Rutherford v. McGee

Decision Date01 April 1922
Docket Number(No. 9866.)
Citation241 S.W. 629
PartiesRUTHERFORD v. McGEE.
CourtTexas Court of Appeals

Appeal from District Court, Young County; H. F. Weldon, Judge.

Trespass to try title by W. C. McGee against R. D. Rutherford, as guardian, and another, and a suit by R. D. Rutherford, as guardian, against W. C. McGee to foreclose vendor's lien notes and to recover an interest in the land, which were consolidated for trial. From a judgment awarding the land to McGee, subject to the payment of the vendor's lien notes without interest from the date of tender and without attorney's fee, Rutherford appeals. Reversed, and judgment rendered, giving McGee the land subject to payment of the vendor's lien notes with interest and attorneys' fees.

Marshall & King, of Graham, and S. S. Sibley, of Dallas, for appellant.

Kay, Akin & Kenley, of Wichita Falls, and Johnson & Johnson, of Graham, for appellee.

CONNER, C. J.

W. C. McGee instituted suit on February 11, 1921, against R. D. Rutherford as guardian, and against Lee Rutherford, his ward, a minor, in trespass to try title to recover a tract of land in Young county. He also presented a second count wherein he alleged a prior purchase of the land from R. D. Rutherford as guardian, upon specified terms, and upon which there yet remained of the purchase money certain specified vendor's lien notes for specified amounts, of which plaintiff pleaded tenders; further alleging that said guardian was claiming an interest in said lands, but which he was estopped from claiming because of matters set up in the plea. On the same day and in the same court, the guardian filed suit against McGee, declaring upon the vendor's lien notes that had been given by McGee as part of the purchase money for the lands in question, and also claiming a life estate in one-third of the land in question. The two suits were consolidated and tried as one, and from the judgment therein this appeal has been prosecuted.

The facts, briefly stated, upon which the judicial controversy rests, are that the tract of land described in the pleadings was owned in the separate right of Mrs. Rutherford, the mother of the minor, Lee Rutherford, who died, leaving her husband, R. D. Rutherford, and her infant child, Lee Rutherford, surviving. Thereafter R. D. Rutherford, the father, in due manner and form applied for appointment as guardian of the person and estate of said minor. He was duly appointed and qualified as such, and in due time formally presented and had filed an inventory and appraisement of the estate of his minor child, which was duly approved. The land in question was listed and appraised as the property of the minor. Thereafter the guardian in due manner and form presented an application for the sale of the land, in order, among other things, to provide for the discharge of an early maturing incumbrance of $2,500. The application was duly granted, and the guardian authorized to sell as prayed for. Thereafter the guardian effected a sale of the land to the appellee, W. C. McGee, upon terms to be hereinafter mentioned. The sale was duly reported to the probate court, and by that court duly approved, and on, to wit, the 13th day of July, 1918, pursuant to the court's order approving the sale, R. D. Rutherford executed and delivered to W. C. McGee a deed to the land. The deed embodies the several necessary orders of the court, describes the land, and conveys full title thereto in consideration of the sum of $1,000 in cash, the assumption of the $2,500 obligation already referred to, and the execution and delivery to R. D. Rutherford of five notes, each for the sum of $820, all bearing interest from the first day of January, 1918, at 7 per cent. per annum, and payable annually, one each year on January 1st thereafter until all were paid, with privilege on the part of Magee to pay all at any time. The deed was signed by "R. D. Rutherford, Guardian of the Said Ralph Lee Rutherford, a Minor," and was duly acknowledged by R. D. Rutherford before a notary public "as the guardian of the estate of Ralph Lee Rutherford, a minor, for the purposes and consideration therein expressed, and in the capacity therein stated." The deed also contained the usual habendum clause, and included the following warranty:

"I do hereby warrant and forever defend the title to said land unto the said W. C. McGee against all persons claiming or to claim the same or any part thereof. It is specially agreed that all mineral substances is hereby conveyed with said land, without reservation of any kind."

Thereafter the appellee, McGee, paid the note first maturing, and, having heard that appellant, R. D. Rutherford, was claiming an interest in the land in question, he, in October, 1920, deposited in a bank in Dallas, where R. D. Rutherford was residing, the amount, principal and interest, due upon the remaining unpaid vendor's lien notes that had been executed by McGee, with directions to the bank to pay said sum to Rutherford upon the execution of a quitclaim deed, duly executed by Rutherford to whatever interest, if any, he had in the land. Rutherford, upon notification, refused to receive the moneys upon such condition, insisting that he had a life estate of one-third in the lands. No other objection to the sufficiency of the tender was made, nor is it objected that the tender was not otherwise sufficient or not continued.

Upon the refusal of R. D. Rutherford to execute the quitclaim deed and receive the amount due upon the notes, Magee instituted his suit as stated in the beginning, and Rutherford instituted his suit to recover the principal, interest, and attorney's fees as in the notes specified. It should be further stated that the judgment directed the payment of the sum tendered by McGee in satisfaction of his notes to Rutherford, but denied Rutherford a recovery of the attorney's fees and interest from and after the date of his tender in October, 1920, and further vested full title to the land in McGee. Such further facts as may be necessary to an understanding of our opinion will be stated in connection with the subjects discussed.

The controlling questions presented on this appeal are:

1. Whether under the circumstances the appellant, R. D. Rutherford, is estopped to claim a one-third life estate in the land in controversy as held by the court below; and (2) whether the court erred in denying appellant interest and attorney's fees on the vendor's lien notes made the foundation of his suit.

Article 2462, V. S. Tex. Civ. Statutes, provides that where any person having title to an estate of inheritance shall die intestate as to such estate, and shall leave a surviving husband or wife, or a child or children, as was the case of Mrs. Rutherford at the time of her death, then the surviving husband or wife shall be entitled "to an estate for life in one-third of the land of the intestate, with remainder to the child or children of the intestate, and their descendants." So that it is beyond question that R. D. Rutherford at and prior to the time he executed the deed in controversy to appellee, McGee, owned and was entitled to an estate for life in one-third of the land so conveyed to appellee, and appellant's contention is that a deed signed by a guardian as such does not convey the individual interest of the guardian, or estop him from claiming his interest therein. In support of this contention he cites Devlin on Deeds, vol. 2, § 1280; Merchants' National Bank v. Eustis, 8 Tex. Civ. App. 350, 28 S. W. 227; Carothers v. Alexander, 74 Tex. 309, 12 S. W. 4. Of the authorities so cited, the section from Devlin on Deeds seems most directly in point. It is there said:

"A deed can bind a party by way of estoppel only in the capacity in which he executed it. One who executes a deed as the attorney in fact for another is not precluded from subsequently setting up a title to the land, which had been acquired by him prior to the execution of the deed from the person for whom he acted as attorney in fact"—citing Smith v. Penny, 44 Cal. 161.

A number of other authorities might be cited to the same effect, but in this state the rule in such cases would seem to be otherwise. See Millican v. McNeill, 102 Tex. 189, 114 S. W. 106, 21 L. R. A. (N. S.) 60, 132 Am. St. Rep. 863; Ford v. Warner (Tex. Civ. App.) 176 S. W. 885; Moody v. Bonham (Tex. Civ. App.) 178 S. W. 1020, writ of error refused. The case of Millican v. McNeill, supra, decided by our Supreme Court, was one in which McNeill owned a life estate in certain property, and conveyed it to others as administrator. The deed as here purported to convey the entire estate. On this subject the court said:

"The principle controlling this case is that which estops the maker of a deed purporting to convey an estate of a particular kind from afterwards asserting that such an estate did not pass. McNeill owned the life estate when he made the deed in question, and had full power to convey it then. His deed undertakes to convey the lot itself and full title to it as the property of the estate, without mention or reservation of any claim of his own. Although he assumes to convey as administrator, he assumes as well that the title is in the estate, and he should not be heard afterwards to assert that any part of it was in himself."

It was further said that, while there might be some diversity of opinion on the question, the "weight of authority is said to...

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