Kearse v. Kearse

• Decision Date: 28 October 1925
• Docket Number: (No. 688-4241.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 276 S.W. 690
• Parties: KEARSE v. KEARSE et al.
• Court: Texas Supreme Court

276 S.W. 690

KEARSE v. KEARSE et al.

(No. 688-4241.)^*

Commission of Appeals of Texas, Section A.

October 28, 1925.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by Rosetta L. Kearse against R. C. Kearse and others. Judgment of Court of Civil Appeals, affirming judgment below, and plaintiff brings error. Judgment of district court and of Court of Civil Appeals affirmed.

For opinion of Court of Civil Appeals, see 262 S. W. 561.

J. C. Lumpkins and G. C. Groce, both of Waxahachie, for plaintiff in error.

C. M. Supple and Will Hancock, both of Waxahachie, for defendants in error.

Statement of the Case.

NICKELS, J.

Calhoun and Rosetta Kearse were lawfully married in 1869. The marital relation was not extinguished otherwise than by the death of Calhoun in September, 1909. There was a continued living apart after September, 1898; Rosetta without just cause having brought this about. In January, 1893, Calhoun Kearse purchased 144 acres of land, situated in Ellis county; the consideration being $200 paid in cash and $2,059.80 "to be paid," evidenced by a series of notes payable yearly from 1894 to 1899, inclusive. None of the deferred payments were made, except as to some interest, and in June, 1898, Mrs. Bibbee, a daughter, purchased the notes at the request of Calhoun. In September, 1898, shortly after the separation, Mr. and Mrs. Kearse executed to Mrs. Bibbee a warranty deed, conveying the 144 acres, in consideration of cancellation of the notes. Within a short time Rosetta Kearse requested Mrs. Bibbee to "sell the land back to her," and this led to a conveyance by warranty deed January 11, 1899, from Mrs. Bibbee to Rosetta. The recited consideration was $3,100, which was "to be paid," and which was evidenced by a series of 10 notes, one being payable each year thereafter. The recited consideration in whole or part was never paid otherwise than in the manner to be stated. Calhoun Kearse had no connection whatever with these transactions between Mrs. Bibbee and Rosetta until January 5, 1901. On that date Calhoun joined Rosetta in a conveyance of a certain 80 acres (of the 144-acre tract) to Mrs. Bibbee. The recited consideration of this conveyance was $1,600 cash. The 80 acres thus conveyed to Mrs. Bibbee was, in turn, conveyed by her to R. C. Kearse (November, 1903) and by him (October, 1904) to his father, Calhoun. Calhoun Kearse died September __, 1909. In the trial court and Court of Civil Appeals the 80 acres referred to was treated as being community property, and no question with respect to it remains in the case. Those courts also ruled the 66 acres to belong to the community estate of Calhoun and Rosetta, and that holding is the error now claimed. See 262 S. W. 561, for the opinion of the Court of Civil Appeals.

Opinion.

In substance, the claim of the 66 acres as separate property of Rosetta Kearse rests upon two contentions: (a) The import of the deed of January 11, 1899, is conclusive of that status; (b) Mrs. Bibbee's act effected a gift to Rosetta.

1. Article 1108, R. S. 1911, in part, declares that no person shall "be restrained from inserting any clause or clauses in conveyances hereafter to be made, that may be deemed proper and advisable by the purchaser and seller." The deed under review recites the grant as being to Rosetta Kearse "as her separate property," and the habendum as being "to the said Mrs. Rosetta Kearse as her separate property, her heirs and assigns forever." Upon authority of the statute, as upon that liberty of contract vouchsafed in requirements of due process, it is asserted the deed indubitably attaches to the property a separate character.

The due process, whose absence is suggested if a different effect be given the deed, is supplied by constitutional provision antedating the transaction. If the property, despite the language used in the deed, is community, it is so because of those constitutional provisions (and pre-existing statutes), with knowledge of whose existence and meaning the parties contracted. And for like reason, if article 1108, R. S., means to give a "purchaser and seller" the power to exclude from the community estate property which section 15, art. 16, of the Constitution, requires to be included, manifestly the statute is void. But no such interpretation can rightly be given it. Constitutional limitations are read into a statute such as this so as to restrict literalism to proper bounds. The article in its application here is to be viewed as if it read, "Except as otherwise provided in section 15, article 16, of the Constitution, the insertion of any clause deemed proper or advisable by the purchaser and seller is not inhibited."

The insistence upon the form of the deed as conclusively defining the property is based upon a misinterpretation of the opinions in Zorn v. Tarver, 45 Tex. 519; Id., 57 Tex. 388; Kirk v. Navigation Co., 49 Tex. 213; Morrison v. Clark, 55 Tex. 443; Ullmann v. Jasper, 70 Tex. 446, 7 S. W. 763; Laufer v. Powell, 30 Tex. Civ. App. 604, 71 S. W. 549; Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825; and Goldberg v. Zellner (Tex. Com. App.) 235 S. W. 870. In the Zorn Case evidence extrinsic the deed was considered, and the trial court's finding that the proof rebutted the presumption that the land "was bought with community property" was approved. 57 Tex. 391. There the grantor, with consent and aid of the husband, made a gift to the wife, although she adopted an indirect method of doing it.

Kirk v. Navigation Company involved the rights of innocent purchasers. The deed named the wife as grantee, and recited the consideration was "paid by her," but it did not say the consideration was paid with her separate funds. It was held the recitals were insufficient to charge the subsequent purchaser with notice that the land was not community property, and therefore extraneous proof to show its separate character was improper.

Morrison v. Clark: The husband made a gift of property to his wife, and then "for her" traded the property for land. At his instance the conveyance was made "to her, and her only sole use and benefit." Afterward, and to a subsequent purchaser, he declared "he had no title or interest in the land." The opinion (written by the Commission of Appeals) contains language which is subject to the interpretation that parol evidence to show the property's community status would be inadmissible in the case of such a deed, since the deed was so made at the husband's instance, and without any recital which might indicate the transaction was not intended to effect a gift. But, after using that language, the Commission of Appeals then examined the extrinsic evidence in the record, and held it to be sufficient to show a gift to the wife.

Ullmann v. Jasper: A deed there under consideration was made "to the separate use of Mrs. Grant." Mrs. Grant and her husband conveyed the land to Jasper, and thereafter Ullmann attempted to subject it to payment of judgments against the husband. The court said that:

"If, in fact, the purchase was made by her [i. e., with her separate funds] the deed took effect in conveying the lots to her separate estate.

In Laufer v. Powell, the Court of Civil Appeals simply construed a deed containing this language: "To have and to hold and enjoy and dispose of the said land in any and every manner" the said Mary "may think proper for her own use, benefit, and behoof," and held it effective to vest the property in the wife (Mary) as her separate estate. No issue of a contrary intent or effect was raised in pleading or proof except as based on the language of the deed itself. Consequently, the court made no ruling as to the propriety of extraneous evidence.

Kahn v. Kahn: Property was conveyed (by a third person) to the wife for a consideration of $525, of which $200 was paid...