Unsell v. Federal Land Bank of Houston, 5456.

• Decision Date: 07 March 1940
• Docket Number: No. 5456.,5456.
• Parties: UNSELL v. FEDERAL LAND BANK OF HOUSTON et al.
• Court: Texas Court of Appeals

138 S.W.2d 305

UNSELL v. FEDERAL LAND BANK OF HOUSTON et al.

No. 5456.

Court of Civil Appeals of Texas. Texarkana.

March 7, 1940.

Rehearing Denied March 21, 1940.

Appeal from District Court, Delta County; Newman Phillips, Judge.

Action by S. C. Unsell against the Federal Land Bank of Houston and others in trespass to try title and for accounting. From a judgment for defendants, plaintiff appeals.

Reversed and rendered in part, and remanded in part.

Hutchison & Fisher, of Paris, for appellant.

Carl Runge and H. A. Berry, both of Houston, and R. H. Good, of Cooper, for appellees.

JOHNSON, Chief Justice.

S. C. Unsell, Sr., of Delta County, Texas, died March 29, 1911, seized and possessed of real and personal property of the value of $35,000, same being community property between himself and his second wife, Florence Unsell. He owed debts not in excess of $50. No administration was had upon his estate. He was survived by his said wife, Florence Unsell, and by two children, H. D. Unsell who was a child by his first marriage, and S. C. Unsell, Jr., who was a child by his second marriage. Said Florence Unsell, H. D. Unsell, and S. C. Unsell, Jr., were the sole surviving heirs of S. C. Unsell, Jr., deceased. Prior to his death S. C. Unsell, Sr., executed the following writing:

                "State of Texas    |  Know All Men by
                                    &gt
                "County of Delta   |  These Presents
                

"That I, S. C. Unsell of the County of Delta and State of aforesaid, for and in consideration of the sum of Ten Dollars to me in hand paid by Florence M. Unsell as follows: Cash—and a further consideration for love and affection I have for my wife—and to arrange my business as I want it prior to my death—have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Florence M. Unsell of the County of Delta and State of Texas, all that certain tracts or parcels of land in Delta and other counties in Texas and other states—in which I may own property at my death—all my lands and town lots as per deeds on record in said Counties, originals now in my possession—Also all my notes, accounts, money, Bank-Stock and all other things of value at my death that I may have—

"Except from this that my son H. D. Unsell have, if living at my death, and if not living, his legal and lawful child or children (only not his wife) to have the following, Real Estate to the value of $2060.00 it being the entire value of our property at his Mother's death as per Inventory of record in Probate Minutes of Delta Co. Texas—Book G—Pgs 211&212. Said real Estate to be selected from the land I may own at my death—Excluding from this our 2 acre homestead we now live on—by three of the following men—to be selected by one by my wife & one by my Son—& the 3rd to be selected by these two if not agreed on by said wife & son. In case either the said wife or son be dead—leaving a minor or minors then & in that event the County Judge of Delta County may act in her or his stead & if both dead he select the 3 men from the following: Chas Naylor, G. B. Simmons, S. J. Smith, Tom Gardner, C. C. Dunnegan, L. E. Stell, Arthur Darwin, Ed Hendrix, A. T. Stell and Sam Morgan—

"When said Real Estate is selected by said 3 parties the deed is to be made by F. M. Unsell to be in force and effect and absolute only when he is 25 years old— And should he mortgage or sell the same or a part of same prior to the time he is 25 years old then, I herein retain a vendor's lien on the entire amount so deeded for my half interest in said inventory for $1030 payable when said sale or mortgage is executed or made—the said F. M. Unsell her heirs or assigns—bearing 10% interest from said date & attorney fees if placed for collection. The said 3 persons will also select from my stock after F. M. Unsell has 1st & 2nd choice two horses or mules—and 2 cattle—and to be subject to a lien herein retained as on said real estate if sale is made or mortgage is executed to any one except F. M. Unsell, but granting power to sell any or all of said real estate or personal property to her and to her only—This deed held by me & subject to any change I may see fit to make prior to my death—reserving the right to do as I like with the property so long as I live then this to be in full force.

"To have and to hold, the above described premises, together with all and singular, the rights and appurtenances thereto in anywise belonging, unto the said F. M. Unsell her heirs and assigns, forever. And I do hereby bind myself & my executors and administrators to Warrant and Forever Defend, all and singular, the said premises unto the said F. M. Unsell her heirs and assigns, against every person whomsoever lawfully claiming or to claim the same, or any part thereof.

"But it is expressly agreed and stipulated that the Vendor's lien is retained against the above described property, premises and improvements that may be selected & all stock until the above described liens & requirements are met and all interest thereon, are fully paid and complied with according to the face and tenor hereof effect and reading, when the deed shall become absolute.

"Witness my hand at Cooper, Texas, this 21 day of July, A. D. 1910.

                       "S. C. Unsell for myself and as
                              Survivor of Estate of Mattie
                              Unsell, Decd."
                

The instrument was witnessed by three witnesses and was acknowledged by S. C. Unsell, Sr., before the County Clerk of Delta County, in the manner and form prescribed by law authorizing deeds and other instruments to be recorded in the office of the County Clerk. The instrument was never delivered or recorded by S. C. Unsell, Sr. He retained exclusive possession and control of the instrument during his lifetime. After his death it was found among his papers in his private safety deposit box in the First National Bank of Cooper, Texas, by his widow, Mrs. Florence Unsell, who had no previous knowledge of its execution. Mrs. Florence Unsell took possession of the instrument and on March 31, 1911, filed it for record and it was on the same day recorded in Deed Records of Delta County, the county in which the land here involved was located. The instrument was never probated nor offered for probate. Mrs. Florence Unsell immediately took possession of all the community property of herself and her deceased husband, both real and personal. April 1, 1911, she purchased for valuable consideration the undivided interest of H. D. Unsell in said estate. Of the remainder she sold and converted the personal property to her own use and benefit, and likewise disposed of all the land, except 140.44 acres, of the value of $2,500.

Florence Unsell married M. J. Thomas, the date of which marriage is not shown. After her marriage to M. J. Thomas and after conversion of that portion above mentioned of the community property of herself and deceased husband, S. C. Unsell, Sr., said Florence Unsell Thomas and husband, M. J. Thomas, on August 11, 1922, borrowed $6,800 from the Federal Land Bank of Houston, for which they executed to said bank their note payable in semiannual installments, the last of which is due June 1, 1957. To secure the payment of said indebtedness Florence Unsell Thomas, joined by her husband, M. J. Thomas, executed to said bank a deed of trust covering said 140.44 acres of land, and also covering 118.8 acres of land belonging to the separate estate of Florence Unsell Thomas. The note and deed of trust were dated and delivered August 11, 1922. The bank accepted the note and deed of trust and disbursed the $6,800 in good faith and without notice that Florence Unsell Thomas was not the absolute owner of all said land, except if and as impaired by the fact that said bank had actual notice of the existence and contents of the above-mentioned instrument executed by S. C. Unsell, Sr., and as may be affected by the fact that said instrument was never delivered, and by the fact that the bank failed to make any inquiry as to the existence or non-existence of children of said S. C. Unsell, Sr., deceased. Mrs. Florence Unsell Thomas has continuously since the date of her entry, March 31, 1911, held peaceable and adverse possession of the 140.44 acres in controversy, cultivating, using and enjoying the same, and claiming the title thereto under the above-mentioned instrument for a period of more than twenty-five years. Her claim has been in good faith, except if and as impaired, as a matter of law, by her own acts in knowingly procuring the undelivered instrument, placing it of record and claiming to have acquired title under it.

S. C. Unsell, Jr., became twenty-one years of age October...