Powell v. Ott

• Citation: 146 S.W. 1019
• Parties: POWELL v. OTT.
• Decision Date: 04 April 1912
• Court: Court of Appeals of Texas

146 S.W. 1019

POWELL v. OTT.

Court of Civil Appeals of Texas. Texarkana.

April 4, 1912.

Rehearing Denied May 2, 1912.

Appeal from District Court, Bowie County; P. A. Turner, Judge.

Action by S. S. Ott against John Powell. From a judgment for plaintiff, defendant appeals. Affirmed.

December 3, 1888, L. C. Powell and his wife, S. E. Powell, signed and duly acknowledged an instrument in writing as follows: "The State of Texas, County of Bowie: Know all men by these presents that we, Luke C. Powell and Mrs. S. E. Powell, husband and wife, for and in consideration of the love and affection we bear to John Powell, an adopted son, and for services rendered to us by said John Powell, have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey to the said John Powell, the following tract of land, to wit: [Here follows description by metes and bounds of 80 acres of land.] Together with all and singular the rights, members and appurtenances thereto belonging. To have and to hold to him, the said John Powell, the said land and premises for and during his natural life, and in the event that the said John Powell shall die without an heir or heirs of his body, then the said land and premises shall descend to and vest in M. A. Powell and L. C. Powell, junior, the heirs of the vendors Luke C. Powell and Mrs. S. E. Powell, husband and wife. And it is expressly understood, designed and intended that this deed of conveyance shall not take effect until after both of our deaths, and we hereby reserve and retain the title to the said land and premises during our natural lives and at our deaths this deed shall be in full force and effect. Witness our hands," etc. At the time this instrument was so signed and acknowledged John Powell, the grantee named therein, was about 19 years of age, and lived with the makers thereof. The instrument was never delivered to him, but it was filed for record in the office of the county clerk of Bowie county, December 4, 1888, and was recorded December 17, 1888. Thereafterwards it was kept by L. C. Powell and his wife in a trunk where they kept other papers belonging to them. John Powell moved to the land in 1893, built a house on it, and cleared about 20 acres of it. L. C. Powell died in 1894. John Powell married in 1900, and with his wife lived on and used the land as a home until she died in 1902. He married again in 1903, but did not again live on the land until 1909, when he and his wife moved to it, and thereafterwards resided on and used it as their homestead. The land was part of a tract of about 700 acres owned by L. C. Powell and his wife, S. E. Powell. By a deed dated February 16, 1905, the latter, joined by heirs of her deceased husband and by John Powell, conveyed the entire tract, including the 80 acres above referred to, to one J. O. Stribbling, who by a deed dated May 4, 1910, conveyed same to S. S. Ott. The wife of John Powell did not join him in the execution of the deed to Stribbling. She claimed that the 80-acre tract was her homestead. John Powell, it seems, was induced to join in the execution of the deed conveying the 80 acres as a part of the tract of 700 acres by representations made to him by Mrs. S. E. Powell that Stribbling would not purchase unless he could get the entire 700 acres, and by her assurance that, if he joined in the conveyance, a part of the purchase price to be paid by Stribbling would be paid over to him as a consideration for his conveyance of such interest as he had in the 700-acre tract, including the 80 acres. It seems Mrs. S. E. Powell failed, when the purchase price was paid by Stribbling, to pay over any part of it to John Powell. Claiming that by virtue of the instrument set out above he had a life estate in the 80 acres, and as the adopted heir of L. C. Powell, deceased, owned absolutely an undivided interest therein, and further claiming that at the time he joined in the deed to Stribbling the 80 acres was his homestead, and that because it was, and because his wife did not join in the execution of the deed, it did not operate to devest them of their homestead right, John Powell, in 1909, as stated above, moved with his wife to the land and thereafterwards occupied, used and claimed it as their home. The suit was the statutory one of trespass to try title. It was brought by appellee, Ott, the purchaser from Stribbling, against John Powell, to recover the 80 acres of land described in the instrument set out above. The trial was by the court without a jury. The judgment was in favor of appellee.

Geo. W. Johnson, of New Boston, for appellant. Rodgers & Dorough, of Texarkana, for appellee.

WILLSON, C. J. (after stating the facts as above).

The parties agreed that the titles respectively asserted by them emanated from L. C. Powell and Mrs. S. E. Powell, his wife. Therefore it can be said that the legal effect of the deed to Stribbling was to vest in him a good and perfect title to the land in controversy, unless at the time the deed was executed it was the homestead of appellant and his wife. If it was then their homestead, the interest or estate owned by them did not pass to Stribbling, because appellant's wife did not join him in the execution of the deed purporting to convey same. Const. art. 16, § 50; Sayles' Stat. art. 636. The judgment involves a finding that the land was not then the homestead of appellant and his wife. Unless the contrary of this finding was established by the testimony, the judgment is not erroneous as claimed by appellant, and it should be affirmed.

In determining the question indicated, the inquiry first suggested by the record is: Did appellant own an interest in the land entitling him and his wife to claim it as a homestead? His contention is that he did in one or both of two ways: (1) That as an adopted heir of L. C. Powell on the death of the latter he took by inheritance an undivided interest in it, and owned it as a tenant in common with the other heirs, and the widow, of said L. C. Powell; and (2) that by virtue of the instrument set out in the statement he owned a life estate in it.

It is settled in this state that a tenant in common may acquire a homestead in land he owns in common with others. Clements v. Lacy, 51 Tex. 150; Jenkins v. Volz, 54 Tex. 636; Southwestern Mnfg. Co. v. Swan, 43 S. W. 813; Lewis v. Sellick, ...