Lott v. Kaiser

• Decision Date: 30 May 1884
• Docket Number: Case No. 5209.
• Citation: 61 Tex. 665
• Parties: A. LOTT, JR., v. FRANCES KAISER ET AL.
• Court: Texas Supreme Court

61 Tex. 665

A. LOTT, JR.,

v.FRANCES KAISER ET AL.

Case No. 5209.

Supreme Court of Texas.

May 30, 1884.

APPEAL from Bosque. Tried below before the Hon. Jo Abbott.

Suit in trespass to try title by plaintiffs, Frances C. Kaiser and Elizabeth F. Sibley, joined by their husbands, against M. Dicas, J. K. Montgomery, G. O. Wood, A. Lott, Jr., and Ida Ellen Lott, the latter being a minor, for the recovery of two tracts of land in Bosque county, for partition of the same between the plaintiffs Frances C. Kaiser, Elizabeth F. Sibley and the minor defendant Ida E. Lott, and for the recovery of rents against the defendants except the minor. The petition alleged that the defendant A. Lott, Jr., by deed dated 1st July, 1871, conveyed these lands to Frances C. Lott, Elizabeth Lott and Ida E. Lott, and afterwards had the same recorded.

The defendant A. Lott, Jr., filed his answer, which contained general demurrer, general denial, plea of not guilty, and special answer, in substance, that: 1st. The deed was not executed on the 1st day of July, 1871, the date it bears, but in September, 1871. 2d. That it was not made for the purpose and consideration stated therein, but upon the express understanding and trust that it should not operate to disseize the grantor of the possession and control of the property during his life, but on the contrary was only intended to take effect at the death of said A. Lott, Jr., and that at the death of said A. Lott, Jr., all said land and other property mentioned in the instrument should go to and become the property of the said Frances, Elizabeth and Ida E. Lott, who were his children; that the instrument was intended to be and was testamentary in its character. The answer set forth fully the circumstances under which the instrument was executed and a copy of the deed was made a part of the answer.

The deed purports to convey the lands sued for; also various articles of personal property. The consideration is natural love and affection, and the instrument is in the ordinary form of a deed of gift. The defendant Ida E. Lott, by her guardian ad litem, R. E. Murrell, pleaded substantially as the plaintiffs, and prayed for the same relief as against the other defendants. The cause was tried before the judge without a jury, and resulted in a judgment in favor of the plaintiffs Frances C. Kaiser, Elizabeth F. Sibley and the minor defendant Ida E. Lott, for the recovery of the lands sued for, against the other defendants, and for costs; also a decree for partition dividing equally the lands between the plaintiffs and the defendant Ida E. Lott, appointing commissioners, etc. From this judgment the defendant A. Lott, Jr., appealed.

The first assignment of error was as follows: “The court erred in holding, as stated in his conclusions of law and fact: 1st. The evidence leads me to conclude that the deed from A. Lott, Jr., to his daughters was not donatio causa mortis. It was not because of the perils that surrounded him at the time of its execution, but to defeat any claim or supposed claim that his second wife, M. E. Lott, might assert in and to his property.”

The second assignment of error was as follows: “The court erred in holding that A. Lott, Jr., intended to defeat any claim which his second wife, M. E. Lott, might have on his property during his life, but should have held that the deed was intended to protect his minor children of tender age at his death and in that event; and that the bad feelings existing between Lott and his wife made it necessary for him to protect his children in the event of his death, by making the deed, and because the proof shows that no estate in fact vested or was intended to be vested in Lott's daughters until his death.”

The eighth assignment of error was as follows: “The court erred in holding that a present estate was conveyed by the said deed, and that the effect of the evidence in this case is not to defeat or destroy the legal title nor to establish that the deed was to operate as a testamentary devise.”

De Berry & Smith, for appellants, cited: Reeves v. Bass, 39 Tex., 631;Mead v. Randolph, 8 Tex., 196;3 Tex., 1;5 Tex., 93;21 Tex., 245;25 Tex., 403; 1 Story's Eq. Jur., 155; Jarman on Wills, vol. 1, pp. 43-45, and p. 46, note 17, at bottom of page.

Oatis & English, for appellees, cited: Hart v. Rust, 46 Tex., 556; 3 Wait's Actions and Defenses, p. 495; Porser v. Tyler, 1 McCord (S. C.) Ch., 18; Murry v. N. Y. L. & W. R'y Co., Sup. Ct. Pa.; 3 Wait's Actions and Defenses, p. 502; Meach v. Meach, 24 Vt., 591; Hill on Trustees, 59; Jenkins v. Eldridge, 3 Story, 182; Lands v. Jeffries, 5 Randolph, 211; Union Mutual Insurance Co. v. Campbell, 35 Am. Rep., 166;95 Ill., 267;Ferguson v. Ferguson, 27 Tex., 339;Faulk v. Faulk, 23 Tex., 654.

STAYTON, ASSOCIATE JUSTICE.

The deed by which A. Lott, Jr., conveyed the two tracts of land in controversy to his daughters, Frances, Elizabeth and Ida, purports to have been made in consideration of the natural love and affection borne to them by their father, the grantor; in terms it is absolute, purports to convey in presenti, and contains no reservation or exception whatever.

The law presumes a deed made upon such a consideration, and purporting to be a gift by a father to his children, to be an advancement.

The deed is conclusively presumed, in the absence of accident, mistake or fraud, to use language which, when unambiguous, truly evidences the intention of the grantor.

The evidence renders it certain that the instrument does not fail truly to reflect the intention of the grantor at the time he executed and had it recorded, by reason of any accident or mistake of fact, by which he was influenced to use the language in which it is written, or by which he was prevented from using therein language which would have evidenced an intention which he now seeks to show existed.

He knew the legal effect of the language contained in the instrument before he executed it, if there is any faith to be placed in his own testimony or in the testimony of the attorney who drew it, or of the other person who was present at the time of its execution.

To control the legal effect of the instrument, however, he relied on his continued possession of the property which he conveyed to his minor children, and upon the parol evidence of a secret intention which he expected to produce should the grantees at any time assert rights under it, such as by the clear import of its language it conferred upon them.

The instrument was not executed through accident. The word “accident,” as used as a ground for the exercise of equity jurisdiction, is thus defined by a distinguished elementary writer: “Accident is an unforeseen and unexpected event, occurring externally to the party affected by it, and of which his own agency is not the proximate cause, whereby, contrary to his own intention and wish, he loses some legal right or becomes subject to some legal liability, and another acquires a corresponding legal right, which it would be a violation of good conscience for the latter person, under the circumstances, to retain. If the party's own agency is the proximate cause of the event, it is a mistake rather than an accident.” 2 Pomeroy's Equity, 823. Tested by this definition, which is sufficiently accurate, the instrument was not executed through accident; for the very thing which has occurred, i. e., the assertion of title under the deed, was foreseen and could not in a legal sense have been unexpected; the execution of the deed, which was solely the act of its maker, was the proximate cause, the creation of the right which the grantees now assert.

The same author thus defines the word “mistake:” “Mistake, therefore, within the meaning of equity, and as the occasion of jurisdiction, is an erroneous mental condition, conception or conviction, induced by ignorance, misapprehension or misunderstanding of the truth, but without negligence, and resulting in some act or omission done or suffered erronously by one or both the parties to a transaction, but without its erroneous character being intended or known at the time.” 2 Pomeroy's Equity, 839.

Tested by this definition there was no mistake. The maker of the deed knew its contents at the time he executed it, and he also knew the legal effect of the language which it contained; and if in either of these respects it was erroneous, in that it did not truly express the intention of the maker, that was known to him before he executed it; and the failure to insert such words in the instrument as would make it express truly the intention of its maker, when knowledge was brought home to him, that, as written, it did not do so, was negligence which takes from the transaction the element of mistake, either of law or fact.

It is not pretended that there was any actual fraud practiced on the grantor by the grantees, or by any one acting in...