Jacobs v. Chandler

• Decision Date: 25 February 1952
• Docket Number: No. 6195,6195
• Citation: 248 S.W.2d 825
• Parties: JACOBS et al. v. CHANDLER et al.
• Court: Texas Court of Appeals

Page 825

248 S.W.2d 825

JACOBS et al. v. CHANDLER et al.

No. 6195.

Court of Civil Appeals of Texas, Amarillo.

Feb. 25, 1952.

Rehearing Denied March 31, 1952.

Sanders, Scott, Saunders & Smith, Amarillo, Tuesburg & Armstrong, Pontiac, Ill., for appellants.

Underwood, Wilson, Sutton, Heare & Boyce, Amarillo, Daniel A. Costigan, Chicago, Ill., for appellees.

LUMPKIN, Justice.

This suit in trespass to try title was filed by the appellants, Royal W. Jacobs and the other children and heirs of James B. Jacobs and Dollie B. Jacobs, both deceased, against the appellees, Bessie Chandler and her children by D. H. Chandler, deceased, to establish title to a section of land situated partly in Potter County and partly in Randall County, Texas. (In their petition the appellants also named as defendants others whose interests are not material to this appeal).

The solution of this case depends primarily upon the construction given two deeds. Each deed involves the same land, each names D. H. Chandler as grantor and each names J. B. Jacobs as grantee. The description in the two deeds is virtually the same; the only material difference to be found in the deeds is the consideration. Both Chandler and Jacobs were citizens of the State of Illinois.

The appellants alleged that because of these two deeds the record title to the land was vested in them, while the appellees pleaded that the two deeds did nothing more than vest half of the record title in the appellants and left the other half of it in the appellees. Originally, the property was patented to James A. Dickenson, who conveyed it to A. W. Evans, who in turn conveyed it to John Doyle, who conveyed it to D. H. Chandler, the appellees' predecessor in ownership. The deed from Doyle to Chandler recites a consideration of $9,600, of which $3,200 was paid in cash and the balance of $6,400 was evidenced by three notes, each of which was dated March 4, 1907, and was due on or before one, two or three years from that date. The first two notes were in the amount of $2,133 each, while the third note was in the sum of $2,134. (On July 5, 1927, this third note came into the hands of J. B. Jacobs).

On March 1, 1909, D. H. Chandler and his wife, Bessie Chandler, executed the first of the two deeds involved in this case. It names J. B. Jacobs as grantee and recites the consideration thus:

'Eight thousand dollars cash in hand and one note for Two Thousand one hundred thirty four Dollars ($2,134.00) due on or before 1-2-3 years from date, said note executed by D. H. Chandler and payable to order of John Doyle, said note bearing interest at the rate of 8% per annum from date until maturity; 10% per annum from maturity until paid; interest payable annually; and providing for an additional amount of 10% as attorneys fees if placed in the hands of an attorney for collection.'

The deed describes the property conveyed:

'The undivided half interest in a certain tract of land in Randall County and Potter County, Texas, known as abstract No. 33 and abstract No. 974, survey No. 53, certificate No. 653, block No. 2, grantee A. B. & M., containing 640 acres of land, being 134 acres in Randall County and 506 acres in Potter County, Texas, as shown by State Printed Abstract Book No. 27, on pages No. 183 and 178, respectively.'

(Mrs. Chandler's acknowledgment to this deed is not in the statutory form prescribed for a married woman in Texas).

On May 3, 1909, D. H. Chandler and Bessie Chandler executed the second deed, which likewise names J. B. Jacobs as grantee. It describes the consideration thus:

'Forty eight hundred dollars paid and secured to be paid by J. B. Jacobs, as follows: cash in hand paid the sum of $3,733.50, the receipt of which is acknowledged, and the assumption and agreement to pay an undivided one half of a certain note signed by said D. H. Chandler, payable to order of Jno. Doyle, dated Mch. 4, 1907, due three years after said date, 08% interest, 10% atty. fee clause; draws 10% interest after due, for the sum of $2,134.00, and is the last note shown in deed to said Chandler by said Doyle of same date, the other two notes being paid; said deed recorded in Vol. 32, page 416 of Potter County Deed Records, and here referred to.'

The property is described as follows:

'All that certain one undivided one half of the following tract of land, situated in Randall and Potter Counties known as abstract No. 33 and abstract No. 974, survey No. 53, certificate No. 653, block 2, A. B. & M. grantee, containing 640 acres of land, of which 134 acres is in Randall County and 506 acres in Potter County, Texas, shown by State Printed Abstract Book No. 27, on page 183 and 178, respectively.'

(The acknowledgement to this second deed is in the statutory form prescribed for a married woman in Texas).

The second deed, i. e., the deed of May 3, 1909, was filed for record in Potter County on March 5, 1910, but the first deed-i. e., the deed of March 1, 1909-was not filed for record in Potter County until June 28, 1926.

In addition to alleging a regular chain of title to the land, the appellants sought to establish their title by adverse possession and, in the alternative, sought to foreclose the unpaid vendor's lien note. The appellees by cross-action also sued in trespass to try title, asked for a partition and asked for an accounting of rents and revenues which the appellants had received after 1932 to the exclusion of the appellees.

Trial was to a jury. In answer to special issues the jury found that it was the intention of the original parties, D. H. Chandler and J. B. Jacobs, that only the deed of May 3, 1909, should be recorded and that only one-half interest in the land should vest in Jacobs. The jury further found that the appellants held the section of land under the three, five and ten-year statutes of adverse possession.

Special Issue No. 5, which was submitted to the jury, reads as follows:

'What amount of money, if any, do you find from a preponderance of the evidence, to be due plaintiffs, Royal W. Jacobs and others, in payment of the one-half part of note No. 3, in the amount of $2,134 described in the deed of May 3, 1909, computing interest in each year following payment of said note, if it was paid, by J. B. Jacobs upon whatever was paid by Jacobs with respect to said one-half part, but allowing credit in each year for the one-half part of any rentals paid remaining after the payment of any taxes paid therefrom? Answer by stating the amount, if any, found by you.'

In answer to this issue the jury wrote this sum: $8,820.75.'

The trial court granted the appellees' motion for judgment non obstante veredicto and disregarded the jury's findings on adverse possession and entered judgment awarding the appellees an undivided one-half interest in the section of land subject, however, to the obligation to reimburse the appellants in the amount of $8,821.75, together with interest and an attorney's fee of $882.08. The court decreed that the other undivided one-half interest belongs to the appellants. The court then ordered the land partitioned, appointed a receiver, and ordered the whole section of land sold. In addition to the amount the appellants would receive for the sale of their one-half interest, the court further decreed that they be paid the sum of $8,821.75, together with interest and an attorney's fee of $882.08, from the money obtained by the appellees as a result of the sale of their undivided one-half interest. The balance of the proceeds thus obtained was to be paid to the appellees. From this judgment the appellants have duly perfected this appeal.

On this appeal the appellants contend that since each of these deeds conveyed a separate half interest, together they convey to J. B. Jacobs the entire title to the section of land; or, if this be not true, then they insist they have acquired the appellees' half of the property by adverse possession. The appellees, on the contrary contend that it is obvious from the fact of the two deeds that they convey not separate one-half interests but the same undivided one-half interest only; that the deed of May 3, 1909, was a correction deed; or, if this be incorrect as a matter of law, then the deeds are ambiguous since they may be construed as conveying either separate half interests or the same half interest; therefore, parol evidence is admissible to resolve the ambiguity. But the appellants insist that before the appellees may assert such a position, they must first plead and prove that one of the deeds was the result of fraud, accident, mutual mistake or ambiguity and that it must be set aside or reformed. The appellants have pleaded the four-year statute of limitation which they allege bars the appellees from setting aside or reforming either of the two deeds.

It is our opinion, at the outset, that the second deed, dated May 3, 1909, is nothing more than a correction deed executed in lieu of the first deed dated March 1, 1909. The two deeds do not convey separate interests, but each deed describes and conveys the same undivided half interest in the same section of land. The only material difference in the two is the consideration. If it had been intended that the second deed convey a half interest separate from that conveyed by the first deed, then why did not the grantee Jacobs assume the entire indebtedness owed by Chandler to Doyle rather than agree to pay only one-half of the note payable to Doyle and signed by Chandler? The fact that Jacobs agreed to pay only one-half of the third and last note to Doyle indicates to us (1) that Jacobs was acquiring a one-half interest in the land and not the full title, and (2) that the one-half interest conveyed by the second deed was the same one-half interest conveyed by the first deed. Moreover, the deed of March 1, 1909, shows on its face why a deed was necessary. In the first place the deed of March 1, 1909, contains an inaccurate description of the debt Jacobs was to assume; and...