Swearingen v. Reed
| Decision Date | 16 February 1893 |
| Citation | 21 S.W. 383 |
| Parties | SWEARINGEN v. REED et al. |
| Court | Texas Court of Appeals |
Appeal from district court, Childress county; G. A. Brown, Judge.
Trespass to try title by F. A. Reed, joined by her husband, J. A. Reed, against M. S. Swearingen. Judgment for plaintiffs. Defendant appeals. Affirmed.
A. J. Fires and S. Johnson, for appellant. McCall & Britt and Jackson & Jackson, for appellees.
Findings of Fact.
This is an appeal prosecuted by M. S. Swearingen from a judgment rendered by the district court of Childress county in behalf of Fannie A. Reed, the wife of James A. Reed. This lady, joined by her husband, brought this suit, in the nature of an action of trespass to try title, to recover from appellant, M. S. Swearingen, in her separate interest, 10 acres of land out of the south half of section 576, block H., in Childress county, Tex. This section was located by virtue of certificate No. 2,288, granted to the Waco & Northwestern Railway Company. In 1886 the state land board, under the act of 1883, and on the application of J. A. Reed, sold and awarded to him the south half of the section described, which was school land. January 13, 1888, James A. Reed, for the recited consideration of $450, executed a deed with clause of general warranty to his wife, Fannie A. Reed. This deed contains no recital that the conveyance is intended for the separate use and benefit of the wife. It purports to be executed in Childress county, Tex. The land conveyed is described therein "as the south half of section No. 576, block H, W. & N. W. Ry. Co. survey, certificate No. 1,286." The state or county in which the land is situated is not recited. The deed, properly acknowledged, was recorded in Childress county, January 13, 1888. It is alleged in the petition that the proper number of the certificate referred to in the deed is 2,288, and that the number recited in the deed as 1,286 was inserted by mistake. James A. Reed, the grantor, testified that the deed should have recited the certificate number as 2,288 instead of 1,286; that the former is the true certificate number of section 576. On this conveyance rests the claim of the appellee Fannie A. Reed. August 6, 1890, James A. Reed filed an instrument designating 200 acres of the south half of section 576 as the homestead of himself and family. On the same day he executed to J. W. Swearingen a deed conveying 10 acres out of the south half of the survey named; the 10 acres, however not being included in the homestead designation. August 11, 1890, J. W. Swearingen conveyed the 10 acres named to M. S. Swearingen, the appellant herein. The appellant and appellee Fannie A. Reed claim under James A. Reed as a common source of title.
Conclusions of Law.
The two assignments of error inserted in appellant's brief contain, in effect, the same complaint, viz. that the court erred in concluding, as a matter of law, that by the deed from James A. Reed to his wife, Fannie A. Reed, the former was divested of all title to the entire south half (including the 10 acres in controversy) of section 576, block H. Waco & Northwestern Railway Company survey, located by virtue of certificate 2,288, in Childress county.
1. As the appellant deraigns his title from James A. Reed as the common source, we find no merit in his several propositions asserting the existence of an outstanding title in the state because of the fact alleged by him, though not found by us to exist, that Reed failed to comply with the statute of 1883 providing for the sale of school land. The appellant will not be permitted to impugn the title of Reed, under which he claims, but is held to admit its validity. Glover v. Thomas, 75 Tex. 506, 12 S. W. Rep. 684.
2. The deed from James A. Reed to his wife indicates on its face, we think, an intention by him to vest in her as her separate property the land therein described. In a transaction between husband and wife it is not necessary that the deed, in order to have the effect referred to, should contain a recital that the conveyance is intended for the...
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...out of the community funds, or from his own as to that, and such conveyances will be upheld as a valid gift" — citing Swearingen v. Reed, 2 Tex. Civ. App. 364, 21 S. W. 383. As we understand the authorities, the express reservation of the vendor's lien in Olcott, as to Mrs. Davis, the assig......
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