Vanderwolk v. Matthaei

• Decision Date: 29 April 1914
• Docket Number: (No. 5273.)
• Citation: 167 S.W. 304
• Parties: VANDERWOLK et al. v. MATTHAEI.
• Court: Texas Court of Appeals

167 S.W. 304

VANDERWOLK et al. v. MATTHAEI.

(No. 5273.)

Court of Civil Appeals of Texas. San Antonio.

April 29, 1914.

Rehearing Denied June 10, 1914.

Appeal from District Court, Austin County; Frank S. Roberts, Judge.

Action by Elizabeth Jenke Vanderwolk and others against W. A. Matthaei. Judgment for defendant, and plaintiffs appeal. Affirmed.

J. E. Edmundson, of Bellville, and John T. Duncan, of La Grange, for appellants. Searcy & Botts, of Brenham, and Johnson, Matthaei & Thompson, of Bellville, for appellee.

MOURSUND, J.

Elizabeth Jenke Vanderwolk and Charles J. Jenke, a minor suing by his father, Chas. A. Jenke, as next friend, on April 5, 1913, sued W. A. Matthaei in trespass to try title, seeking to recover two tracts of land in Austin county, one containing 75 acres, the other 33 acres. Defendant answered by general denial, plea of not guilty; then pleaded statutes of limitation of three, five and ten years in bar of plaintiffs' suit; and also pleaded that he had made improvements in good faith, setting out the title upon which he based said claim. Plaintiffs pleaded their minority in reply to the pleas of limitation, denied the allegations of the answer, and attacked the title under which defendant claims, alleging in detail the various defects claimed by them to exist in defendant's title.

Judgment was rendered for defendant, and findings of fact and conclusions of law were filed.

The findings of fact read as follows:

"First. I find that this suit was filed by the plaintiffs against defendant in the district court of Austin county, Tex., on the 5th day of April, 1913.

"Second. I find that A. Louise Jenke was the wife of Chas. A. Jenke and the mother of plaintiffs; that she died intestate in Austin county, Tex., on the 5th day of June, 1895, leaving surviving her her husband, Chas. A. Jenke, and the plaintiffs and another minor child, who died in infancy about one year after the death of the said A. Louise Jenke; that there was no administration on the estate of the said A. Louise Jenke; that the plaintiff Elizabeth Jenke Vanderwolk married ____ Vanderwolk on the ____ day of January, 1909; and that the said ____ Vanderwolk died on the ____ day of August 1909.

"Third. I find that A. Louise Jenke was the daughter of George C. and Caroline Nolte; that they both died before May 13, 1890, and died without leaving a will; that A. Louise Jenke claimed the property by inheritance from her father and mother, George C. and Caroline Nolte; that plaintiffs claim the same by inheritance from their mother, A. Louise Jenke; that plaintiffs alleged in their petition that A. Louise Jenke was the common source of title.

"Fourth. The plaintiffs first introduced a deed from Louise Nolte, the stepmother of A. Louise Jenke, stating that the said deed was made for the purpose of conveying the interest of Louise Nolte in her father and mother's estate, and was for partition. This deed was made with the consent of A. Louise Jenke. This deed vested the legal title to the property conveyed by Louise Nolte, if the said Louise Nolte had any title in said land, in Chas. A. Jenke. This deed was dated April 19, 1890, and was duly recorded on the 21st day of April, 1890.

"Fifth. Plaintiffs next introduced in evidence the mortgage executed by Chas. A. Jenke and his wife, A. Louise Jenke, conveying the land in controversy to Mrs. Clara Matthaei, to secure the payment of two promissory notes of even date with said mortgage due and payable 1 and 2 years after date, respectively, each of said notes being for the sum of $250, and bore interest from date until paid at the rate of 8 per cent. per annum. This mortgage was duly acknowledged and recorded on the 17th day of May, 1890. Plaintiffs next introduced in evidence a deed from Chas. A. Jenke and his wife, A. Louise Jenke, conveying the land in controversy to Theo Dierbach. This deed was dated August 23, 1894, the consideration being that Theodore Dierbach should pay to W. A. Matthaei, who was then the owner thereof, the two Clara Matthaei notes, and for the further consideration of three notes executed by said Theodore Dierbach to Chas. A. Jenke, one for $76.15 and two for $100 each. This deed was recorded on the 25th day of August, 1894. In the acknowledgment of A. Louise Jenke to this deed, the words `that she did not wish to retract it' were left out by the notary taking the acknowledgment.

"Sixth. Plaintiffs next introduced in evidence the petition filed in the district court of Austin county, Tex., on the ____ day of May, 1900, by W. A. Matthaei, as plaintiff, against Chas. A. Jenke and Theodore Dierbach on the two notes executed by Chas. A. Jenke to said Mrs. Clara Matthaei, secured by mortgage above referred to, and which were assumed by Theodere Dierbach. The judgment entered in said suit against Chas. A. Jenke and Theodore Dierbach forecloses said mortgage as against Chas. R. Jenke and Theodore Dierbach on said land. The order of sale issued on said judgment, and the sheriff's deed, conveying said land to W. A. Matthaei. This deed was dated the 9th day of August, 1900, and recorded on the 31st day of August, 1900.

"Seventh. On the 21st day of March, 1890, J. H. Machemehl conveyed to Chas. A. Jenke lot No. 3 of the A. Haak's subdivision to the town of Bellville for $400, secured by vendor's lien note. The money borrowed from Mrs. Clara Matthaei was used for the purpose of paying off this vendor's lien note and erecting a house on said lot for Chas. A. Jenke and wife to live in, the old house having been burned down.

"Eighth. I find that the mortgage notes executed by Chas. A. Jenke to Mrs. Clara Matthaei were renewed by Chas. A. Jenke in 1894 and again in 1897. The deed from Chas. A. Jenke and wife to Theodore Dierbach was recorded on the 25th day of August, 1894. I find that A. Louise Jenke in 1894, by joining in the deed to Theodore Dierbach, ratified and confirmed the renewal of the Matthaei notes made by Chas. A. Jenke."

"Tenth. I find that Chas. A. Jenke sold two (2) of the vendor's lien notes executed to him for the land to Schauerhammer & Roensch of Bellville, Austin county, Tex., and that Theodore Dierbach paid said notes.

"Eleventh. The defendant introduced in evidence for himself each of the instruments above referred to and that had been introduced by the plaintiffs.

"Twelfth. I find that Theodore Dierbach entered into possession of 75 acres of the land sued for in the fall of 1894, fenced the same, and raised a crop thereon for the years 1895 and 1896, and that the said Theodore Dierbach, by himself and agents claiming to be the owner of said land, had and held quiet, peaceable, and continuous adverse possession thereof, using and enjoying the same, and paying all of the taxes due thereon under deed duly recorded from the fall of 1894 to the date that the land was sold to W. A. Matthaei by the sheriff on the 9th day of August, 1900.

"Thirteenth. I find that as soon as the sheriff's deed to said land was executed and delivered to the said W. A. Matthaei, that he, claiming to be the legal owner of said land, went into possession thereof and held quiet, peaceable, continuous, and adverse possession of said land, using and enjoying the same, and paying all taxes due thereon under deeds duly registered from the 9th day of August, 1900, to the filing of this suit.

"Fourteenth. I find that the $500 due Matthaei, and secured by the mortgage, was never paid, and that W. A. Matthaei is in possession of said land.

"Fifteenth. I find that neither the plaintiffs nor the defendant deraign title to the land in controversy from the sovereignty of the soil."

Our conclusions upon the law of the case are:

1. That plaintiffs and defendant claim title from a common source, to wit, Mrs. A. Louise Jenke. The deed from her stepmother, Louise Nolte, to Chas. A. Jenke conveyed no title, and, besides, carries on its face notice that the land is the separate property of Mrs. A. Louise Jenke. There is no merit in the contention that the latter could pass title to her husband by permitting, or acquiescing in, the making of a conveyance to him of her land.

2. The mortgage executed by plaintiffs' mother was for the purpose of securing the payment of her husband's note, and any extension thereof without her consent, which would be binding upon both parties, so that the holder of the note could decline to accept payment until the date to which such note was extended, and Jenke could refuse to pay it until that time, would release her property so mortgaged. Red River Nat'l Bank v. Bray, 105 Tex. 312, 148 S. W. 291. In this case the court found that the notes had been renewed twice by Mr. Jenke, one of which renewals had been ratified by his wife, but fails to find that they were extended, or to state facts from which we can determine whether any extension was made sufficient to release Mrs. Jenke's land. Upon examining the statement of facts, we find that the court's finding that the notes were renewed is correct, as Jenke signed two written renewals sufficient to toll the statute of limitations, but such promises did not create any extensions for any definite time, nor is the evidence sufficient to show that any agreement was ever made which would have prevented Jenke or Mrs. Jenke or her heirs from at any time paying off the notes. Therefore Mrs. Jenke's land was not released from liability under the mortgage.

3. The deed from Jenke and wife to Dierbach bears the following certificate of acknowledgment:

"The State of Texas, County of Austin.

"Before me, J. H. Machemehl, a notary public in and for Austin county, Texas, on this day personally appeared Chas. A. Jenke and Louise Jenke, wife of said Charles A. Jenke, both to me known to be the persons whose names are subscribed to the foregoing instrument, and acknowledged to me that they executed the same for the purposes and consideration therein expressed, and the said Louise Jenke, wife of the said Chas. A. Jenke,...