Lindsay v. Clayman

• Decision Date: 05 November 1952
• Docket Number: No. A-3652,A-3652
• Citation: 151 Tex. 593,254 S.W.2d 777
• Parties: LINDSAY v. CLAYMAN, et al.
• Court: Texas Supreme Court

Page 777

254 S.W.2d 777

151 Tex. 593

LINDSAY v. CLAYMAN, et al.

No. A-3652.

Supreme Court of Texas.

Nov. 5, 1952.

Rehearing Denied Dec. 10, 1952.

Elledge, Elledge, Urban & Elledge, Houston, for petitioner.

H. Fletcher Brown, Houston, for respondents.

GRIFFIN, Justice.

On February 14, 1939, E. W. and Frances M. Lindsay were husband and wife and had been for a number of years. On that date a land sale contract was entered into between Houston Land & Trust Company and 'Mrs. Frances M. Lindsay and husband E. W. Lindsay' whereby the Land Company agreed to sell to Mrs. Lindsay 'for and in consideration of the sum of $950 to be paid by Mrs. Frances M. Lindsay out of her own separate fund * * * as her separate property and for her own separate use and estate' Lots 1 and 2, Block 6, Brookline Addition to Houston, Harris County, Texas. This was an installment sales contract whereby Mrs. Frances M. Lindsay paid down $50 cash 'out of her own separate funds' and agreed to pay a $900 balance in monthly installments of not less than $15. The Land Company agreed that upon full payment of the purchase price 'to promptly execute and deliver to the said Frances M. lindsay a General Warranty Deed conveying said property to her as her separate property * * *.' The deferred payments were made and on March 15, 1945, the Houston Bank & Trust Company, successor to the Land Company, executed and delivered the Warranty Deed which recited 'for and in consideration of the sum of Nine Hundred Fifty Dollars ($950.00) cash to it paid by Mrs. Frances M. Lindsay, out of her own separate funds, * * * does Grant, Sell and Convey unto the said Mrs. Frances M. Lindsay, as her separate property and for her own separate use and estate * * * (then follows a description of the property) * * * To have and to hold * * * unto the said Mrs. Frances M. Lindsay, as her separate property and estate, her heirs and assigns, forever * * *'.

The Lindsays continued to live together as husband and wife at all times after February 14, 1939 until her death in 1947. As to the property above described, Mrs. Lindsay died intestate, leaving surviving her no issue and only her husband, the petitioner herein; Mrs. Clayman, a niece, who, joined by her husband, are the respondents; and a half sister, Mrs. Emilie Clark Ball. Petitioner purchased all of Mrs. Ball's title, prior to the institution of this suit. Petitioner instituted this suit against respondents for title and possession of the two lots described in the contract and deed. The first count of his pleadings was statutory trespass to try title, and in the second count, he pleaded the lots were paid for out of community funds; that Mrs. Frances M. Lindsay held the title in trust for the community (a) because community funds were used, and (b) by virtue of an agreement between him and his wife made prior to the purchase. Also, he pleaded that in the event the lots be held to be separate property of Frances M. Lindsay, the community estate of himself and wife had placed improvements on the lots at a cost of $6,000 and the community estate was entitled to be reimbursed in a like amount by the separate estate, and asking that a lien be fixed against the separate property to secure the payment of the cost of the improvements, and asking for a foreclosure of the lien. Upon a jury verdict favorable to petitioner as to all matters pleaded by him, the trial court rendered a judgment that petitioner recover the title and possession of the two lots sued for, together with writ of possession. Respondents herein duly perfected their appeal from this judgment to the Court of Civil Appeals at Galveston, Texas. That Court, by its opinion reported in 247 S.W.2d 300, reversed the trial court and rendered judgment for petitioner for title and possession as to two-thirds of the two lots, and for respondent, Mrs. Clayman, for an undivided one-third interest in the two lots, and awarded petitioner a charge against respondents' interest to secure the repayment to the community estate of the sum of $5,495, found by the jury as being the cost of the improvements placed upon the separate property of Mrs. Frances M. Lindsay with community funds. On rehearing the Court of Civil Appeals held that Mrs. Frances M. Lindsay's one-half interest in the community funds should be applied to reimburse the community for the funds used to improve Mrs. Lindsay's separate estate.

Petitioner urges that the Court of Civil Appeals erred in holding (a) as a matter of law that the two lots were the separate property of Mrs. Frances M. Lindsay; (b) that the consideration stated in the contract and the deed was contractual and that, as a matter of law, parol evidence was inadmissible to show the true intentions of E. W. and Frances M. Lindsay as to the title to the lots, and (c) that in adjusting the equities between the community estate and Mrs. Lindsay's separate estate, community funds should be applied toward the satisfaction of the claim.

We agree with the holding of the Court of Civil Appeals that, as a matter of law, the title to the two lots, under the contract and deed, vested in Mrs. Frances M. Lindsay as her separate property and estate.

The recitation contained in the contract and deed are to all intents and purposes the same as that in the deed construed in Kahn v. Kahn, 94 Tex. 114, 58 S.W. 825, 826, 827. In that case this Court said 'The decisions do clearly establish the proposition that the intent to make the property conveyed the separate property of the wife may be shown not only by words of conveyance to her sole and separate use, but by recitals of a consideration such as would, if moving from her, give such a character to it. There can, therefore, be no doubt that the deed before us upon its face unequivocally expresses the purpose of Kahn to convey to his wife in her separate right, and he cannot be permitted, consistently with correct principles, to show that he did not so intend. The evidence admitted does not come within the rule which sometimes permits the true consideration of an instrument to be shown to have been different from that recited. This principle, properly applied, admits the evidence where the consideration has been stated as a fact, but not where the recital is contractual in its nature. (East Line & Red River) Railroad Co. v. Garrett, 52 Tex. (133) 139; 6 Am. & Eng.Enc.Law, p. 775, and authorities cited.'

In McKivett v. McKivett, 123 Tex. 298, 70 S.W.2d 694, J. F. McKivett conveyed by deeds certain property to his wife, Nora K. McKivett 'for her own separate use and benefit' upon a cash consideration of $10 and other good and valuable considerations out of her separate funds, and the assumption of certain outstanding notes. After the death of J. F. McKivett, his sons, by a former marriage, sued Nora K. McKivett in trespass to try title for an undivided one-half interest in the property. They sought to introduce evidence that the two deeds were executed and delivered in pursuance of prior agreement between the husband and wife that she should hold the title to the property in trust for the community estate. The trial court sustained objections to the testimony offered and instructed a verdict for the wife, which was affirmed by the Court of Civil Appeals. 45 S.W.2d 1102. This Court affirmed and with regard to the rule of law applicable said:

'The principle upon which the decision of Kahn v. Kahn rests is the same as that which controls the cases holding that parol evidence may not be admitted, in the absence of fraud or mistake in the reduction of the contract to writing, to prove another or different consideration when the consideration expressed in the written instrument is contractual or executory. The reason for the exclusion of such evidence is that, when the parties have put in writing stipulations about the matter in controversy, they should not be permitted to show an inconsistent agreement. See Coverdill v. Seymour, 94 Tex. 1, 57 S.W. 37; Winkler v. Creekmore, Tex.Com.App., 256 S.W. 257; Johnson v. Johnson, Tex.Com.App., 14 S.W.2d 805; Pridgen v. Furnish, Tex.Com.App. 23 S.W.2d 307; Guggenheim v. Dallas Plumbing Co., Tex.Com.App., 59 S.W.2d 105.

'* * * Such evidence would contradict the very statements in the deeds which the court held in Kahn v. Kahn to belong to that class of particular and contractual recitals which the parties may not deny. The deeds in express terms declare the particular purpose or use for which the property is conveyed; that is, that it shall belong separately to the wife. Parol evidence should not be admitted to prove that it was conveyed for a different purpose or use. * * *'

Petitioner contends that he is not bound by the above rule of law for the reason that he was not a party to the deed. He was a party to the contract of sale, and he knew of the deed and together with his wife established their home upon these lots. The character of the title to the lots, whether separate property of Mrs. Lindsay, or community property of Mr. and Mrs. Lindsay, was fixed at the very time of the acquisition of the title. Smith v. Buss, 135 Tex. 566, 144 S.W.2d 529(7); Miller v. Miller, Tex.Civ.App., 131 S.W.2d 245, no writ history; Henry v. Reinle, Tex.Civ.App., 245 S.W.2d 743, ref. n. r. e.; Lusk v. Parmer, Tex.Civ.App., 87 S.W.2d 790, no writ history.

In Loeb v. Wilhite, Tex.Civ.App., 224 S.W.2d 343, 345, ...