Neff v. Ulmer

• Decision Date: 30 May 1966
• Docket Number: No. 7623,7623
• Citation: 404 S.W.2d 644
• Parties: R. P. NEFF et al., Appellants, v. M. H. ULMER, Appellee. . Amarillo
• Court: Texas Court of Appeals

Page 644

404 S.W.2d 644

R. P. NEFF et al., Appellants, v. M. H. ULMER, Appellee.

No. 7623.

Court of Civil Appeals of Texas Amarillo.

May 30, 1966.

Rehearing Denied June 27, 1966.

Yates & Yates, Abilene, Day & Owen, Plainview, for appellants.

Guilford L. Jones and John A. Burgess, Big Spring, for appellee.

NORTHCUTT, Justice.

This suit was filed in the District Court of Hale County, Texas, by M. H. Ulmer against R. P. Neff; R. E. Neff; A. R. Neff; Elizabeth Neff, a feme sole; Mrs. Eva Lee Adams, and husband, Wallace Adams; Mrs. Edna Gould and husband, Oscar Gould; Mrs . Vera Stalcup and husband, Harvey Stalcup; Mrs. Mary Hamlin and husband, Clinton Hamlin; and R. E. Neff and A. R. Neff as joiint independent executors of the estate of I. H. Neff and wife, Mrs. L. T. Neff, to recover title and possession of certain land in Hale County, Texas, described in the petition as follows: the northwest one-fourth of Section 14, Block JK 2, Certificate 4/636 containing 160 acres of land located in Hale County, Texas. R. P. Neff, R. E. Neff, A. R. Neff, Elizabeth Neff, Eva Lee Adams, Edna Gould, Vera Stalcup and Mary Hamlin were the children of I. H. Neff and wife, Mrs. L. T. Neff.

On February 10, 1953, I. H. Neff and wife L. T. Neff, executed eight separate deeds deeding to each of their children a certain piece of property and acknowledged each deed before Vera Burdick, notary public in and for Coleman County, Texas, on March 11, 1953. The above mentioned property was deeded to Mrs. Della Ulmer as her own separate property and estate. Each deed provided the consideration to be the execution, by the child mentioned in that particular deed, of a $5,000 note payable to I. H. Neff and L. T. Neff in five annual installments. The deeds here mentioned were not delivered but were left with W. Marcus Weatherred, the attorney of I . H. Neff and wife, L. T. Neff, to hold. On March 31, 1958, I. H. Neff and L. T. Neff executed eight separate releases releasing the $5,000 lien mentioned in the particular deed. The releases were acknowledged by I.H. and L. T. Neff on April 3, 1958, before W. Marcus Weatherred, notary public, Coleman County, Texas. The releases were left in the possession of Mr. Weatherred. All of the deeds and releases wee filed for record on February 18, 1959, at 10:00 o'clock a.m. Mr. I. H. Neff died in September 1961 and his wife, L. T. Neff, died in December 1961.

It is the contention of M. H. Ulmer that the property above described that was deeded to his wife, Della Ulmer, was their community property at the time of the death of Della Ulmer and since there were no children born to them, he owned the entire 160 acres. The defendants contended the property was the separate property of Della Ulmer and that M H. Ulmer was entitled to receive only one-half of the 160 acres above set out.

The case was submitted to a jury upon seven special issues. In answer to the issues the jury found that in the summer of 1952 I. H. Neff agreed with Mr. and Mrs. Ulmer to compensate them for the care and support of Ann Ulmer; that it was the intent of I. H. Neff and Mrs. L. T. Neff in executing the deed to the land in question as payment to Mr. and Mrs. Ulmer for the care and support of Ann Ulmer and Mary Hamlin; that it was the intent of I. H. Neff, Mrs. L. T. Neff and, Della Ulmer that the $5,000 consideration expressed in the deed be paid out of the rents and revenues of the land in question; that the $5,000 consideration was paid to Mr. and Mrs. I. H. Neff out of the rent and revenues of the land in question; that after the execution of the deed and release in question that Marcus Weatherred held said deed and release in his possession exclusively for the benefit of I. H. Neff and wife; and that Marcus Weatherred did not send the deed and release in question to the county clerk of Hale County for record at the request of I. H. Neff and that it was not the intention and purpose of I. H. Neff and wife in executing and recording the deed and release in question to make a gift of the property in question to Della Ulmer as her separate property and estate. The undisputed evidence is that Mr. Neff directed Mr. Weatherred to send the deeds and releases to the county clerk to be recorded.

Judgment was entered by the court granting M. H Ulmer title and possession of the property involved and holding that the deed dated February 10, 1953, executed by I. H. Neff and Mrs. L. T. Neff as grantors to Mrs. Della Ulmer as grantee vested title in the land in question in Della Ulmer as the community property of Della Ulmer and M. H. Ulmer. The judgment further ordered that a writ of possession issue directing the sheriff to seize the property and deliver possession to M. H. Ulmer. The judgment further decreed that M. H. Ulmer recover of and from the defendants and each of them jointly and severally the sum of $9,324.11 as the reasonable value of the use of the lands from and after February 28, 1960, to the 30th day of March, 1962. From that judgment all of the defendants except Mary Hamlin and husband perfected this appeal. Hereafter the defendants, except Mary Hamlin and husband, will be referred to as appellants and the plaintiff as appellee. The interest of Mary Hamlin and husband will not be considered further herein since they did not join in this appeal.

By appellants' fourth, seveth, ninth and thirteenth points of error it is contended that the findings of the jury that it was the intent of Neff and wife in executing the deed to convey the land in question as payment to M. H. Ulmer and Della Ulmer for the care and support of Ann Ulmer and Mary Hamlin; and that it was the intent of the grantors that the $5,000 note was to be paid out of the rent and revenue of the land in question; and that it was paid out of such rent and revenue; and that Mr. and Mrs. Neff did not intend the deed as a gift to Della Ulmer, were so against the great weight and preponderance of the evidence as to be clearly wrong. In considering those assignments of error we must consider and weigh all of the evidence in the case. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660.

We think it is clear under this record that the first time Della Ulmer or M. H. Ulmer could have claimed any right or title to the property here involved was after the deed was filed for record because in order to operate as a transfer of title to the land the deed must have been delivered to them or to some third party for their use and benefit. Cardwell v. Shifflet, Tex.Com.App., 294 S.W. 519 Anglin v. Cisco Mortgage Loan Co., 135 Tex. 188, 141 S.W.2d 935 and cases there cited.

As to the contention of appellee that it was the intent of Mr. and Mrs. Neff in executing the deed to convey the land in question as payment to Mr. and Mrs. Ulmer for care and support of Ann Ulmer and Mary Hamlin, we believe such contention is in direct conflict with the true record in this case. The conversation had by appellee with I. H. Neff concerning the promise of Mr. Neff to pay appellee for keeping Ann and her mother was prior to the execution of the deed in question. There is no other evidence than that given by appellee as to the intent of Mr. and Mrs. Neff to deed this property to Ulmer in...