West v. Keeton

• Decision Date: 30 October 1897
• Citation: 42 S.W. 1034
• Parties: WEST v. KEETON et al.
• Court: Texas Court of Appeals

42 S.W. 1034

WEST v. KEETON et al.

Court of Civil Appeals of Texas.

October 30, 1897.

Appeal from district court, Navarro county; Rufus Hardy, Judge.

Trespass to try title by Crawford J. West against Joseph Keeton and others. Defendants obtained judgment. Plaintiff appeals. Reversed.

Cobb & Avery, for appellant. Frost, Neblett & Blanding and J. H. Bates, for appellees.

FINLEY, C. J.

On reinvestigation of the questions involved in this case, we have become convinced that the conclusions heretofore filed, and the judgment based thereon, are erroneous. The conclusions filed, therefore, will be withdrawn, and the former judgment affirming the judgment of the court below will be vacated, and set aside; and we herein present the views of the court upon the questions necessary to be passed upon.

Plaintiff, Crawford J. West, instituted this suit in Navarro county, Tex., against Joseph Keeton and several other defendants. The action is one of trespass to try title to two tracts of land situated in said county, both tracts alleged to be embraced within the James De Armon 320-acre survey,—one containing 100 acres, and the other 75 acres,—and each described by metes and bounds. The petition also contains appropriate allegations, and a prayer for partition in case it shall be determined that defendants own any interest in said lands. The cause was tried in the court below by the aid of a jury, and verdict and judgment were rendered in favor of the defendants for the entire amount of the land involved in this suit.

The first question arises upon the admission of evidence intended to overcome proof of common source. Plaintiff showed regular chain of title from the government down to J. P. McCain, covering the 320-acre James De Armon survey. Plaintiff next introduced in evidence a deed from J. P. McCain and his wife, Lou J. McCain, to Malinda J. Hardeman, conveying to her the 320-acre James De Armon survey, describing it by metes and bounds, as in the patent. This deed was dated November 22, 1869, and recites the consideration of $379 paid, and is in the usual form of a warranty deed conveying the land to Malinda J. Hardeman, her heirs and assigns, in terms of an absolute fee-simple conveyance. Plaintiff then introduced in evidence the will of Malinda J. Hardeman, which was shown to have been duly probated, which specifically devised an undivided interest of 220 acres in the 320-acre James De Armon survey to Crawford J. West; and under the terms of this will the balance of this 320-acre tract, namely, 100 acres, was devised, under general provisions of the will, to W. J. Newbolt, John G. West, Lou Willie West, and Crawford J. West in equal undivided portions. Plaintiff further showed that John G. West and Lou Willie West conveyed to him all the interest they owned in said 320-acre survey on June 28, 1895. Plaintiff then showed that the defendants claimed under the devisees named in said will, and that the defendants' title was deraigned through said will of Malinda J. Hardeman, the defendants claiming the interest held by said devisees, and derived through the will of Mrs. Hardeman. In other words, plaintiff's proof showed that both plaintiff and defendants claimed through and under the will of Mrs. Malinda J. Hardeman, and claimed the interests therein devised. To overcome the force of this proof of common source of title, appellees were permitted to prove that Malinda J. Hardeman was a married woman at the time the 320-acre James De Armon survey was conveyed to her by J. P. McCain; that her husband survived her about 10 years, and died, leaving children; and that the records failed to show that he or his heirs had ever conveyed any interest in said land. There was no effort to connect the claim of appellees with the supposed title of Malinda J. Hardeman's husband to a community interest of one-half of the land. As before stated, the deed to Malinda J. Hardeman recited a cash consideration; and it was such a deed as would ordinarily, upon proof of the marriage state, give rise to the presumption that the property belonged to the community estate of the husband and wife. This evidence would not be sufficient to overcome the proof of common source, regardless of the question of its legal competency. The presumption that the common source acquired the title will prevail until it is shown that there is a superior title to that held by the common source, and that defendants have acquired such superior title, or that it never vested in the common source. Rice v. Railway Co., 87 Tex. 93, 26 S. W. 1047. Neither of these essentials was shown by the evidence in question. The title papers not showing title in any other person inconsistent with the title of plaintiff, to show the extraneous fact that Malinda J. Hardeman was a married woman at the time the land was conveyed to her by an apparent onerous title would only be proof of a presumption that the property was community, and proof of such presumption would not be sufficient to destroy the force of the proof of common source. Notwithstanding she was married at the time this deed was made to her, and notwithstanding the deed may have failed to recite that it was intended to be her separate estate, still such a state of facts would only give rise to the presumption that the property was community property, and this presumption could be overthrown by proof that the property was purchased with her separate means, or intended for her separate benefit; except in so far as the proposition may be affected by our registration laws. To hold otherwise would be to recognize the right to meet and overcome a presumption arising out of a rule of evidence by showing a state of facts by which a contrary presumption would ordinarily arise.

But the evidence was not only insufficient in probative effect, but it was also legally incompetent, and should have been excluded upon objection urged against it. The deed from McCain to Mrs. Malinda J. Hardeman, as above stated, in so far as the terms of the conveyance be concerned, vests an absolute title in the vendee. When a deed is made to the wife, and purports to convey to her an absolute fee-simple title to the land, it is held that the apparent or technical legal title to all the land conveyed is in the wife, while the equitable title to one-half is in the husband. Patty v. Middleton, 82 Tex. 586, 17 S. W. 909; Edwards v. Brown, 68 Tex. 329, 4 S. W. 380, and 5 S. W. 87; Hill v. Moore, 62 Tex. 610; Stiles v. Japhet, 84 Tex. 96, 97, 19 S. W. 450. It is also well established that an outstanding equity in land sued for cannot be shown as a defense unless defendant connects his title with such equity. Ballard v. Carmichael...