Stiles v. Japhet

• Decision Date: 22 March 1892
• Citation: 19 S.W. 450
• Parties: STILES v. JAPHET.
• Court: Texas Supreme Court

19 S.W. 450

STILES v. JAPHET.

Supreme Court of Texas.

March 22, 1892.

Commissioners' decision. Section A. Error from district court, Harris county; JAMES MASTERSON, Judge.

Trespass to try title by Ann M. Stiles against J. Japhet. Defendant obtained judgment. Plaintiff brings error. Affirmed.

Hutcheson, Carrington & Sears, for plaintiff in error. E. P. Hamblen, for defendant in error.

MARR, J.

Mrs. Ann M. Stiles, as a feme sole, brought this action of trespass to try title in the district court on April 22, 1890, to recover of the defendant in error, J. Japhet, a certain parcel of land in Harris county, which she claimed as her separate property. She was formerly the wife of one W. W. Stiles, and during the continuance of the marriage relation between them the land now in controversy was on July 22, 1846, conveyed to her by P. J. Willis for a valuable consideration, and the deed was taken in her name; but she is not described in the deed as the wife of W. W. Stiles, nor is he mentioned therein. There is, however, no recital in the deed that purchase was made with the separate money or property of Mrs. Stiles. Subsequently, her husband conveyed the land to her brother, John L. Bryan. This deed was made in February, 1853. Bryan conveyed to William Gammell, and the "sole heir" of the latter conveyed the land to William Bucham and others, and they conveyed it to A. Vomerk, by different deeds, in 1873 and 1874. Vomerk and wife, for a valuable consideration, conveyed the land to the defendant in error upon the 16th day of May, 1889. Vomerk held actual and undisturbed possession of the land from the time of his purchase until he sold to the appellee. It is under the deed from W. W. Stiles to John L. Bryan, and the other deeds above mentioned, that the defendant in error claims title to the land in dispute. He pleaded that the land was community property, or at least apparently so, and that he purchased the same in good faith, without notice that it had been originally purchased by Mrs. Stiles with her separate means, if such was the fact. There was verdict and judgment in his favor in the court below, and the plaintiff has prosecuted a writ of error. Her counsel have assigned, in the first place, the following error: "First. The court erred in instructing the jury that the deed made by Willis to Stiles conveyed to Ann M. Stiles property in community with her husband, as between her and parties purchasing without notice; the error consisting (1) in the fact that the deed, upon its face, conveyed her separate property; (2) that if it was not, in terms, a conveyance of separate property, the terms employed were such as to put a party upon notice, and the court should have so charged the jury; (3) the court failed to give the correct interpretation of the law, which was that the deed from P. J. Willis to Ann M. Stiles, followed by a deed from Ann M. Stiles to her husband, W. W. Stiles, were such facts as should have put a party upon notice, and had them make the inquiry as to what money paid for the land, and whether it was in fact community or separate, and charged the very reverse of those propositions." These assignments may be considered together.

The habendum clause in the first deed referred to above, and which is relied upon as sufficient to vest a separate estate in Mrs. Stiles in the land, or at least to put the purchaser upon inquiry, is, including the warranty, to the following effect: "To have and to hold the said land and premises, with the said improvements, appurtenances, rights, privileges, etc., as herein described, to the said Ann M. Stiles, her heirs and assigns, to her proper use, benefit, and behoof forever, in fee simple. And I, the said Peter J. Willis, do warrant the said land against all troubles, debts, mortgages, and against the lawful claim or claims of all persons whatsoever, to the said Ann M. Stiles." The other deed, mentioned in the third assignment of error as indicative of notice to the purchaser of the rights of Mrs. Stiles, is one which purports to have been made by her to her then husband, W. W. Stiles, on the 5th of February, 1852, to the land in dispute, but was recorded without her privy acknowledgment ever having been taken. This deed, like the other, does not describe the land as her separate property, nor recite that it had been purchased with her separate means, nor does it even indicate that the parties were husband and wife. The effect of this deed, as well as the charge of the court in relation thereto, will be considered under another assignment of error. There is evidence tending to show that "the deed from Willis to the plaintiff in error was made in consideration of a sale of a negro, her separate property, sold and invested in said land;" but none of the deeds in the defendant's chain of title recite this all-important fact. Two of them mentioned the property conveyed "as once the homestead of W. W. Stiles, purchased by Ann M. Stiles of Peter Willis." This recital, however, plainly does not indicate the separate character of the property, and cannot amount to any more than the original deed from Willis. In reference to this last deed the charge of the court was as follows: "The deed in evidence from Willis to Ann M. Stiles, for the land in controversy, if she was then the wife of W. W. Stiles, would, as to third parties purchasing without notice and for a valuable consideration, and without notice of such facts as would put a man of ordinary caution upon inquiry, be community property, and the husband could convey it without his wife joining in the deed to such purchase. If you find from the evidence that defendant, when he purchased from Vomerk and wife, had no notice of Mrs. Stiles' claim to the land in suit, otherwise than by the deed to her from Willis, and that he paid cash for it or gave negotiable notes, which were negotiated to innocent parties, then you will find for the defendant." We are of the opinion that this instruction is, under the facts of this case, correct, and in accord with the long-established doctrine upon the subject in this state. We do not see that it would serve any useful purpose to review the authorities. The decisions of the supreme court are numerous upon the point, and we will cite some of them. Vide Scott v. Maynard, Dall. Dig. 548; Parker v. Chance, 11 Tex. 514; Cooke v. Bremond, 27 Tex. 457; Kirk v. Navigation Co., 49 Tex. 213; Wallace v. Campbell, 54 Tex. 87; Dooley v. Montgomery, 72 Tex. 429, 10 S. W. Rep. 451, etc. It has become, not only a rule of decision, but a settled rule of property, in this state, that all property acquired by the husband and wife during marriage, whether the deed be in the name of the one or the other, upon a consideration deemed valuable in law, is presumed to be community property, which the husband may dispose of, and a purchaser from or under the husband may rely upon this presumption; and the fact that the deed to the property is in the name of the wife alone will not, of itself, give him notice of her separate claim or right to the property, apart from the community, nor even put him upon inquiry. Authorities, supra.

But we have been earnestly pressed by counsel not to extend the doctrine announced in Cooke v. Bremond. We have no such inclination nor intention; and unless the language used in the deed from Willis to Mrs. Stiles is of greater significance, as indicative of the separate rights of the wife in the property, than that employed in the several deeds which were construed in Cooke v. Bremond, Parker v. Chance, Kirk v. Navigation Co., Wallace v. Campbell, and many other analogous c...