Webb v. Mitchell
| Decision Date | 11 July 1963 |
| Docket Number | No. 14108,14108 |
| Citation | 371 S.W.2d 754 |
| Parties | Leland O. WEBB et ux., Appellants, v. Irene MITCHELL et al., Appellees. |
| Court | Texas Court of Appeals |
Wilson M. Rutherford, El Campo, for appellants.
Willis & Willis, George P. Willis, El Campo, for appellees.
This is a suit for partition of real estate. The trial court found that appellees, Irene Mitchell, Leola Storey, Anna Belle Odell, and Clyde Webb, owned a 4/7ths interest in the property and ordered it partitioned by commissioners. The appellants, Leland O. Webb and Cora Spree Webb, who contend that they have record title to 6/7ths of the property and title by limitation to the entire property, have perfected their appeal.
Appellants' Points I through V, compaining of alleged procedural errors of the trial court, were expressly waived in oral argument and will not be discussed further.
Sam Bishkin et al. conveyed the property in dispute to Leland O. Webb, M. A. Webb, Mrs. Leola Storey, Henley Webb, Clyde Webb, Mrs. Irene Mitchell and Mrs. Anna Belle Walker (now Anna Belle Odell) by general warranty deed dated November 12, 1946. During the year 1948 a general warranty deed conveying the property to Leland O. Webb and his wife, Cora Spree Webb, was executed by all of the other grantees in the Bishkin deed except Mrs. Irene Mitchell. She signed the deed, but since her husband declined to sign it Mrs. Mitchell did not acknowledge the deed. Mrs. Mitchell testified that she retained possession of the deed for several years when she gave it to Leland O. Webb at his request. Leland O. Webb testified that the deed was given to him after Mr. Mitchell refused to sign it and that he kept it in his possession and finally recorded it in 1953. The deed was acknowledged by M. A. Webb on January 9, 1948, in Brewster County; by Mrs. Walker on January 12, 1948, in Midland County; by Mr. and Mrs. Storey on January 17, 1948, in Bexar County; by Clyde Webb on January 22, 1948, in Sedgwick County, Kansas; by Henley Webb on February 17, 1948, in Harris County; and Mrs. Mitchell signed the deed in El Campo, Texas, on March 2, 1948.
Mrs. Mitchell testified as follows:
'Q Will you tell the Court Mrs. Mitchell, what the agreement was amoung your brothers and sisters that caused the preparation of this deed?
'A Actually, I didn't know anything about the instrument until it was brought to us to be signed and we were told at that time that it was--if all of the heirs and children did sign the instrument that it was to be delivered to my brother, Leland and that he was to in consideration of being given that instrument, he was to see that the taxes were paid and the place was taken care of and who my father, who was living in his own old home at that time to be care--for.
'Q In other words, the children wanted your father to be cared for?
'A Yes, sir.
'Q And was that one of the reasons that they signed the deed?
'Q (Continuing questions by Mr. Willis:) Was the matter discussed rather frequently among the children--other children, other than Leland?
'A Yes, sir, it was.
'Q And the agreement that it would be signed under those conditions, is that correct?
'A Yes.
'Q That it would be delivered only if everyone signed it?
'A That's right.
'Q And that the property was to be used by Leland, he was to pay the taxes and to used by him to care for your father?
'A Yes, sir.
'Q After your husband refused to sign it, Mrs. Mitchell, did you keep the deed in your possession for several years?
'A Yes, sir, I did have it at my home, it was just left there until, I think around 1953.
'Q And then what happened to the deed?
'A Leland called and wanted to know if he could pick the paper up and I said, 'yes', 'yes, If I could find it,' It was still there, he could have it and he came by the house then and I gave it to him.
'Q Did you ever have any legal advise given you Mrs. Mitchell to the effect that a married woman--signature, without the joinder of her husband as annullity?
'A Yes, sir, I have.
'Q Did you feel that when you delivered the deed to Leland, that you were delivering him a worthless paper?
'A Yes, I did, I didn't have no idea that anything could be done with it.
'Q Did you have the authority of these other grantors to--in writing or orally or any other way, did you have their authority to deliver this deed to Leland without the signature of everyone, to make it legal?
'A No, I didn't.
'Q And you delivered it to him, because you felt that it had no legal effect, is that right?
'A That's right.'
Clyde Webb testified that it was his understanding that one of the children should be given title to the property to handle it. The property was not to be sold as long as their father wanted to live there and upon a sale being made, the proceeds were to be divided equally among the seven children. At one point he testified that the deed was to be delivered only if all named grantors signed it. Later he said that he never thought of what would happen if everyone did not sign it. He also testified he told Mrs. Mitchell that it was all right to deliver the deed, but the evidence indicates that this statement was made before the deed was signed by anyone, and he later testified that he didn't remember telling her to deliver the deed and he didn't believe there was any agreement on it. He testified that he had never talked to Leland Webb about the delivery of the deed and that he did not have any agreement with him concerning the return of the property; that he just trusted in Leland's good faith. He testified that when he signed the deed he intended that title to the property would 'rest' in Leland Webb until it was sold and divided.
Mrs. Odell testified that it was her understanding of the agreement among the parties that 'it would have been of no use and not to be delivered unless we all signed it.' She testified that it was the understanding of all the children that 'Leland had offered to pay the back taxes on the place and fix it up or improve it or sell it or whatever all the children agreed to do.' She also testified that their father was to have a home as long as he lived and that in the event the property was sold the proceeds were to be divided equally. She testified that she did not authorize Mrs. Mitchell to deliver the deed.
Mrs. Storey testified that all of the children were to agree on what was to be done; that Leland was to take care of their father and the place; and that the deed was to be 'turned over to Leland only on the condition that all the parties sign it.' She later testified that it was to be delivered only if all the parties signed the deed and acknowledged it; that she did not deliver the deed to Leland or authorize Mrs. Mitchell to do so.
Leland Webb testified that he did not request anyone to give him the deed and that he did not know about the deed until it was signed and Irene gave it to him, and that he had no agreement or understanding that the property would be reconveyed or accounted for to any of his brothers and sisters.
In answer to the question: 'Have you told other people in the community that the property belongs to you?' he stated: 'No, sir, just a few words, I told them that I was paying taxes on them.' Referring to 1948, 1950, or 1953, he testified in answer to the question: 'You weren't at that time trying to exclude your brothers and sisters from their share of the homestead property, were you?' as follows: 'I thought if they would pay up their part, I would go along, but they never did.' He also testified that in 1954 he did not intend to exclude them from participating in ownership of the property 'if they had put up their part and kept it up, and they didn't.' He admitted that he remembered something about counsel for appellees asking for a list of his expenses in 1959, which he agreed to furnish, so that the total could be divided by seven and each of the appellees could repay him the share due.
Henley Webb and M. A. Webb were impleaded as defendants by appellees. An answer was filed by Henley Webb in which he alleged that the deed by which the property in question was conveyed to Leland O. Webb was a good and sufficient general warranty deed and was properly delivered. He alleged that by the execution and delivery of the deed it was the intention of the grantors that a complete gift of the property be made to the grantees.
It appears that M. A. Webb executed a confirmation deed to Leland O. Webb of his interest, if any, in the property and he filed no answer. While his deposition was taken and appears in the transcript, it is not included in the statement of facts and does not appear to have been introduced into evidence.
The trial was to the court without a jury and no findings of fact or conclusions of law were requested or filed by the trial court with the exception of certain recitations found in the judgment. The judgment recited that the trial court finds that appellees and appellants jointly own the property in question and that Irene Mitchell, Leola Storey, Anna Belle Odell, and Clyde Webb own an undivided 4/7ths interest in the property and that appellants, Leland O. Webb and Cora Spree Webb own the remaining 3/7ths interest. This finding of the trial court is supported by the evidence showing that appellees did not intend that the deed to Leland O. Webb and Cora Spree Webb be delivered until all the other joint owners properly executed the deed. Mrs. Irene Mitchell, as previously stated, has never conveyed her interest. We imply in support of the trial court's judgment that the appellees did not intend that the deed should become operative as a conveyance of the title until it was signed and acknowledged by Mrs. Irene Mitchell and her husband, and that delivery of the deed, in the absence of the...
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