The pleadings in this case are numerous and because of our confirmed opinion that this case should be reversed we will not quote the pleadings, but will limit our reference thereto by stating the substance of the claims as made raising the points which we deem require a reversal of this judgment. Plaintiffs claim that the deed dated November 5, 1928, from Annie W. Holden to Nana Holden, Harriet Holden and Linda Mae Beaman, fails to sufficiently describe the land intended to be conveyed, and same was therefore invalid. They also claim that the deed of March 6, 1930, executed by Linda Mae Beaman and husband, R. J. Beaman, was invalid an account of an insufficient description of the land intended to be conveyed; that the deed executed by Linda Mae Beaman and husband, dated March 7, 1930, to the plaintiffs, was invalid because of a defective acknowledgement; and that such deeds of March 6 and 7, 1930, conveyed no title because the Beamans had none at that time. Plaintiffs claim also that the deed dated March 30, 1936, executed by Linda Mae Beaman and husband, R. J. Beaman, to plaintiffs, given to perfect the conveyance dated March 7, 1930, did not relate back and serve to pass title to plaintiffs as of March 7, 1930, and that the deed of trust executed by plaintiffs to John S. McCampbell, Trustee, dated March 6, 1930, did not encumber any interest in the property described therein, because they had no title when they executed the same and that it was a quitclaim deed and did not convey any after-acquired title. They also attacked such deed of trust for other reasons not necessary to mention here, and claimed that the foreclosure sale of the land to B. I. Dahlberg was void because W. H. Young, substitute trustee, had not been appointed by the holder of the note secured thereby and no other grounds. Steve Paul claimed to be an innocent purchaser of the land in controversy from B. I. Dahlberg, who was the purchaser under the substitute trustee's sale.

The trial court held the description of the land in the deed from Annie W. Holden to Nana Holden, Harriet Holden and Linda Mae Beaman, dated November 5, 1928, was valid. That the deed dated March 30, 1936, executed by Linda Mae Beaman and husband, R. J. Beaman, to plaintiffs, given to perfect the conveyance dated March 7 1930, related back and served to pass title to plaintiffs as of March 7, 1930, and was encumbered by the deed of trust of that date, and that such deed of trust was not a quitclaim deed; that the sale under the deed of trust was void and that Steve Paul was an innocent purchaser, and rendered judgment that plaintiffs recover complete title from B. I. Dahlberg, but that they recoved nothing from Steve Paul. Findings of fact and conclusions of law were filed by the judge. From this judgment the plaintiffs and B. I. Dahlberg have appealed.

No question is raised by defendants as to the sufficiency of the proof offered by the plaintiffs as outlined above, and as a result of such proof it is the opinion of this Court that, unless the defendants are entitled to recover under their chain of title and other evidence, the plaintiffs became the owners of an undivided one-third of the property deeded by Harriet G. Fulton on July 16, 1906, to her three daughters, and that such undivided one-third was acquired by them, two-ninths by inheritance from their mother, Annie W. Holden, who died July 24, 1935, and one-ninth by the deed to them from Linda Mae Beaman and R. J. Beaman dated March 30, 1936. The first point presented to us by plaintiffs is as to the validity of the deed dated November 5, 1928, from Annie W. Holden to Nana Holden, Harriet Holden and Linda Mae Beaman. This deed was offered in evidence by defendants and is a necessary link in their chain of title.

The sufficiency of the description of the land or interest in land in this deed is challenged. The trial court held such deed sufficiently described the land the grantor sought to convey, and error is assigned by plaintiffs on such ruling. This deed, after eliminating formal parts, recites that Annie W. Holden does give, 'grant, bargain, sell and convey to the said Harriet Holden, Nana Holden and Mrs. Linda May Beaman, an undivided interest in all of all those certain tracts, pieces or parcels of land owned by me or to which I have any claim, demand or interest, situated in the Counties of Aransas and Webb, in the State of Texas, together with all and singular to eights, members and appurtenances to the same in any manner belonging.' And, following the habendum clause, the deed further recites: 'Being an undivided interest in one-third of the same premises conveyed by Harriet G. Fulton to Hattie S. Holden, Lee C. Fulton and Annie W. Fulton by deed dated July 16th, 1906, recorded in Volume Y, page 545 of the Deed Records of San Patricio County, Texas, together with any property that may be in my name or come to me by inheritance from the said Harriet G. Fulton, above referred to, and from Elbridge Gerry Holden, my husband, now deceased, in the Counties of Aransas and Webb, State of Texas.'

We are of the opinion that the description of the land as contained in this deed is insufficient to convey any title. It is established by the record herein that Annie W. Holden, formerly Annie W. Fulton, was on the date of this deed the owner of an undivided one-third of the land conveyed to her and her two sisters by their mother, Harriet G. Fulton. It is not disputed that the farm lots, town lots and blocks involved in this suit were a part of the land so conveyed. Plaintiffs sue for the whole of the title to such lots, but they and defendants, by introducing in evidence the deed from Harriet G. Fulton to Annie W. Holden and her two sisters, established that plaintiffs would either by inheritance or deed from their mother acquire only two-ninths of the property in controversy.

The granting clause in the deed from Annie W. Holden, dated November 5, 1928, to these plaintiffs insufficiently describes the land sought to be conveyed, because it does not specify the extent of the interest conveyed.

In Carter & Brothers v. Ewers, 133 Tex. 616, 131 S.W.2d 86, 123 A.L.R. 908, in an opinion by Judge Taylor which was adopted by the Supreme Court of Texas, it is said:

'The land described in the deed is 'an undivided interest in and to a subdivision of 200 acres of a survey in the name of Swiny, situated in the County of Polk, State of Texas.'

'The description of the 200-acre subdivision is such that if the deed had purported to convey the subdivision itself rather than 'an undivided interest' therein, the instrument would not fail as a conveyance on account of uncertainty of description, as was in effect held by the Court of Civil Appeals. It contains no language however indicating the extent of the interest in question, other than that necessitating the...