Love v. Woerndell, 04-86-00344-CV

• Decision Date: 31 July 1987
• Docket Number: No. 04-86-00344-CV,04-86-00344-CV
• Citation: 737 S.W.2d 50
• Parties: Ruth D. LOVE, As Independent Executrix of the Estate of Caroline Elizabeth Duderstadt, Appellant, v. Herman WOERNDELL and Honor Woerndell, Appellees.
• Court: Texas Court of Appeals

Page 50

737 S.W.2d 50

Ruth D. LOVE, As Independent Executrix of the Estate of Caroline Elizabeth Duderstadt, Appellant, v. Herman WOERNDELL and Honor Woerndell, Appellees.

No. 04-86-00344-CV.

Court of Appeals of Texas,

San Antonio.

July 31, 1987.

Rehearing Denied Sept. 22, 1987.

Aaron L. Jackson, Austin, for appellant.

J. Ken Nunley, Uvalde, for appellees.

Before CADENA, C.J., and DIAL and CHAPA, JJ.

OPINION

CHAPA, Justice.

This appeal arises from a summary judgment rendered in favor of Herman Woerndell and Honor Woerndell (hereinafter appellees) and against Ruth D. Love, Executrix of the Estate of Caroline Elizabeth Duderstadt (hereinafter appellant). The judgment cancels a Revocation Deed executed October 2, 1979, by Caroline Elizabeth Duderstadt. It also denies the appellant relief on her counterclaim which was filed on April 18, 1985.

On December 26, 1963, Caroline Elizabeth Duderstadt and T.A. Duderstadt executed a deed conveying 394 acres of land to Honor Woerndell (their daughter) and her husband Herman O. Woerndell. This deed was later filed. T.A. Duderstadt died on September 19, 1969. On October 2, 1979, Caroline Elizabeth Duderstadt executed and filed a "Revocation Deed" in an attempt to revoke and cancel the Deed of December 26, 1963. On August 31, 1982, Caroline Elizabeth Duderstadt died, and on September 27, 1982, Ruth Love, was appointed Executrix of the Estate of Caroline Elizabeth Duderstadt. On May 18, 1983, appellees initiated this cause of action against appellant to remove a cloud from appellees' title. Appellees allege that the Revocation Deed and a lawsuit, not relevant to this appeal, styled Caroline Elizabeth Duderstadt v. Herman Woerndell and Honor Woerndell created a cloud on their title. The heirs of Caroline Elizabeth Duderstadt were not made parties to the suit. Appellant's answer contained a counterclaim seeking to remove a cloud on the title to their land. The counterclaim sought removal of the December 26, 1963, deed alleging failure of consideration, fraud and mistake. Appellant filed a motion to dismiss appellees' cause on October 7, 1985. There is nothing in the record which reflects that the motion was ever presented to the court for a ruling. Appellees' motion for summary judgment was filed on February 24, 1986, and heard on March 24, 1986. No contraverting affidavits were filed by appellant. On the day of appellees' summary judgment hearings, appellant filed her motion for summary judgment. Nothing in the record reflects whether this motion was ever presented to the court for a ruling. Appellees' summary judgment motion, granted on April 14, 1986, cancelled the Revocation Deed of October 2, 1979, and denied appellant's counterclaim. It is this summary judgment which is the issue on appeal before this Court.

In point of error one, appellant contends the trial court erred in denying appellant's motion to dismiss. The record, however, reflects that the motion was never presented to the trial court for a ruling. Under these circumstances, it is axiomatic that nothing is preserved for review. Point of error one is overruled.

In point of error two, appellant contends the trial court erroneously granted a summary judgment in favor of the appellees on their cause of action since the court lacked jurisdiction due to appellees' failure to join all heirs as parties. TEX.CIV.PRAC. & REM.CODE ANN. § 17.002 (Vernon 1986) provides:

In a suit against the estate of a decedent involving the title to real property, the executor or administrator, if any, and the heirs must be made parties defendant.

This case involves a suit against an estate where the Executrix was made a party defendant without the heirs being joined. Therefore, the central issue is whether this suit involves the title to real estate. Appellees' petition describes the property in question and seeks relief in a form of a "judgment cancelling the Revocation Deed and removing the cloud on Plaintiffs' [appellees'] title case [sic] by the Deed." Appellees however, struggle to contend their lawsuit does not involve title, after admitting in their brief that "due to the practicalities of title examination, the existance of this document [Revocation Deed] in the Deed Records of Medina County, Texas, constitutes a defacto cloud upon the title and operated to encumber the transfer of the property to interested third parties and its removal was necessary."

A suit to remove a cloud from the title to real estate is a suit involving title, and heirs are necessary party defendants. Russell v. Texas & P. Ry. Co., 68 Tex. 646, 5 S.W. 686 (1887). The provisions of TEX.CIV.PRAC. & REM.CODE ANN. § 17.002 are mandatory. See Jones v. Gibbs, 133 Tex. 645, 130 S.W.2d 274 (1939); Allen v. Mathews, 210 S.W.2d 849 (Tex.Civ.App.--Austin 1948, writ ref'd n.r.e.). A judgment in a suit involving title to real estate where the heirs are not joined as party defendants, is void and does not vest title in the plaintiff nor divest the heir of title. Allen, 210 S.W.2d at 851, citing East v. Dugan, 79 Tex. 329, 15 S.W. 273 (1891). The heirs of a decedent are jurisdictionally indispensable parties to a suit against the estate which involves real estate, and the failure to join the heirs renders the judgment void. Minga v. Perales, 603 S.W.2d 240 (Tex.Civ.App.--Corpus Christi 1980, no writ). Failure to join jurisdictionally indispensable parties constitutes fundamental error which an appellate court must recognize when apparent from the record. Minga, 603...