Masterson v. Bouldin, 2118.

• Decision Date: 28 March 1941
• Docket Number: No. 2118.,2118.
• Citation: 151 S.W.2d 301
• Parties: MASTERSON et ux. v. BOULDIN et al.
• Court: Texas Court of Appeals

151 S.W.2d 301

MASTERSON et ux. v. BOULDIN et al.

No. 2118.

Court of Civil Appeals of Texas. Eastland.

March 28, 1941.

Rehearing Denied May 9, 1941.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Knox County; Isaac O. Newton, Judge.

Action by T. T. Bouldin and another against R. B. Masterson, Jr., and wife to establish plaintiff's claim of ownership of interests in described separate property of defendant wife and community property of defendants. Judgment for plaintiffs, and defendants appeal.

Reversed and remanded.

Adkins, Pipkin, Madden & Keffer, of Amarillo, for appellants.

J. R. Creighton, of Mineral Wells, Lyndsay D. Hawkins, of Breckenridge, and L. M. Williams, of Benjamin, for appellees.

FUNDERBURK, Justice.

Plaintiffs, T. T. Bouldin and Lloyd G. Bouldin, sued defendants R. B. Masterson, Jr., and wife, Mrs. Laura T. Masterson, to establish plaintiffs' claim of ownership to 12/100 undivided interest in described separate property of said Laura T. Masterson, and a like 12/100 interest in said Laura T. Masterson's one half (1/2) of described community property of the Defendants. Plaintiffs' second amended original petition (trial pleading) including exhibits, comprises 75 pages of the transcript. Because of their great length only a very general statement regarding the pleadings will be made.

The suit is not the statutory action of trespass to try title. A question of title is involved, but whether legal title or equitable title is perhaps one of the matters to be decided. At any rate, the nature of the title as to whether legal or equitable is only important upon a question of whether it is such as will support an action for partition. Subject to the establishment of title, or ownership, of the interest claimed partition was sought of a part of the property. The estimated value of the property in which plaintiffs sought to establish their claim of ownership and to have partition thereof, including some personal property, was alleged to be one million dollars.

Two written instruments upon which the suit was founded were denominated contracts and bore date January 29, 1938, and February 12, 1938, respectively.

The later of said contracts signed by the parties, with married woman's separate acknowledgment by Mrs. Masterson, was as follows:

                "The State of Texas
                "County of Palo Pinto
                

"This contract this day made by and between Mrs. Laura T. Masterson of Amarillo, Texas, hereinafter styled party of the first part, and the law firm of Bouldin & Bouldin, composed of T. T. Bouldin and Lloyd G. Bouldin, hereinafter styled party of the second part. Witnesseth:

"That for and in consideration of the legal services rendered and to be rendered by said party of the second part, said parties have this day contracted together as follows:

"1. That the said party of the first part, Mrs. Laura T. Masterson, having been abandoned by her husband, R. B. Masterson, because of his conduct, treatment, and attitude toward her, and because of the unpleasantness existing between them making it impossible for her to live with him, and she is now living separate and apart from the said R. B. Masterson, her husband, has decided that a permanent separation is absolutely necessary, and to continue to live separate and apart from her said husband, and if needs be to protect her property rights sue for a divorce. The said Mrs. Laura T. Masterson is without funds with which to procure and pay attorneys to represent her in determining and procuring her property rights and in protecting her in such litigation as may be necessary to protect her and her property rights and secure for her an equitable and proper partition as between her and the said R. B. Masterson, of the property owned by them jointly.

"2. That because of the treatment heretofore stated and the conduct of the said R. B. Masterson toward party of the first part, the said party of the first part, Mrs. Laura T. Masterson, is now living separate and apart from her said husband, and is forced to act as a feme sole, and contract as such, that she has employed and does hereby employ the said Bouldin & Bouldin, to represent her in such way and manner as may be necessary to determine and procure her property rights, whether it be by settlement or by court procedure.

"3. In consideration of the services rendered and to be rendered by the said T. T. Bouldin and Lloyd G. Bouldin, the said Mrs. Laura T. Masterson hereby sells, transfers, conveys, and assigns to the said T. T. Bouldin and Lloyd G. Bouldin 12% interest in any and all property to which she may be entitled, whether real or personal, separate or community, wheresoever located or situated in the State of Texas or elsewhere, except her homestead in Amarillo, Texas, said property being principally located in Knox, King, Potter, Carson, and Moore Counties in the State of Texas. It being the intention to include in this contract 12% interest in any and all property of any character belonging to the community estate or separate estate of the party of the first part, except as above provided.

"4. The said Mrs. Laura T. Masterson further agrees and contracts that the 12% interest of her said property has been agreed upon by her and her said attorneys as a reasonable and fair fee, which the additional amount of $1,000.00 which is to be paid immediately for the purpose of paying the traveling expenses of party of the second part, and included as a part of the fee herein in addition to the 12% herein provided.

"5. It is further agreed that at the option of either party hereto that party of the first part will pay to party of the second part 12%, in cash, of the reasonable market value of all the property above referred to, including all personal and real property and community, as well as her separate estate, except the homestead hereinabove excepted, said reasonable market value to be determined and fixed as of the date of said payment, said amount to be paid when party of the first part's property rights are determined either by settlement or litigation, and payable in Mineral Wells, Palo Pinto County, Texas, and when said payment of 12% in cash as herein stated is paid the contract of conveyance herein of said property shall terminate and be of no further force and effect.

"6. It is further agreed that party of the second part will not make any compromise or settlement of the property rights of party of the first part without her consent.

"7. It is further agreed that party of the first part, Mrs. Laura T. Masterson, will pay any and all court costs or expenses of litigation, if any, or any and all other expenses, except the personal expenses of parties of the second part, in carrying out their part of this contract, which are to be paid by them without any further expense to party of the first part.

"8. This contract is binding upon the parties hereto, their heirs, executors, administrators, and assigns.

"Witness Our Hands This the 12th day of February, A. D. 1938."

The first contract, upon execution of the second, was by mutual agreement destroyed with the intention that the second be substituted for the first.

In a jury trial, after the conclusion of the introduction of evidence, the court overruled a motion of the defendants for an instructed verdict in their favor and sustained such a motion of the plaintiffs. From the judgment rendered accordingly the defendants have appealed.

The parties will hereinafter continue to be referred to as plaintiffs and defendants, or by name.

In our opinion, the rights of the parties are to be governed by the contract dated February 12, 1938. Variances between that contract and the first contract dated January 29, 1938, are believed, as a practical matter, to be immaterial. If the first contract, properly construed, was an executed conveyance of the land, but the second contract, properly construed, was not an executed conveyance of the land, but at most a contract to convey, the last contract to whatever extent it makes clear the intention of the parties and the subject-matter is the sole evidence thereof.

Application of the principle of estoppel by contract and the analogy of the latter to estoppel by deed seem to us to have that effect. In Poitevent v. Scarborough, 103 Tex. 111, 124 S.W. 87, Poitevent had conveyed by deed to Scarborough land, including a certain 109-acre tract. The deed was never recorded and at the time of the trial had been lost. Subsequently to its execution and delivery, Poitevent, because of an unsatisfactory description, made a new deed describing lands which did not include said 109-acre tract. The second deed recited that the same lands were conveyed as in the first deed. It was held, as a matter of law, that the grantee was estopped to claim that the first deed conveyed the land in suit, which was not included in the second deed.

Similarly, we think, under the allegations of plaintiffs' petition both parties would be estopped to claim any rights under the first contract not provided in the second contract.

The second contract, which, under the view indicated, must be regarded as the foundation of the suit, does not, in our opinion, of itself, as a matter of law, constitute a conveyance to plaintiffs of legal title to the land in suit. To say that the optional provision implies (for it certainly does not express) an agreement by plaintiffs to re-convey the land to Mrs. Masterson upon the election of either party to exercise the option to pay, or receive, money instead of land, seems to us to be, in any view, a somewhat forced construction. At any rate, an essential foundation for such implication, if it could exist, would be the fact that the contract constituted a present conveyance of the land. But with the first contract eliminated, and with plaintiffs estopped to prove such fact by it, that fact is not, to say the least, certainly shown by the second contract. Being at least doubtful, it will not support the implied...