Janes v. Gulf Production Co.

• Decision Date: 09 March 1929
• Docket Number: (No. 1722.)
• Citation: 15 S.W.2d 1102
• Parties: JANES et al. v. GULF PRODUCTION CO. et al.
• Court: Texas Court of Appeals

Page 1102

15 S.W.2d 1102

JANES et al. v. GULF PRODUCTION CO. et al.

(No. 1722.)

Court of Civil Appeals of Texas. Beaumont.

March 9, 1929.

Rehearing Denied March 20, 1929.

Appeal from District Court, Jefferson County; J. D. Campbell, Judge.

Suit by Pauline Janes and others against the Gulf Production Company and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Holland & Cousins, of Beaumont, for appellants.

Orgain & Carroll, of Beaumont, John E. Green, Jr., and P. O. Settle, both of Houston, and F. J. & C. T. Duff and Oswald S. Parker, all of Beaumont, for appellees.

HIGHTOWER, C. J.

This suit was instituted by appellants against appellees as an action in trespass to try title, involving an undivided one-half interest in certain subdivisions of the John Douthit survey in Jefferson county, Tex. The land is a part of Spindle Top oil field. Appellants also sued for the value of one-half of the oil taken by appellees from the land in controversy, which, on the statement made by them from the record, was in excess of $6,000,000. Appellants are the heirs, or hold under the heirs, of Henry S. Janes. In July, 1866, David Jarrett executed and delivered to his daughter, Mrs. Martha D. Janes, wife of Henry S. Janes, the following deed:

"The State of Texas, County of Jefferson.

"Be it known that I, David Jarrett of the State and County aforesaid, for and in consideration of the love and paternal affection I have and entertain for my daughter, Martha D. Janes (wife of Henry S. Janes), of the same State and County, and in further consideration of her filial kindness and attention to me during my old age, have granted, transferred, donated and conveyed by these presents unto the said Martha D. Janes and her heirs and assigns to have and to hold forever, all of that certain unconditional Land Certificate Numbered (124) One Hundred & Twenty-four, 4th class, and issued by the Board of Land Commissioners of Bowie County, Texas, on the 2nd day of December, A. D. 1844, to John Douthit, said certificate is for 320 acres of land, was transferred by said Douthit to me on the 28th day of Febry. A. D. 1845, and has been filed by me for survey & location with the Surveyor of Jefferson County. And I now relinquish to my said daughter and her heirs and assigns all my right, title and interest in and to said certificate & authorize her at once to assume the control and management of the said certificate and the interest hereby conveyed.

"Given under my hand near Beaumont, Texas, (with the erasure & interlineation in the foregoing line), this — day of July, A. D. 1866.

                                       "David Jarrett, S. L
                

"In presence of:

                    "J. W. Jarrett
                    "W. T. Simmons."
                

This certificate was located on the land in controversy. In 1884, after the death of Henry S. Janes in 1880, Mrs. Martha D. Janes sold this land as her separate estate, and by her deed undertook to convey to her grantee a full, perfect, fee-simple title to all interest in the land. Appellees hold under this deed. At his death, Henry S. Janes left surviving him six children. The heirs of these children, appellants here, claiming the property as part of the community estate of Henry S. Janes and Martha D. Janes, sued for an undivided one-half interest. This claim was advanced for the first time only a short while before the institution of this suit in 1927. On the disposition we are making of the case, it is sufficient to refer only to appellees' plea of not guilty. The trial was to a jury. On a full development of all issues raised by the pleadings, a verdict was instructed for appellees on the theory that the above-quoted deed was unambiguous in its terms, and by its own language vested the certificate in Mrs. Martha D. Janes as her separate property. This appeal is from judgment in appellees' favor entered on the instructed verdict.

While appellees, under their pleas and the evidence in support thereof, offer many propositions for affirming the judgment, we agree with them that the judgment can be affirmed on the trial court's construction of the deed in question.

Appellants have filed a motion asking that we correct the statement of facts as certified to us from the trial court, and praying for a writ of certiorari directing that the lower court send up a correct copy of the Jarrett deed. Appellants assert that as offered in evidence the granting clause of this deed read: "have granted, bargained, transferred, donated and conveyed." The copy before us does not contain the word "bargain." The motion is of great interest to appellants, as their most important argument in construction of the deed assumes that the granting clause contained the word "bargain," and on that assumption construe the words "donated" and "bargained" together, as implying an onerous title. Appellees contest this motion by affidavits asserting that the copy in the statement of facts, which is the one we have given above, is the one actually offered in evidence, and, in fact, is a copy of the original deed. We cannot consider the affidavits of either party, as we have no jurisdiction to entertain appellants' motion. Where a statement of facts has been duly certified to us in the form required by law, we are without jurisdiction to correct a mistake therein. We are absolutely bound by the facts thus certified. Only the lower court has jurisdiction to correct such a mistake. Gerneth v. Lumber Company (Tex. Com. App.) 300 S. W. 17, 20, and authorities there cited. But, if in error in this proposition, and if it is our duty to determine the issue raised by the affidavits, the preponderance of the evidence supports the record as filed. The motion to correct is overruled.

Affirming this case solely upon the construction of the Jarrett deed as written, it becomes our duty to ascertain from the language of the deed the intent of the parties in its execution and delivery. In ascertaining this intent, we must give the words used their fair and reasonable meaning, according them the interpretation given by common usage, having in view the circumstances of their use and the context. The intent must not be gathered from any particular part of the instrument, but from the entire instrument, giving effect to every word therein. The intent should be consistent with all the terms used and with the scope and subject-matter of the deed. Since, in our judgment, the expressed meaning is plain, it will control. 18 C. J. 256, 257, 258. These general propositions were recognized by the Galveston Court of Civil Appeals in West v. Carlisle, 199 S. W. 518: "A safe and accurate interpretation of words used in a contract may be had by viewing the subject of contract as the mass of mankind would view it." To ascertain the intent of this deed, we must give effect to and ascertain the meaning of the following significant portions: (a) The parties to the deed; (b) consideration; (c) the granting clause.

The status of property in Texas is governed by our Constitution and statutes. Property takes its status as separate or community at the time of its acquisition. The status is fixed by the facts of its acquisition at the time of acquisition. McDonald v. Stevenson (Tex. Civ. App.) 245 S.W. 779; Creamer v. Briscoe, 101 Tex. 490, 109 S. W. 911, 17 L. R. A. (N. S.) 154, 130 Am. St. Rep. 869; Stiles v. Hawkins (Tex. Com. App.) 207 S. W. 91; Allen v. Allen, 101 Tex. 365, 107 S. W. 528. By the law at the time this property was acquired, a conveyance to either marital partner on an onerous consideration, flowing from the community, made the property conveyed a part of the community assets. But a deed of gift made the property the separate estate of the marital partner to whom it was conveyed. Yates v. Houston, 3 Tex. 433. In that case, defining an onerous title, it was said: "An onerous title is defined to be that by which we acquire anything, paying its value in money, or in any other thing, or in services, or by means of certain charges and conditions to which we are subjected." In 28 C. J. 620, the following definition was made of a gift: "A gift is a gratuity and not only does not require a consideration, but there can be none. If there is a consideration for the transaction it is not a gift." It follows, as said in Kearse v. Kearse (Tex. Com. App.) 276 S. W. 693: "`Gift' and `onerous consideration' are exact antitheses."

The usual presumption is that a conveyance to either marital partner during coverture, unless expressly negatived by appropriate language, makes the property community. However, this presumption may be met and, by proof, the actual status of the property shown. Ordinarily, the fact that the conveyance is to the wife raises no presumption of separate estate in her. But our decisions recognize certain exceptions to this general rule of construction. For instance, where the conveyance is of chattels, as in this case, by a father to his daughter, after marriage, a gift to the daughter as her separate estate is absolutely presumed, unless the deed of conveyance contains appropriate language to the contrary. This rule was thus stated, recognized, and given application in Owen v. Tankersley, 12 Tex. 405: "It appears to be well established upon authority, that when slaves or other chattels, pass from a parent to a daughter on or after marriage, a gift to the daughter is to be presumed, and that this is absolute and unqualified, unless there be some express condition or stipulation at the time of the gift to the contrary." It was said further in that case that it made no difference what the father intended; "the only question is what he did. His acts are the best, as they are the only conclusive evidence of his intentions."

If the issue before us was one of fact, the rule thus announced would put appellants under the burden of proving the community status of the property. But as the question is one of law on the face of the deed, the law requires us to construe it most favorably to Mrs....