Smith v. Buss

• Decision Date: 13 November 1940
• Docket Number: No. 7568.,7568.
• Citation: 144 S.W.2d 529
• Parties: SMITH et al. v. BUSS et al.
• Court: Texas Supreme Court

Page 529

144 S.W.2d 529

SMITH et al. v. BUSS et al.

No. 7568.

Supreme Court of Texas.

November 13, 1940.

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

Suit by Ruth Elizabeth Buss and others against C. K. Smith and others, to recover title and possession of land, wherein defendant C. K. Smith filed a cross-action. To review a judgment of the Court of Civil Appeals, 125 S.W.2d 712, reversing a judgment for defendant C. K. Smith on his cross-action and directing judgment for plaintiffs, defendants bring error.

Judgment of the Court of Civil Appeals affirmed.

S. N. McWhorter, of Weslaco, for plaintiffs in error.

Griffin & Kimbrough, of McAllen, and Leroy H. Buss, of Weslaco, for defendants in error.

CRITZ, Justice.

This suit was filed in the District Court of Hidalgo County, Texas, by Ruth Elizabeth Buss, joined pro forma by her husband, Leroy H. Buss, Katherine Wall, joined pro forma by her husband, T. A. Wall, Jr., and Rosemary Hall, joined pro forma by her husband, G. M. Hall, against C. K. Smith and his wife and several others to recover title and possession of certain land in Hidalgo County, Texas, described in the petition as follows: "The South Ten (10) acres of Farm Tract No. Seven Hundred Twenty-seven (727) of the West Tract Subdivision of lands out of the Llano Grande Grant, Hidalgo County, Texas, as per map or plat thereof on record in the office of the County Clerk of Hidalgo County, Texas, to which reference is here made."

It is alleged in the plaintiffs' petition that they owned the fee simple title to the above-described land, except that their father, Thomas F. Rives, and his grantees and assigns own a life estate in an undivided one-third thereof. We shall not attempt to detail the pleadings. It is enough to say that we treat them as sufficient to raise the questions of law which we shall discuss and decide.

Plaintiffs in the district court claimed title to this land as children and heirs at law of their mother, Mrs. Mary Rives, deceased wife of their father, Thomas F. Rives. The defendants claim title through certain deeds made by Thomas F. Rives acting as qualified community survivor of the community estate of his deceased wife and himself.

On March 22, 1924, J. S. Moore and wife, Elizabeth Moore, by two separate general warranty deeds conveyed to Mrs. Mary Rives two tracts of land out of Farm Tract No. 727 in Hidalgo County, Texas. These two deeds seem to be identical in every particular, except that one purports to convey 15.75 acres of land, and the other 14.75 acres. As we understand this record, the land involved in this suit is part of the land included in one or both of the above two deeds.

In each of the deeds above mentioned, omitting formal parts, it is first recited: "That I, J. S. Moore, joined herein by my wife, Elizabeth Moore, of the County of Henry and the State of Missouri for and in consideration of the sum of Twenty two Hundred Twelve and 50/100 ($2212.50) Dollars, to us paid and secured to be paid by Mrs. Mary Rives, out of her own separate property, funds and estate, as follows: The sum of Seven Hundred Thirty seven and 50/100 ($737.50) dollars in cash, the receipt of which is hereby confessed and acknowledged, and the balance of said consideration, to-wit: The sum of Fourteen Hundred Seventy five ($1475.00) dollars is represented by Five (5) promissory vendor's lien notes, in the principal sum of Two Hundred Ninety five ($295.00) dollars, each, executed by the Grantee herein and payable to the order of J. S. Moore and Elizabeth Moore, bearing even date herewith and due and payable in One (1) to Five (5) years after date, respectively, bearing interest at the rate of Six (6%) per cent per annum from date until maturity, and at the rate of Ten (10%) per cent per annum thereafter until paid, providing for the payment of Ten (10%) per cent additional on the amount of principal and interest then due, as attorney's fees, if placed in the hands of an attorney for collection, etc., and further providing that a failure to pay each or any of said notes at maturity will, at the option of the owner and holder thereof, mature all of said notes."

After the above the two deeds proceed to convey to Mrs. Mary Rives the land described therein in the usual form of a general warranty deed. Nothing is said in the granting, habendum, or warranty clauses about the land being conveyed as the separate property or estate of Mrs. Mary Rives.

On August 28, 1924, Mrs. Mary Rives died, leaving as her only surviving heirs at law her surviving husband, Thomas F. Rives, and the three daughters above named, all then minors.

During the year 1925, after the death of Mary Rives, Thomas F. Rives duly qualified in the County Court of Hidalgo County as community survivor of the community estate of his deceased wife and himself. In such community survivorship proceedings the county court appointed appraisers, and such appraisers, with Thomas F. Rives, returned into court what purported to be an inventory and appraisement of the community estate of Mary Rives, deceased, and her surviving husband. Among the items of property so inventoried and appraised were the two tracts of land conveyed to Mrs. Mary Rives by the two deeds executed by J. S. Moore and wife, supra. Such inventory and appraisement was duly approved by the county court. After qualifying as community survivor Thomas F. Rives sold the land here involved. In making such conveyance he acted for himself and as community survivor of the community estate.

We shall not attempt to trace the title of the various defendants. It is enough to say that if the deed of Thomas F. Rives operated to convey the title, they should recover, and the judgment of the district court should be affirmed; if it did not, plaintiffs should recover, and the judgment of the Court of Civil Appeals should be affirmed. If the land was the community property of Thomas F. Rives and his deceased wife, his deed conveyed the entire title. If the land was the separate estate of the wife, then her three daughters, as her heirs, succeeded to her title, except the surviving husband succeeded to a life estate in one-third thereof. Art. 2571, R.C.S.1925. Of course, all property acquired by either the husband or the wife during marriage, except that which is the separate property of either, is deemed the community of the husband and wife. Art. 4619, R.C.S.1925. It follows that even if this land was the separate property of Mary Rives, the deceased wife, still, if the vendee of Thomas F. Rives took without notice of that fact, he took good title. Alexander v. Barton, Tex.Civ.App., ...