Magee v. Young

• Decision Date: 04 December 1946
• Docket Number: No. A-1021.,A-1021.
• Citation: 198 S.W.2d 883
• Parties: MAGEE v. YOUNG et ux.
• Court: Texas Supreme Court

198 S.W.2d 883

MAGEE v. YOUNG et ux.

No. A-1021.

Supreme Court of Texas.

December 4, 1946.

Rehearing Denied January 15, 1947.

Further Rehearing Denied February 12, 1947.

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

Suit in trespass to try title by P. F. Magee against F. R. Young and wife. Judgment for plaintiff was reversed and rendered for defendants by Court of Civil Appeals, 196 S.W.2d 203, and plaintiff brings error.

Judgment of the Court of Civil Appeals affirmed.

Harrington & Harrington, and H. M. Harrington, Jr., all of Longview, and Black & Stayton and John W. Stayton, all of Austin, for petitioner.

Jones & Jones, of Mineola, and John F. Pryor, of Hanford, Cal., for respondents.

HICKMAN, Justice.

This is a suit in trespass to try title filed by petitioner, P. F. Magee, against respondents, F. R. Young and wife, Anna Dean Young, for the title and possession of 160 acres of land in Wood County. In the trial court judgment was rendered in favor of petitioner, but the Court of Civil Appeals reversed that judgment and rendered judgment in favor of respondents. 196 S.W. 2d 203.

Petitioner's claim of title is based on a deed to the land in suit executed to him in 1944 by Mrs. Elnora Hoff, to whom her husband, John W. Hoff, then deceased, had theretofore devised and bequeathed all his property. There are two deeds in respondents' chain of title attacked by petitioner. One was executed in 1914 by Ruth L. Thornburg and husband, H. G. Thornburg, and the other in 1921 by Elnora Hoff, wife of John W. Hoff. The opinion of the Court of Civil Appeals discusses both of these deeds. In this court the petitioner raises no question as to the correctness of the decision of that court with respect to the validity of the Thornburg deed, but confines his attack solely to the Hoff deed. He bases his right to recover here upon the proposition that the Hoff deed, hereinafter discussed, conveyed no title, legal or equitable, to the land in question. Our statement of the case will therefore be limited to such portions of the record as are thought to have a bearing upon that issue.

The property was conveyed by J. H. Carter to Elnora Hoff by deed dated February 4, 1916. The deed recited that the consideration of $2,000 named therein was "paid by Elnora Hoff". Elnora Hoff was then a married woman, the wife of John W. Hoff. On May 12, 1921, Elnora Hoff executed a deed to E. Rowland and wife, Aletha E. Rowland. By mesne conveyances whatever title was acquired by the Rowlands through that deed passed to respondents. The name of John W. Hoff does not appear in the body of the deed and it does not purport to be his act. However, he signed the deed just below the signature of his wife and a certificate of acknowledgment of both by a notary public of Fresno County, California, appears below the signatures. Since under our views the form of the acknowledgment is not controlling, it will not be discussed further than to state that, in our opinion, it embodies the essential elements of a single acknowledgment under our statutes, but not of a married woman's separate acknowledgment.

In order to determine what effect, if any, should be given to the Hoff deed, it is necessary that we first decide whether the property was the separate property of Mrs. Hoff or the community property of her and her husband. The property having been acquired during the marriage of the Hoffs, presumptively it was community property, even though the instrument recites that the consideration was paid by Mrs. Hoff and the deed was drawn in her name, there being no language in the deed disclosing that the consideration was paid from her separate funds or that the property was conveyed to her as her separate estate. This court has recently reannounced the above rule with citation of supporting authorities in Brick & Tile v. Parker, 143 Tex. 383, 186 S.W.2d 66. It is petitioner's claim that this presumption was overcome by the record in this case. This claim is based alone upon the following circumstances: (1) The conveyance was made to Elnora Hoff and recited that the consideration was paid by her; (2) the deed executed by her recited that she was the grantor; (3) her husband, John W. Hoff, signed and acknowledged the deed without being named as a party in the deed; (4) he died in 1939 and the inventory of his estate, prepared by others after his death, did not list a claim to the property.

These circumstances, in our opinion, are not legally sufficient to overcome the presumption. There is no suggestion that the property was the homestead of the Hoffs, and so our discussion below will be based upon the conclusion that this property was the community property of the Hoffs and was not their homestead.

The Court of Civil Appeals recognized the principle announced in Stone v. Sledge, 87 Tex. 49, 26 S.W. 1068, 47 Am.St.Rep. 65, and, based thereon, it held that the deed signed by John W. Hoff failed as a conveyance by him because his name did not appear in the body thereof and it was not otherwise made to appear therein that it was his intention to be bound thereby, but nevertheless upheld the title of the respondents on the ground that such deed was a valid contract on the part of John W. Hoff to convey the land, which contract had been fully executed by the Rowlands, and that as a consequence the equitable title passed to them. We have concluded that its decision is correct.

It is obvious that the equities are on the side of respondents. They hold the title of the Rowlands, who, in 1921, purchased this land from the Hoffs and paid them the agreed price therefor, while petitioner's claim of title comes through a deed executed twenty-three years later by Mrs. Hoff after the death of her husband. There is no showing that the Hoffs ever made claim to any of the revenue derived from the land or made any attempt to repudiate their deed until Mrs. Hoff executed the deed to petitioner. On the other hand, there is a showing that respondents assumed the obligations and exercised the rights of ownership of the land by the payment of taxes thereon and the leasing thereof for mineral exploration and development.

The deed signed by John W. Hoff was not in the form of a contract and it contained no express covenant on his part to convey, but that fact creates the situation which calls for the application of rules of equity. Had it contained a covenant on his part to convey, there would have been no occasion to resort to equitable rules, and only because of the absence of such a covenant do those rules come into play. Clearly the parties intended that some...