Stratton v. Robinson

• Citation: 67 S.W. 539
• Parties: STRATTON et al. v. ROBINSON.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 01 February 1902
• Court: Court of Appeals of Texas

67 S.W. 539

STRATTON et al. v. ROBINSON.¹

Court of Civil Appeals of Texas.

February 1, 1902.

Appeal from district court, Johnson county; Wm. Poindexter, Judge.

Action by Volney Robinson, Jr., against M. L. Stratton and others. Judgment for plaintiff, and defendants appeal. Modified.

(1) Volney Robinson, Jr., sued M. L. Stratton and others in trespass to try title to an undivided one-half of 160 acres of land. The plaintiff had judgment, and the defendants appeal. (2) The land was the community property of Volney Robinson, Sr., and Josephine Robinson; the legal title being in the husband. In 1878 Volney Robinson conveyed an undivided one-half to his wife, Josephine. In 1881, by a deed duly acknowledged as required in a conveyance of the wife's separate estate, Volney and Josephine Robinson conveyed "our undivided interest of one-half" to one Haley. On the same day, and also for the same consideration. Haley conveyed the half interest to Volney Robinson. Josephine Robinson died in 1881. In 1882 Volney Robinson qualified as survivor of the community, and inventoried the 160 acres as community property. In 1883, and again in 1888, Volney Robinson executed deeds of trust on the land. The second deed of trust was foreclosed, and the defendants claim under the purchaser. The plaintiff is the only child of Josephine Robinson, and claims a one-half interest as the separate property of his mother. (3) That part of the deed from Robinson and wife to R. O. Haley material to the consideration of the case reads: "State of Texas, County of Johnson. Know all men by these presents, that we, Volney Robinson and Josephine Robinson, of Tarrant county, and state of Texas, in consideration of $350.00 to us in hand paid by R. O. Haley, have granted, sold, and conveyed, and by these presents do grant, sell, and convey, to the said R. O. Haley, of the county of Johnson, and state of Texas, all that certain tract or parcel of land lying and being in the county of Johnson and state of Texas; the same being our undivided interest, according to quality and improvements, of one-half of the following described property, to wit." Then follows the boundaries of the said 160 acres.

Henry, Brown & Patton and Holloway & Holloway, for appellants. L. B. Davis, for appellee.

BOOKHOUT, J. (after stating the facts).

1. The conveyances from Robinson and wife to Haley, and from Haley back to Robinson, were made on the same day, and describe the same land, and recite the same consideration, which indicates that the consideration therein named was merely nominal and formal. There was no evidence outside of these recitations that any consideration was in fact paid. It is disclosed by the evidence that at the time of making these deeds Mrs. Josephine Robinson owned an undivided one-half interest in the 160 acres of land, and that the title to the other undivided half interest was in the husband, Volney Robinson, who held it for the community. We think it may be conceded that the language of the deed is broad enough to embrace either undivided interest. The question arises, which undivided interest did the parties intend to convey to Haley? Prior to 1878 the title to the entire 160 acres survey was in the husband, who held it for the community. By his deed made in that year to Josephine Robinson, his wife, an undivided one-half interest was conveyed to her. The effect of this conveyance was to make the interest so conveyed the separate property of the wife. The undivided interest not conveyed remained community property....