Sisk v. Randon

• Decision Date: 18 November 1930
• Docket Number: No. 9433.,9433.
• Citation: 33 S.W.2d 1082
• Parties: SISK et al. v. RANDON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

33 S.W.2d 1082

SISK et al. v. RANDON et al.^*

No. 9433.

Court of Civil Appeals of Texas. Galveston.

November 18, 1930.

Rehearing Denied November 26, 1930.

Appeal from District Court, Brazoria County; W. S. Sproles, Special Judge.

Action by R. J. Sisk and others against Adranna Randon and others. Judgment for defendants and plaintiffs appeal.

Affirmed.

Styles & Erickson, of Bay City, A. E. & C. B. Masterson, of Angleton, and Oliver J. Todd, of Beaumont, for appellants.

Follett, Evans & Hill and Rucks & Enlow, all of Angleton, and Harry Holmes, Andrews, Streetman, Logue & Mobley, and Palmer Bradley, all of Houston, for appellees.

GRAVES, J,

Appellants assail an adverse judgment whereby—pursuant to the return of an instructed verdict to that effect, notwithstanding their own claims of ownership thereof both as heirs of William and Millie Alston and under the three, five, and ten-year statutes of limitation—the learned trial court vested in the appellees the title to the easterly 50 acres, or river end, of the William and Millie Alston 100-acre homestead tract in the Alsbury league on the Bernard river in Brazoria county.

In the state of the record on appeal the controlling question presented here is whether or not the appended instrument the appellees held under should be construed as being such a conveyance on its face as passed the title to the 50 acres involved to its grantees immediately upon delivery to them, or whether, as appellants contend, it should be regarded as at most only such an executory undertaking as rendered parol testimony tending to show that, it was intended as a mortgage or deed of trust admissible, to wit:

"The State of Texas, County of Brazoria.

"Know all Men By These Presents: That we, William Alston and Millie Alston, his wife, of the County of Brazoria, State of Texas, for and in consideration of the sum of ten ($10.00) dollars to us in hand paid by our daughter, Adranna Randon, and her husband, Emanuel Randon; the receipt of which is hereby acknowledged, and further consideration of the care and attention and services rendered us in our old age by said Adranna and Emanuel Randon, and the further considerations of the undertaking and obligations on the part of said Adranna and Emanuel Randon, to take care of and provide for us during our natural lives, and the love and affection which we have for our said Daughter Adranna Randon and our Son-in-law Emanuel Randon, have Granted, Sold, and Conveyed, and do by these presents, Grant, Sell, and Convey unto Adranna Randon and Emanuel Randon of the County of Brazoria, State of Texas;

"1st. All that certain tract or parcel of land lying and being situated in Brazoria County, Texas, and being one hundred (100) acres of land out of the C. G., H. A. and H. O. Alsbury one and one-half league Grant, Abstract No. 4, situated on the West bank of the San Bernard River, and being out of the upper portion of the said grant, (description) * * * The tract herein conveyed being the upper half of the two hundred acre Homestead tract of the grantors, (description) * * * the tract herein conveyed being the tract on which grantors now reside.

"2nd. All the Live Stock which Grantors now own, etc. * * *

"To have and to hold the above described premises, together with all and singular the rights and appurtenances thereto in anywise belonging unto the said Adranna Randon and Emanuel Randon, their heirs and assigns forever, subject to the terms and conditions hereinafter provided, and we do hereby bind ourselves, our heirs, executors and administrators to warrant and forever defend all and singular the said premises unto the said Adranna Randon and Emanuel Randon, their heirs and assigns forever against all persons whomsoever lawfully claiming or to claim the same or any part thereof.

"The terms and conditions of this conveyance being that the said Emanuel Randon and Adranna Randon shall immediately take charge of all the property herein conveyed and shall hold, cultivate, or rent, manage and control same during our natural lives giving and granting to the said Emanuel and Adranna, full power to at any time mortgage or sell and convey, for such prices as they deem best, any part or all of the personal property herein conveyed and its increase and all crops raised on said land, the proceeds derived therefrom to be retained by said Adranna and Emanuel Randon, without any accounting therefor, to assist them in carrying their obligation to support the grantors herein.

"The said Adranna and Emanuel Randon shall take and it is the intention of the Grantors to convey to them by this instrument, the fee simple title to one-half of said tract herein conveyed, to be taken off of the River end of the said tract, including all of the river front and extending far enough back from the river to include one-half of said tract, with the improvements thereon situated, subject to the right of the grantors, if they should desire, which right is here reserved, to occupy the house in which they now live, during the life of either of them.

"The title to the western half of said tract of land shall be held in trust by the grantees herein in the proportion herein indicated, for Milli McKinney, of Galveston County, Texas, daughter of the grantors, one-fourth; William Alston, Jr., of Brazoria County, Texas, son of the grantors, one-fourth; Louise Alston and Thomas Hendrick, children of Louisa Alston, deceased, and grandchildren of Grantors, one-eighth each; and Georgie Boon, daughter of Mary Boon, deceased, and Granddaughter of Grantors, one-fourth. The above named as cestui que trust under this deed are to have no control or rights under this deed until after the death of the last survivor of the grantors herein, and no interest in the revenues derived from said property, or proceeds of any sales made during the life of the grantors. After the death of the last survivor of these grantors, then the said Adranna Randon and Emanuel Randon or the survivors, if either should die, shall convey to the above named cestui que trust their interest in the land as above designated, without accounting to either of them for the revenues of same up to the death of the last surviving grantor.

"If, at the death of the last surviving grantor herein, there should remain any of the personal property herein conveyed, the said Adranna Randon and Emanuel Randon, or the survivor of either shall take in fee simple one-half of said personal property, and the other half thereof shall be divided between the cestui que trust named herein in the same proportions as is above provided for the land.

"Witness our hands this 9th day of September, A. D. 1916.

                       her                        his
                "Millie X Alston           William X Alston
                      mark                        mark
                "Witness
                     "J. J. Ducroz
                     "C.C. Hampil."
                

While appellants formally sued for the entire 100 acres the quoted instrument thus described, only the title to the easterly or riverend half of it was actually at issue, as they admittedly owned the other one-half; the trial court held the legal effect of the instrument to have been an absolute conveyance at that time of the easterly 50 acres to the grantees to whom it was therein apportioned, and in consonance—in directing the verdict—ordered the finding to be in favor of the appellees as to that, and in favor of the appellants as to the remainder; we approve that determination and affirm the judgment.

It is felt that no better epitome of the considerations and supporting authorities, upon which this construction is rested, may be made than is thus done in the able brief for the appellees:

"Second Counter-Proposition.

"The deed from William Alston and wife, Millie Alston, to Adranna Randon and husband, Emanuel Randon, passed title to the fifty-acre tract involved herein immediately upon delivery; such deed was executory only in the sense that all the consideration was not fully performed, and this fact did not affect its validity as an executed conveyance of the homestead interest of Millie Alston.

"Third Counter-Proposition.

"The agreement on the part of Adranna Randon and husband, Emanuel Randon, `to take care of and provide for' William Alston and wife, Millie Alston, during their natural lives, was a covenant and not a condition, and in the event of a breach thereof, grantors would have been entitled to sue for damages rather than for a forfeiture or cancellation of such deed.

"Fourth Counter-Proposition.

"The reservation by William Alston and wife, Millie Alston, of the right `to occupy the house in which they now live during the life of either of them' was not a reservation of an estate in the 50-acre tract, but merely the reservation of a right to use the house as a home, which right was consistent with the vesting of a fee title in Adranna Randon and husband, Emanuel Randon, upon delivery of the deed.

Authorities.

Carey v. Starr, 93 Tex. 508, 56 S. W. 324; Cox v. Combs, 51 Tex. Civ. App. 346, 111 S. W. 1069; Emerson v. Pate (Tex. Civ. App.) 165 S. W. 469; Rosek v. Kotzur (Tex. Civ. App.) 267 S. W. 759; Stitzle v. Evans, 74 Tex. 596, ...