Sullivan v. Barnett

Decision Date23 June 1971
Docket NumberNo. B--2431,B--2431
Citation471 S.W.2d 39
PartiesO. H. SULLIVAN et ux., Petitioners, v. Pearl BARNETT et al., Respondents.
CourtTexas Supreme Court

A. R. Archer, Jr., Monahans, for petitioners.

J. M. Preston, Pecos, for respondents.

DANIEL, Justice.

Plaintiffs, O. H. Sullivan and wife, instituted this suit on August 14, 1968, to reform a deed dated January 25, 1956, a deed of trust dated January 15, 1959, and a 1962 trustee's deed thereunder, in so far as these instruments relate to 240 acres in Ward County alleged to have been included in such instruments by mutual mistake; for cancellation of a separate deed to one-fourth of the minerals on 40 acres alleged to have been obtained by fraud; and for removal of clouds cast upon plaintiffs' title. Plaintiffs alleged that, in any event, the 1956 deed and 1959 deed of trust were void as to 200 acres of the land because it was their homestead and Mrs. Sullivan did not appear before a notary public and separately acknowledge the 1956 deed, and because the 1959 deed of trust was not given to secure any type of debt for which a valid lien could be placed on a homestead.

The 1956 deed to J. S. Witt and D. F. Ross covered one-half interest in 26 numbered 'water tracts' subdivided and platted by the Pioneer Canal Company. The 1959 deed of trust in favor of W. M. Barnett, signed by Witt, Ross, and the Sullivans, covered these and 25 other similar 'water tracts' or lots. The area comprised of this total of 51 'water tracts,' generally referred to in oral testimony as the 'Cox Place', was located about three-quarters of a mile distant from six other forty-acre 'water tracts,' generally referred to in oral testimony as the 'Sullivan homestead.' The latter six tract numbers were included in the instruments by mutual mistake, and they comprise the area in controversy. All descriptions were by subdivision tract and block numbers only, with no metes and bounds and no reference to the general descriptions used in the oral testimony.

It was alleged that the six homestead tracts were inadvertently included in the 1956 deed as the result of a scrivener's error and that this mistake was repeated in subsequent deeds of trust, including the 1959 deed of trust and the trustee's deed to W. M. Barnett. This mutual mistake was conclusively established by testimony or evidence of statements and actions of all of the above named parties to the instruments. J. S. Witt and the widow of D. F. Ross were included as defendants, but they made no contest. Witt testified in favor of plaintiffs. The only contesting defendants were the widow and niece of W. M. Barnett, deceased.

Based upon jury findings favorable to the plaintiffs on seven special issues and undisputed evidence on other issues, the trial court rendered judgment reforming the instruments in so far as they pertain to the entire 240 acres and removing the clouds cast upon plaintiffs' title by these instruments and by a gift deed from W. M. Barnett to his niece, Mrs. Anita V. Head, covering one-fourth of the minerals on the 240 acres. It also cancelled the separate deed from plaintiffs to Barnett covering one-fourth of the minerals on 40 acres of the land in controversy. An appeal was taken by the widow and niece of Barnett, respondents, who are hereinafter referred to as defendants.

The Court of Civil Appeals did not pass upon the substantive issues, concluding that the plaintiffs could not recover on the homestead claim because they failed to ask for and obtain a jury finding that the land constituted their homestead on the relevant dates; that they were barred by the four-year statute of limitations from having the mutual mistakes corrected and the clouds removed from their title; and that the findings of the jury do not support the cancellation of the separate mineral deed to one-fourth of the minerals on the 40 acre tract. Tex.Civ.App., 458 S.W.2d 850. We disagree with the holdings and the judgment of the Court of Civil Appeals and approve the judgment of the trial court in so far as they relate to all of the property and instruments except the separate deed to one-fourth of the minerals on 40 acres out of water tracts 3 and 4 in Section 201, Block 34. As to the latter, we agree with the Court of Civil Appeals that plaintiffs were not entitled to cancellation of this mineral deed and hold that the trial court's judgment should be modified accordingly. In order that the trial court may enter a judgment modified in accordance with this opinion, we reverse the judgments below and remand the case to the trial court.

The Homestead 200 Acres

Because of the controlling effect which we give to plaintiffs' continued occupancy and use of the land, both on the homestead and mutual mistake issues, we shall discuss this phase of the case first. After purchasing the six forty-acre 'water tracts' in controversy (less one-half of the minerals) from Judge Henry Russell in 1951, plaintiff, O. H. Sullivan, included them in a homestead designation which he filed in the Deed Records of Ward County, on November 30, 1954. 1 It is undisputed that since that time plaintiffs have lived in the home situated on this land, maintained and claimed it as their homestead, kept the entire area under fence, raised livestock thereon, farmed portions themselves, and leased other portions to be farmed by tenants. This was established not only by their own testimony but by disinterested witnesses. This actual use as a homestead in 1956 and thereafter, and the fact that these six 'water tracts' were not intended to be included in the 1956 deed and the 1959 deed of trust, were known to all of the grantees in the instruments, including W. M. Barnett, who purchased under the trustee's sale in 1962.

Defendant's only challenge to this homestead status is by way of argument, first made on motion for instructed verdict, that plaintiffs had abandoned their homestead claim by an attempted sale of the property to W. C. Scott on February 5, 1955. It is true that plaintiffs executed a deed to Scott covering the homestead tracts and other lands in 1955. However, Scott was unable to make the first payment due December 20, 1955, and he reconveyed the land to plaintiffs on January 25, 1956. In the meantime, plaintiffs had continued to live on the land and use it as their homestead. There was no abandonment in law or in fact. They never agreed or intended to move unless and until Scott made the first payment. It has been held that the rural homestead rights protected by Article 16, Section 50 of the Constitution of Texas, Vernon's Ann.St., may attach to property held under lease or at the will of the record owners. Davis v. Lund, 41 S.W.2d 57, (Tex.Com.App.1931, holding approved); Young v. Hollingsworth, 16 S.W.2d 844, (Tex.Civ.App., 1929, writ ref.); Beckner v. Barrett, 81 S.W.2d 719 (Tex.Civ.App., 1935, writ dism.); Birdwell v. Burleson, 31 Tex.Civ.App. 31, 72 S.W. 446 (1902, writ ref.). An intention or attempt to sell a homestead does not amount to an abandonment as long as the homestead claimants retain possession and have no intent to abandon unless the sale materializes. McDaniell v. Ragsdale, 71 Tex. 23, 8 S.W. 625 (1888); Gaar, Scott & Co. v. Burge, 49 Tex.Civ.App. 599, 110 S.W. 181 (1908, writ ref.); American National Bank of Austin v. Cruger, 31 Tex.Civ.App. 17, 71 S.W. 784 (1902, writ ref.).

When homestead rights are once shown to exist in property, they are presumed to continue, and anyone asserting an abandonment has the burden of proving it by competent evidence. Rancho Oil Co. v. Powell, 142 Tex. 63, 175 S.W.2d 960 (1943); Burkhardt v. Lieberman, 138 Tex. 409, 159 S.W.2d 847 (1942); Moorhouse v. Crew, 273 S.W.2d 654 (Tex.Civ.App., 1954, writ ref.). The party claiming abandonment must plead it and carry the burden of proving it. Postal Savings & Loan Ass'n v. Powell, 47 S.W.2d 343 (Tex.Civ.App., 1931, writ ref.); Huss v. Wells, 17 Tex.Civ.App. 195, 44 S.W. 33 (1897, writ ref.). Defendants here failed to plead abandonment and did not ask for the submission of any issue on that question.

Plaintiffs not only possessed and claimed the land as their homestead but had record title thereto on January 25, 1956, when their deed was made to J. S. Witt and D. F. Ross covering one-half interest in all or portions of 26 numbered water tracts, in which the scrivener also inadvertently included the six tract numbers in controversy. One of the grantees, J. S. Witt testified that he and his deceased partner, D. F. Ross, did not intend to buy the six 'homestead' tracts; that they did not pay for them; that they were included in the deed by mutual mistake; that neither he nor Ross ever claimed the plaintiffs' homestead tracts; and that they always recognized them as belonging to and constituting the homestead of the plaintiffs. He also testified that W. M. Barnett, their subsequent grantee and beneficiary under subsequent deeds of trust, including the 1959 deed of trust, knew that these homestead lots were not intended to have been included in any of the series of instruments which began with the 1956 deed, because Barnett loaned Witt and Ross the money to buy the interest in the 26 tracts from plaintiffs and personally inspected the land which was being purchased and immediately pledged to Barnett; that such inspection did not include the six tract numbers which comprise the 240 acres in controversy. Witt also testified that Mrs. Sullivan did not appear before the notary who purportedly took her acknowledgment to this deed; that the acknowledgment was filled out in advance and that he, Witt, subsequently took the deed to Mrs. Sullivan and obtained her signature. The jury found in answer to Special Issue No. 7 that Mrs. Sullivan did not appear before the notary.

Article 16, Section 50, of the Constitution of Texas and the statutes in effect on the dates of the instruments in controversy (Articles 1300, 4618, 6605 and 6608, Vernon's...

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