Hudson v. Caffey, 6106.

• Decision Date: 04 April 1944
• Docket Number: No. 6106.,6106.
• Citation: 179 S.W.2d 1017
• Parties: HUDSON et al. v. CAFFEY et al.
• Court: Texas Court of Appeals

179 S.W.2d 1017

HUDSON et al. v. CAFFEY et al.

No. 6106.

Court of Civil Appeals of Texas. Texarkana.

April 4, 1944.

Rehearing Denied April 13, 1944.

Appeal from District Court, Hopkins County; Chas. Berry, Judge.

Action in trespass to try title and to remove a cloud from title by Mrs. L. J. V. A. Caffey and others against E. R. Hudson and others. From a judgment for plaintiffs, defendants appeal.

Affirmed.

Grady Owen, of Brownwood, for appellants.

T. J. Ramey and J. C. Jackson, Jr., both of Sulphur Springs, for appellees.

HALL, Chief Justice.

This is an action in trespass to try title and to remove cloud from title instituted by appellees against appellants to a tract of land located in Hopkins County. Appellants answered by numerous exceptions, all of which are overruled, general denial, and plea of not guilty. Trial was to the court without a jury and resulted in a judgment removing the cloud cast by a certain deed hereafter discussed, and awarding to all the parties, both appellees and appellants, their proportionate undivided interest to the land in controversy, subject to the homestead rights of Mrs. L. J. V. A. Caffey.

In August, 1938, J. B. Caffey and wife, L. J. V. A. Caffey, conveyed their community homestead containing 126 acres, the land here in controversy, to their daughter Clara (Caffey) Hudson; said conveyance being a general warranty deed and containing the following provision:

"The undersigned especially reserves the privilege of remaining on said property or premises during their life time, and it is especially agreed and understood that the said Mrs. Clara Hudson is to assist in support and maintenance and find and provide for us suitable to our estate and situation during the term of our natural lives, providing always and upon the condition of the said Mrs. Clara Hudson, her heirs, executors or administrators shall fail or refuse to perform any of the agreements and stipulations above mentioned, then it shall be lawful for the said J. B. Caffey and wife, Mrs. L. J. V. A. Caffey, to take, repossess and enjoy the same in their former estate, otherwise this conveyance shall be in full force and effect at the death of the said J. B. Caffey and wife, L. J. V. A. Caffey; provided, further that in case of the death of the said Mrs. Clara Hudson, the said land herein described shall go to the sisters and brothers of the said Mrs. Clara Hudson, share and share alike, and to their heirs and assigns."

J. B. Caffey died in 1940, and his daughter Clara (Caffey) Hudson died in 1942. The record reflects further that Clara, about the year 1932, went to live with her parents, J. B. Caffey and wife, for the purpose of caring for them and continued to care for both of them until her father's death in 1940; and for her mother until her, Clara's, death in 1942. Since the death of Clara the other children have cared for their mother. E. R. Hudson and his sister, Mrs. Berta Mae Gentry, grandchildren of Mrs. L. J. V. A. Caffey and sole and only heirs of Mrs. Clara Caffey Hudson, deceased, are appellants. Mrs. L. J. V. A. Caffey, her children, and grandchildren, other than appellants, are appellees.

By their first point appellants assert that the trial court erred in overruling their exception to appellees' petition, because of the absence of a necessary and proper party-defendant, namely, the administrator of the estate of their deceased mother.

Appellees' action was in two counts: trespass to try title, and removal of cloud cast by the deed from J. B. Caffey and wife, L. J. V. A. Caffey, to Clara Hudson, referred to above. In the count to remove cloud from title, appellees among other things alleged "that the said Clara Hudson died intestate and left as her sole and only heirs at law one son, E. R. Hudson, and one daughter, Berta Mae Gentry the wife of Marion Gentry, the defendants herein, and no administration was had on the estate of Clara Hudson, and no necessity therefor." The record shows without dispute that there has been no administration of Clara Hudson's estate; that after her death her sole and only heirs, appellants here, sold all her property, paid the debts due by their mother's estate, and divided the balance remaining equally between them. These undisputed facts completely justify the trial court's finding "that there was no administration upon the estate of Clara Hudson, deceased, and no necessity therefor." In Low v. Felton, 84 Tex. 378, 19 S.W. 693, 696, it is said:

"There is no doubt that it is ordinarily necessary, on the death of a defendant, to make the executor or administrator of such person's estate party defendant, before the cause can proceed further; and, if the action be such that such legal representative cannot defend it alone, then the proper case in which to make the heirs defendants arises. If there is shown to be no necessity for administration, then, under a well-recognized exception to the general rule, it would only be necessary to make the heirs parties." (Italics ours.)

See also Stanley v. Stanley, Tex.Civ. App., 139 S.W.2d 876; French v. French, Tex.Civ.App., 148 S.W.2d 930, writ dismissed.

By several points appellants contend that the trial court erred in holding that the provision, copied above, of the deed constitutes a condition subsequent. This, in our opinion, presents the controlling issue in this case. Notwithstanding the quoted provision in...