Sanderson v. Sanderson

• Decision Date: 03 November 1937
• Docket Number: No. 1697-6946.,1697-6946.
• Citation: Sanderson v. Sanderson, 109 S.W.2d 744, 130 Tex. 264 (Tex. 1937)
• Parties: SANDERSON v. SANDERSON.
• Court: Texas Supreme Court

109 S.W.2d 744

SANDERSON v. SANDERSON.

No. 1697-6946.

Commission of Appeals of Texas, Section B.

November 3, 1937.

COPYRIGHT MATERIAL OMITTED

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

Suit by Mrs. Emily Sanderson against J. J. Sanderson, individually, and as executor of the estate of Mrs. S. P. Kelton, deceased. Judgment for the defendant was reversed by the Court of Civil Appeals (82 S.W.(2d) 1008), and defendant brings error.

Affirmed.

D. J. Brookreson, of Benjamin, for plaintiff in error.

G. G. Hazel, of Sudan, for defendant in error.

SMEDLEY, Commissioner.

The suit is by Mrs. Emily Sanderson, a widow, against J. J. Sanderson, individually and as executor of the estate of Mrs. S. P. Kelton, deceased, for the title and possession of certain real property, the petition in its first paragraph presenting a formal action in trespass to try title and in its subsequent paragraphs pleading the title specially. It is alleged that Mrs. Kelton owned a house and several lots in the town of Knox City, in Knox county, and a farm in Haskell county, and that she and the plaintiff, Mrs. Sanderson, both being widows, executed the following written instrument: "To Whom It May Concern:

"This is to certify that on this the 15th day of May, 1933, Mrs. Sallie Kelton and Mrs. Emily Sanderson enter into and agree on the following contract:

"Mrs. Kelton agrees to give Mrs. Sanderson to have and to hold forever the town house and all lots now owned by Mrs. Kelton; said lots and house located in Knox City; also household goods.

"Mrs. Kelton also agrees to give all income derived from her farm located in Haskell County to Mrs. Sanderson during the lifetime of Mrs. Sanderson, after the death of Mrs. Kelton.

"For which Mrs. Sanderson agrees to live with and take care of Mrs. Kelton during the lifetime of Mrs. Kelton.

"Mrs. B. J. Kelton. Mrs. Emily Sanderson
                "Witness: J. W. Barnett D. C
                          "Edna C. Barnett D. C."
                

The petition further alleges that Mrs. Sanderson in compliance with the contract went to live with Mrs. Kelton in the house owned by Mrs. Kelton and faithfully cared for her, waited upon her and worked for her from the time of the execution of the contract, May 15, 1933, until early in the year 1934, when Mrs. Kelton wrongfully and without fault on the part of Mrs. Sanderson removed Mrs. Sanderson's personal property from the house and forced her to leave and thereafter until Mrs. Kelton's death on March 14, 1934, refused to permit Mrs. Sanderson to live with her or care for her and thus rendered it impossible for Mrs. Sanderson to complete the performance of her agreement. It is further alleged that Mrs. Sanderson at all times was ready and willing to perform the agreement and offered to do so and often notified Mrs. Kelton of her willingness to resume living with her and to continue to care for her, but that Mrs. Kelton steadfastly refused to permit her to return to the house and declined to accept further services from her.

The defendant presented in his answer a general demurrer and several exceptions which, while designated special exceptions, are in effect general demurrers. Three of the exceptions were sustained by the trial court and, when the plaintiff declined to amend, judgment was rendered dismissing the suit. The Court of Civil Appeals reversed the trial court's judgment and remanded the cause for trial, holding that the exceptions sustained by the trial court were not well taken. 82 S.W.(2d) 1008.

Since the plaintiff, in addition to her formal action of trespass to try title, pleaded particularly the written instrument and other facts constituting the basis and showing the nature of her claim to the property, the question to be determined in disposing of the exceptions is the sufficiency of the facts particularly averred. Snyder v. Nunn, 66 Tex. 255, 18 S.W. 340; McDonald v. Bank, 74 Tex. 539, 12 S.W. 235; Mayers v. Paxton, 78 Tex. 196, 14 S.W. 568; Martinez v. Gutierrez (Tex.Com.App.) 66 S.W.(2d) 678, 683. The first special exception sustained by the trial court presents the objection to the petition that the contract relied upon by the plaintiff is too vague, uncertain, and indefinite to be binding on the parties. The instrument is informal and somewhat meager. It is in our opinion not a deed. It contains no words of conveyance and does not indicate an intention on the part of Mrs. Kelton presently to invest Mrs. Sanderson with entire control and dominion over the property. Baker v. Westcott, 73 Tex. 129, 133, 11 S.W. 157; Tompkins v. Broocks (Tex. Civ.App.) 43 S.W. 70 (application for writ of error refused). The instrument is an executory contract binding, at its execution, upon both parties, the promise of one party being the consideration for the promise of the other. It clearly evidences the agreement that Mrs. Sanderson shall live with and take care of Mrs. Kelton until the latter's death and that for such services she shall receive and have full title and ownership of Mrs. Kelton's town house and household goods and all lots owned by Mrs. Kelton in Knox City, together with all income, during Mrs. Sanderson's lifetime after Mrs. Kelton's death, from a farm in Haskell county owned by Mrs. Kelton. While the instrument does not specify in detail the extent or nature of the care that Mrs. Sanderson shall take of Mrs. Kelton, we believe the intention of the parties in this particular may be ascertained to a reasonable degree of certainty from the language used when considered in the light of the age, physical condition, and circumstances of the parties at the time of the execution of the instrument. As to the time of performance on the part of Mrs. Kelton of her agreement to give Mrs. Sanderson the property described in the contract, we think the instrument read as a whole clearly discloses the intention of the parties that control and ownership shall remain in Mrs. Kelton until her death and that thereupon Mrs. Sanderson shall have and own the property.

Another exception questions the sufficiency of the description contained in the contract to identify the town lots and the farm. The contract describes the house and lots as the town house and all lots "now owned by Mrs. Kelton located in Knox City" and describes the land in Haskell county as Mrs. Kelton's farm in Haskell county. The description of the lots as all lots now owned by Mrs. Kelton in Knox City is sufficient, for it leads to the certain identification of the property. The sufficiency of the description of the farm in Haskell county cannot be determined on demurrer. If the evidence establishes the fact that Mrs. Kelton owned only one farm in Haskell county at the time the contract was executed, the description will be sufficient. If, on the contrary, it is proven that Mrs. Kelton owned more than one farm in Haskell county at that time, the description of the farm will be insufficient as not affording data by which the property can be identified; and such insufficiency in the description of the farm, so shown, will require the denial of specific performance of the contract. Hermann v. Likens, 90 Tex. 448, 39 S.W. 282; Vineyard v. O'Connor, 90 Tex. 59, 36 S.W. 424; Taffinder v. Merrell, 95 Tex. 95, 65 S.W. 177, 93 Am.St.Rep. 814; Smith v. Sorelle, 126 Tex. 353, 87 S.W.(2d) 703.

The third exception sustained by the trial court invokes the rule as to mutuality of remedy and presents the contention that a court of equity will not attempt to specifically enforce the contract which calls for personal services on the part of the plaintiff, because it appears from the petition that such services have not been fully performed. Defendant in error takes the position that the rules governing suits for specific performance have no application to the suit which, she submits, is for the recovery of the property in virtue of equitable title given her by the contract. The authorities relied upon are those holding that the vendee in the ordinary executory contract for the sale of real estate acquires at the time the contract is executed the equitable title to the property, subject to lien securing the purchase price. Tompkins v. Broocks (Tex.Civ.App.) 43 S.W. 70, (application for writ of error refused); Russell and Seisfeld v. Kirkbride, 62 Tex. 455. This change in the beneficial title results from the application of the doctrine of equitable conversion, equity regarding as done that which ought to be done. Pomeroy's Equity Jurisprudence (4th Ed.) vol. 1, § 105, pp. 117-119; § 368, pp. 685, 686. But the doctrine of equitable conversion is not applicable to a contract like that here under consideration. Upon the execution of this contract something other than the payment of money remained to be done. The personal services yet to be rendered by Mrs. Sanderson throughout the remainder of Mrs. Kelton's life could not be regarded as performed at the execution of the contract. The agreement contemplated the retention by Mrs. Kelton of the full title to the property until her death. Under such contract the equitable title or right to the property would not pass until Mrs. Kelton's death. Northern Texas Realty & Construction Co. v. Lary (Tex...