Weatherred v. Kiker, 7145

• Decision Date: 16 April 1962
• Docket Number: No. 7145,7145
• Citation: 357 S.W.2d 182
• Parties: Ovna WEATHERRED et al., Appellants. v. George D. KIKER et al., Appellees.
• Court: Texas Court of Appeals

Page 182

357 S.W.2d 182

Ovna WEATHERRED et al., Appellants. v. George D. KIKER et al., Appellees.

No. 7145.

Court of Civil Appeals of Texas, amarillo.

April 16, 1962.

Rehearing Denied May 14, 1962.

Ed Hoover, Jr., Canadian, for appellants.

Crow & Crow, Wm. J. Jackson, Canadian, for appellees.

CHAPMAN, Justice.

This is an appeal by Ovna Weatherred, surviving wife of Marcus B. Weatherred and the children of that union, all daughters, joined pro-forma by their husbands, from an instructed verdict in a trespass to try title case styled Ovna Weatherred et al. v. George D. Kiker et al. Mr. Weatherred in the record is variously referred to as M. B. Weatherred, Marcus B. Weatherred, Marcus Bate Weatherred, and Marcus Bates Weatherred.

These same parties were before us in Kiker, Administrator of the Estate of F. B. McComb v. Perkins et al., Tex.Civ.App., 338 S.W.2d 538. In that case we sustained the trial court's injunctive relief granted appellees there, the Weatherred family, to preserve the status quo until a final determination of the title to the land involved could be adjudicated. Appellee Kiker, appellant in the previous hearing before us, was in that case seeking to sell the interest calimed by the Weatherred family to satisfy claims against the estate of F. B. McComb, the record owner at that time of all the surface and one-half the minerals of the quarter section of land in the controversy. In that proceeding by sworn pleadings Ruth Weatherred Perkins was alleged to be administratrix of the Marcus B. Weatherred estate. It now develops by the pladings in this case that 'the said Marcus B. Weatherred died on April 4, 1954 without leaving a will and no administration was had on his estate nor was there a necessity for same.'

In this case it was alleged that Ovna Weatherred owned a community one-half interest in the land and that her children inherited their father's one-half interest upon his death intestate. The Original Petition was verified and alleged that F. B. McComb, in whom the superior record title was vested, had no heirs of his estate and was divorced at the time he entered the State Hospital at Abilene. Then by an instrument called the Plaintiffs' Amended Petition Ovna Weatherred alleged that F. C. McComb 'was at such time married at the time of his admission to State Houspital.' He died intestate in the hospital in March, 1949, approximately 18 years after he was admitted.

The instant case was prosecuted by appellants on the theory that Marcus B. Weatherred, until his death, owned the property under a quit-claim deed from Weta McKinny and her husband to M. B. Weatherred dated September 27, 1933, and that he in his life time and appellants here established title under the 3, 5, 10, and 25 years Statutes of Limitations. In the pleadings Ruth Weatherred Perkins claimed the property only as an heir of her deceased father. In order to further their proof to that end Ruth Weatherred Perkins at the beginning of the trial attempted to disclaim 'all interest inteh subject matter that she may have had, as heir and in any and all other capacities, and any interests whatsoever, that she may have owned or claimed in the subject matter of this suit,' in order to circumvent the Dead Man's Statute with her testimony. After her testimony, in which she attempted to show limitation title made by her deceased father and his heirs since his death, and after 125 pages of testimony, including that of her mother to the same effect, counsel for appellees introduced a deed executed April 12, 1934 filed of record in Hemphill County, April 14, 1934 showing M. B. Weatherred and wife, Ovna Weatherred for and in consideration of $2400.00 cash, receipt of which was acknowledged, conveyed the property by warranty deed to Ruth Weatherred.

Thus, appellants are in the anomalous position of attempting to show title by limitations made by Marcus B. Weatherred under the 3, 5, 10, and 25 years Statutes of Limitations in the face of a warranty deed by him and his wife for valuable consideration conveying the property to his daughter before he had held under any title or color of title even as long as one year. This would immediately eliminate any semblance of limitation title through Mrcus B. Weatherred under the 3, 5, and 25 years Statutes of Limitations, all requiring possession to be under a deed or deeds or under an instrument or instruments. Articles 5507, 5508, 5509, and 5519. Nor is there a showing of the necessary conditions required in Article 5519a to prove title by limitation.

There is a claim asserted in the case under a purported lost deed from H. B. McComb to Marcus B. Weatherred but the only testimony concerning such purported deed is that it was made in 1930. There is no evidence of probative force showing it to be on this particular property [the evidence only showing it to be a deed from H. B. McComb] but even if it had been proved and would have proved title to the property in Marcus B. Weatherred it was conveyed away by him in 1934 to his daughter, Ruth Weatherred. Counsel argues by brief that she never accepted the deed but in the Statement of Facts he said: 'She had forgotten about the deed * * *' There is no probative evidence in the case that she did not accept the deed. In fact, after it was introduced she never testified any more.

The next question with which we are faced is whether Ruth Weatherred Perkins had the legal authority to disclaim any interest she may have had in the property without being joined by her husband, with whom she was living, in the absence of being qualified under Article 4614, Vernon's Tex.Civ.St. or some other statute operating as an exception to Article 1299, V.T.C.S. The last cited article requires that a wife must be joined by her husband in a conveyance of her real property. Though the disclaimer was not a conveyance it had the effect if legal of divesting her of any...