Leal v. Leal

• Decision Date: 14 March 1928
• Docket Number: (No. 7962.)
• Citation: 4 S.W.2d 985
• Parties: LEAL v. LEAL.
• Court: Texas Court of Appeals

4 S.W.2d 985

LEAL v. LEAL.

(No. 7962.)

Court of Civil Appeals of Texas. San Antonio.

March 14, 1928.

Rehearing Denied April 4, 1928.

Error from District Court, Bexar County; Robt. W. B. Terrell, Judge.

Action by E. R. Leal against Santos Leal, Jr. Judgment for defendant, and plaintiff brings error. Affirmed.

Drew Pruitt, of San Antonio, for plaintiff in error.

George G. Clifton, J. H. Ragsdale, and J. T. Sluder, all of San Antonio, for defendant in error.

COBBS, J.

Plaintiff in error sues defendant in error for an accounting and for damages. It is the same cause of action asserted in Leal v. Leal, 291 S. W. 340, once before this court. That case shows the nature of the suit, except that the pleading was amended in this case. It was designated plaintiff's fifth original petition, upon which this case proceeded to trial. The amended pleading does not materially change the original pleading nor the cause of action. Defendant in error answered by general demurrer, pleas of two, three, and five years' limitation, and general denial. For special answer alleged that he had acquired the interest of plaintiff, E. R. Leal, in the estate of Santos Leal, Sr., by having purchased the same of A. A. Gray, on October 20, 1909, who executed his general warranty deed conveying to him all of the undivided interest of E. R. Leal in the estate of Santos Leal, Sr. On June 19, 1908, said E. R. Leal conveyed such interest to the said A. A. Gray.

Prior to February 5, 1918, Santos Leal purchased of the plaintiff, E. R. Leal, all his right, title, and interest in and to the estates of Santos Leal, Sr., and Joaquin Leal, and on that date said E. R. Leal made, executed, and delivered unto Santos Leal his certain release receipt and quitclaim, acknowledging the full and final payment of all sums due him out of the community estate of Santos Leal, Sr., and Joaquin Leal. That at her death the mother, Joaquin Leal, owned no estate, having divided it among her children; E. R. Leal having received his full share and interest therein.

By a verified supplemental pleading plaintiff denied the execution of the receipt, release, and quitclaim deed of date February 5, 1918, and alleged that the same was a forgery.

The case was submitted to the jury on three special issues, and they were answered in favor of defendant. The court thereupon entered judgment in favor of defendant in error.

Plaintiff in error presents an original brief containing 59 pages and a supplemental brief containing 14 pages.

This seems to be a fact case, but plaintiff in error in addition has presented a brief containing 31 assignments of error and 43 propositions based thereupon.

Plaintiff in error's first and second propositions complain substantially that the two issues were not proper because there was no evidence to show that Santos Leal purchased E. R. Leal's expectancy or interest in his mother's estate. That issue was properly submitted to the jury, and they found upon sufficient evidence in the affirmative. So it was a proper issue to submit to the jury, and their finding is supported by the evidence, and the propositions are overruled.

The third proposition challenges as error the submission of the third special issue to the jury, alleging it involved a question of law for construction alone by the court, claiming the deed "shows on its face that it is a quitclaim deed, free from doubt and uncertainty, and hence purely a question of law to be determined by the court as to the legal effect and meaning of said instrument, and what interest in said real estate was thereby conveyed to defendant." The proposition is not clear, What is meant here by "free from doubt and uncertainty?"

The deed under discussion is as follows:

"That I, Emilia R. Leal of the county of Bexar and state of Texas, for and in consideration of the sum of two thousand dollars, to me in hand paid by Santos Leal of the county of Bexar and state of Texas, the receipt of which is hereby acknowledged, do, by these presents, bargain, sell, release and forever quitclaim unto the said Santos Leal and also acknowledge the same was for the 1st and 2d distribution of the following estate his heirs and assigns, all my right, title and interest in and to that certain tract or parcel of land lying in the county of Bexar and state of Texas, described as follows, to wit:

"Lots Nos. 10, 11, 12, 14, 15 & 16, in block No. 20. N. C. B. No. 301.

"To have and to hold the said premises, together with all and singular the rights, privileges and appurtenances thereto in any manner belonging, unto the said Santos Leal his heirs and assigns forever, so that neither I the said Emilio Leal nor my heirs, nor any person or persons claiming under me shall, at any time hereafter, have, claim or demand any right or title to the aforesaid premises or appurtenances, or any part thereof.

"Witness my hand at San Antonio, this 5th day of February A. D. 1918."

The issue was, no doubt, submitted to the jury in response to plaintiff in error's insistence that the title to the property did not pass thereunder. Under our statute (Rev. St. 1925, arts. 1293 and 1297), no particular form is required to convey title to land.

There is language in this conveyance that brings it within the purview of the case of Cook v. Smith, 107 Tex. 119, 174 S. W. 1094, 3 A. L. R. 940. The discussion by Mr. Justice Phillips, who writes the opinion, does not appeal to the writer clearly as to what constitutes a quitclaim deed conveying a chance of title in contradistinction to a conveyance of land itself. On that subject the writer prefers the views presented by Presiding Judge Acker, in Garrett v. Christopher, 74 Tex. 453, 12 S. W. 67, 15 Am. St. Rep. 850,...