Mondragon v. Mondragon

• Decision Date: 20 December 1923
• Docket Number: (No. 3797.)
• Citation: 257 S.W. 215
• Parties: MONDRAGON et al. v. MONDRAGON.
• Court: Texas Supreme Court

Page 215

257 S.W. 215

MONDRAGON et al. v. MONDRAGON.

(No. 3797.)

Supreme Court of Texas.

December 20, 1923.

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

Suit by Martine Mondragon against Juan Mondragon and others. Judgment for defendants, and plaintiff appealed to the Court of Civil Appeals, which affirmed in part and reversed and remanded in part (239 S. W. 650), and defendants bring error. Judgment of Court of Civil Appeals reversed in part, and judgment of trial court affirmed.

Russell Savage, of Corpus Christi, for plaintiffs in error.

E. P. Scott and J. M. Taylor, both of Corpus Christi, for defendant in error.

CURETON, C. J.

This suit was brought by Martine, or Martiniano, Mondragon, against his brothers Juan, Anacleto, and Tomas Mondragon, for the purpose of having lot 6, block 59, of the Bluff portion of the city of Corpus Christi sold, and the proceeds thereof distributed among the parties, and for an accounting for rents.

The four brothers had title to the lot under the will of their deceased mother, Pascuala, it being the only real property devised to them by her, and held it as tenants in common until the interests of Tomas and Martiniano were purchased by the other two brothers in 1916. It is only necessary for us to discuss the conveyance of Martiniano, the plaintiff below.

In addition to the foregoing, the trial court found, in part, as follows:

"I find as a fact that on the 24th day of February, A. D. 1916, plaintiff, Martiniano Mondragon, by an instrument of writing for the consideration of $160 to him then paid by Juan Mondragon, conveyed his interest in and to said property to defendant Juan Mondragon. That said instrument and its translations are as follows: (Here follows the instrument in Spanish; but since it is also translated in the court's findings, we give only the translation).

"`Received from Juan Mondragon the sum of hundred sixty dollars $160.00 dollars, in payment of my part that I have in the lot No. 6, block 59, inheritance which my mother Pascuala Mondragon, left us, I not having any further right in said inheritance I sign the sale to-day 24 day of February of 1916, in Corpus Christi, Texas, Nueces county.

                                 "`I, Martiniano Mondragon
                

"`Witness: Anacleto Mondragon, Jr. Porfirio Mondragon, Josefa Mondragon.'

"That said transaction occurred at the place of residence of the plaintiff, Martiniano Mondragon, in the presence of plaintiff, defendant Juan Mondragon, defendant Anacleto Mondragon, Josefa Mondragon, a sister of plaintiff and defendants, and Porfirio Mondragon, the son of Juan Mondragon and nephew of the others. That this instrument was written by defendant Juan Mondragon. That plaintiff then asked Juan Mondragon to sign plaintiff's name thereto, which he did. That Josefa Mondragon, Anacleto Mondragon and Porfirio Mondragon thereupon requested Juan Mondragon to sign their names thereto as subscribing witnesses, and that Juan did so sign their names. That thereupon said instrument was delivered to defendant Juan Mondragon, and the sum of $160 in cash was then and there paid by Juan Mondragon to plaintiff, Martiniano Mondragon, as consideration therefor.

"I find as a fact that after said 24th day of February, A. D. 1916, the defendant Juan Mondragon and the defendant Anacleto Mondragon managed said property, collecting the rentals therefrom and paying the taxes thereon, dividing the remainder between the two. That the plaintiff Martiniano Mondragon after said date received none of the revenues from said property, and made no claim thereto until the date of the filing of this suit on July 6, 1921. I find as a fact that defendant Juan Mondragon had no notice of the fact that plaintiff Martiniano Mondragon intended to attempt to repudiate the conveyance above set forth until the date of the filing of this suit on the 6th day of July, A. D. 1921.

"I find as a fact that after the said 24th day of February, A. D. 1916, defendants Juan and Anacleto Mondragon made valuable improvements upon said property of the reasonable market value of $600, and that the plaintiff knew of these improvements and made no objection thereto."

The trial court concluded as a matter of law that the instrument above quoted was sufficient to convey all right, title, and interest of Martiniano Mondragon to the property in controversy to Juan Mondragon. He thereupon entered judgment denying recovery to Martiniano Mondragon, who brought the suit.

Upon appeal to the Court of Civil Appeals, the case, as to the action of Martiniano, was reversed and remanded. 239 S. W. 650. This court granted a writ of error.

We are inclined to the view that the instrument, being clearly a relinquishment by an heir of his interest in an estate, could be regarded as a conveyance. Williams v. Emberson, 22 Tex. Civ. App. 522, 55 S. W. 595; Smith v. Cantrel (Tex. Civ. App.) 50 S. W. 1081; Devlin on Deeds (3d Ed.) vol. 1, § 16.

Whatever doubt there might be as to the correctness of such a conclusion, it is quite evident under the authorities that this receipt is sufficient as a contract for the sale of the land. The Court of Civil Appeals properly reached this conclusion. Fulton v. Robinson, 55 Tex. 401; Morrison v. Dailey (Tex. Sup.) 6 S. W. 426. Since, however, the same result will be reached, we will treat the contract as one for the sale of land, rather than a conveyance.

The primary and fundamental question is whether or not the contract was executed in such manner as to be enforceable under the statute of frauds.

Revised Statutes, art. 3965, requires contracts for the sale of real estate to be in writing, "and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized."

The objection is that the name of Martiniano, as well as the entire instrument, was written by Juan, the grantee. It is urged that Juan could not be both the grantee and an agent for the grantor in the execution of the instrument. This is, of course, entirely sound. 1 Mechem on Agency, and other authorities cited by the Court of Civil Appeals in its opinion. However, in those jurisdictions which hold that under the statute of frauds an agent, in order to sign a conveyance of real estate for his principal, must be authorized by an instrument under seal or in writing, it is held that this requirement has no application where the grantor is present and authorizes another, either expressly or impliedly, to sign his name to a deed. In such a case it becomes the deed of the grantor, and is as binding upon him, to all intents and purposes, as if he had personally affixed his signature. Devlin on Deeds, vol. 1 (3d Ed.) §§ 232, 233, and cases cited in the notes; Story on Agency (9th Ed.) § 51; 27 Corpus Juris, § 356, and cases cited in the notes; Gardner v. Gardner, 5 Cush. (Mass.) 483, 52 Am. Dec. 740; Jansen v. McCahill, 22 Cal. 563, 83 Am. Dec. 84; Conlan v. Grace, 36 Minn. 276, 30 N. W. 880; R. R. I. & St. L. Ry. Co. v. Shunick, 65 Ill. 223, 229; Middlebrook v. Barefoot, 121 Ala. 642, 25 South. 102; Croy v. Busenbark, 72 Ind. 48; Lord v. Lord, 58 N. H. 7, 42 Am. Rep. 565; Fitzpatrick v. Eugard, 175 Pa. 393, 34 Atl. 803; Mutual Benefit Life Ins. Co. v. Brown, 30 N. J. Eq. 193; Morton v. Murray, 176 Ill. 54, 51 N. E. 767, 43 L. R. A. 529, 532; Lewis v. Watson, 98 Ala. 479, 13 South. 570, 22 L. R. A. 297, 39 Am. St. Rep. 82.

It is plain that in announcing the rule just stated the authorities have not regarded one who writes the signature of the contracting party as an agent in its legal sense. They appear to proceed upon the principle, as stated in 27 Corpus Juris, supra, that—

"The act is deemed to be his as much as if he had done it in person, and the person actually writing the name is regarded not as an agent but as a mere instrument or amanuensis."

However, we are not basing this opinion upon the fact alone that the instrument was written and signed for the grantor in his presence and under his direction. In reaching our conclusion we have taken...