Sauvage v. Wauhop

• Decision Date: 02 January 1912
• Citation: 143 S.W. 259
• Parties: SAUVAGE v. WAUHOP.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

143 S.W. 259

SAUVAGE v. WAUHOP.^†

Court of Civil Appeals of Texas. Texarkana.

January 2, 1912.

Rehearing Denied January 11, 1912.

Appeal from District Court, Red River County; Ben H. Denton, Judge.

Action by W. A. Wauhop against Kate D. Sauvage. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The appellant brought the suit of trespass to try title and for partition of 213 acres of the C. A. Ballard survey and 219 acres of the John Bartley survey in Red River county. The two surveys are contiguous, as are the lands in suit. It was alleged that the lands were community property of Mary J. Wauhop and John W. Wauhop, both deceased. Appellant claims a one-half undivided interest as sister and sole surviving heir of Mary J. Wauhop. It was proven that she was the only heir. Appellant also sues to recover rents and the value of certain personal property alleged to have been converted and appropriated by the appellee, which either belonged to the community, or was separate property of Mary J. Wauhop. The appellee is the proven legally adopted heir of John W. Wauhop, but not the legally adopt heir of Mary J. Wauhop, and claims as devisee and sole heir under him, that the real estate was the separate property of John W. Wauhop. He further answered that John W. Wauhop died testate, and that Mary J. Wauhop was named as one of the beneficiaries and as executrix of the will, and if there was community realty that the will disposed of his separate property, as well as the community real and personal property of himself and Mary J. Wauhop, and that Mary J. Wauhop elected to claim under the will, and received benefits therefrom that she would not have received. John W. Wauhop made a will, and it was probated and later referred to. He died in September, 1903. Mary J. Wauhop died intestate October 21, 1907. The cause was submitted to the jury on certain special issues. The jury findings were that the Ballard land was the separate property of John W. Wauhop, and that Mary J. Wauhop elected to take under the terms of the will. The court made the finding that the Bartley land was partly separate and partly community property. A judgment was entered for appellee, except for the value of the crop of 1907, which was adjudged to belong to appellant as heir of Mrs. Wauhop.

Lennox & Lennox, for appellant. Chambers & Black and A. P. Dohoney, for appellee.

LEVY, J. (after stating the facts as above).

There is mainly involved here the controversy between the parties, first, as to the determination of whether all the land in suit was vested in the separate estate of John W. Wauhop, or partly the community of himself and wife; second, the proper legal construction that should be given the will of John W. Wauhop, and whether Mrs. Wauhop was put upon election and did elect to take under the will. There being no evidence of the character of the personalty, other than the land note of Chapman, it must here be presumed to have been the community property, and this is in effect admitted in the briefs. These questions are presented by proper assignments of error. One of the tracts in suit is the C. A. Ballard survey, and the other is the John Bartley survey. While the surveys are here mentioned, nevertheless in passing the fact is borne in mind that since the marriage of John W. Wauhop the original acreage of the surveys was reduced by sales by him to the acreage in suit. In order to constitute both surveys of land in suit the separate property of John W. Wauhop, the appellee first relies upon a deed from Bartley M. Ballard to James W. Wauhop, father of John W. Wauhop, dated September 23, 1843. The deed recites the consideration as "$1,800.00 to me in hand paid," and in words conveys "1,280 acres of land situated in Red River county about five miles N. E. from Clarksville, described as follows: [Then follow calls and distances]." After the signature to the deed follows: "And the said B. M. Ballard furthermore obligates himself to give the said Wauhop peaceable possession of said premises on or before the 1st day of January next." The field notes only describe the Bartley survey, it is admitted, and there were not 1,280 acres in such survey. Under and by virtue of an unconditional certificate for 1,280 acres, issued in 1841 to John Bartley, there was a location and survey of 600 acres of land in Red River county, which is the survey in suit. As the deed to "1,280 acres" admittedly does not embrace the Ballard survey, then there was no ambiguity in the description, and its legal effect was to pass title only to so much land as was contained in the specific tract of land therein described by metes and bounds, and the same could not be enlarged and extended, so as to embrace an adjoining survey which was in no wise mentioned under the terms of the instrument as a part of the conveyance. So the two tracts will have to be here traced separately to determine the question of separate or community ownership by John W. Wauhop. The Bartley survey is first considered.

John Bartley, it appears, made sale and transfer of his unconditional certificate to W. T. Montgomery and Bartley M. Ballard October 6, 1841. The location and survey of the 600 acres, however, appear not to have been made until September 11, 1855. The patent issued to the heirs of W. T. Montgomery and B. M. Ballard, assignees of John Bartley, for the tract February 22, 1870. No deed of sale appears by W. T. Montgomery to any one, and title to his one-half interest would appear outstanding, unless acquired by Wauhop by limitation. James W. Wauhop, the grantee in the deed mentioned, died in the year 1849—the exact date not being shown—but prior to November 26th. He left surviving him as only heirs the three children, John W., Wm. A., and Sarah. Wm. A. Wauhop died without issue in the war between the states. John W. Wauhop was married to Mary J. Wauhop, sister of appellant, on September 16, 1861. On February 27, 1867, Sarah Wauhop, sister of John W., joined by her husband, executed a deed to John W. Wauhop, conveying to him her undivided half interest in the Bartley land; the deed reciting "$2.50 per acre for the whole number of acres ascertained and found to be in the survey." Under these facts, it must be said that John W. Wauhop, by inheritance, got from his father a one-third interest in such title as the father had, which was the one-half undivided interest of B. M. Ballard, and later inherited one-half of the third interest of his brother William. After his marriage, John W. Wauhop then acquired the interest of his sister, and this would be presumed to be community. The outstanding interest of Montgomery, if acquired, must in the record here rest upon limitation. That such interest of Montgomery could not have been acquired by James Wauhop by limitation in his lifetime is manifest, because he died in 1849, and the certificate was never located and the land surveyed until September 11, 1855. So John W. Wauhop could not be held to have inherited from his father a completed limitation title of the Montgomery interest. It appears, therefore, furthermore that John Wauhop's claim to the half interest of Montgomery must rest in bare adverse possession begun by him, but not completed, before his marriage. As to whether this character of claim would be sufficient to constitute that interest separate property is later discussed, and decided to the contrary. It follows, as to the Bartley survey, that one-fourth interest is shown to be separate property, by inheritance, of John W. Wauhop, one-half community by limitation title, and the sister's purchased interest of one-fourth, presumed to be community.

The C. A. Ballard survey is next considered. A conditional certificate for 640 acres was issued to C. A. Ballard in 1842. An unconditional certificate was issued to him, by virtue of the conditional certificate, on February 3, 1845. On February 3, 1845, C. A. Ballard made sale and transfer of the unconditional certificate to B. M. Ballard. On September 10, 1855, there was a location and survey for B. M. Ballard of 613 acres of land in Red River county, which is this survey in suit, under and by virtue of the unconditional certificate. Patent issued to B. M. Ballard, assignee of C. A. Ballard, on October 4, 1858. There is no evidence in the record to show that John W. Wauhop, or his father before him, had any deed or paper title to the Ballard survey. But to show that the title vested in the separate estate appellee relies, first, on a judgment of the district court of Red River county as muniment of title connecting to the deed before mentioned of B. M. Ballard for "1,280 acres"; and, second, upon title by statute of limitation of 10 years. As in proper connection here, the question of limitation is taken up first. It appears that the unconditional certificate was issued in February, 1845, but there was no location and survey under it until September, 1855. It does not appear that there was location under the conditional certificate of 1842. So under the facts, and assuming that James Wauhop, the father, commenced his occupancy in 1844, it is manifest that he had no interest or right by reason of mere adverse possession under limitation laws that would descend to John W. Wauhop, one of his heirs, because it was in this record merely, in legal effect, occupancy of vacant, unappropriated public domain until the location and survey of the unconditional certificate in 1855, which was six years after his death. This reduces the question of title by limitation to adverse possession by John Wauhop before marriage, which, in the most favorable light to him, could not have begun before 1855, which was considerably less than 10 years before his marriage. As to whether the fact that limitation began to run before marriage would constitute it separate property is later discussed.

The judgment relied on as muniment of title is next considered. In September, 1870, N. W. and W. B....