Mary Gein BURNS et al., Petitioners, v. R. C. GOODRICH et al., Respondents, 392 S.W.2d 689

STEAKLEY, Justice. Respondents, R. C. Goodrich et al., sued Petitioners, Mary Gein Burns and husband, and their assignees, alleging they were trespassers upon a tract of land of approximately 831/3 acres in which Respondents claimed to own the entire surface estate. Respondents sought injunctive relief which was granted by the trial court upon a finding that Petitioners owned no interest in the land. Except as reformed in a manner not relevant here, the Court of Civil Appeals affirmed. 382 S.W.2d 501.

We hold that Petitioners were not trespassers because the doctrine of after-acquired title made good the title of Mary Gein Burns, and hence that of the Petitioner assignees, to an undivided interest in the land. The original 200-acre homestead of Lee Lord and wife, Martha J. Lord, included the land in controversy. Lee Lord died intestate and each of six children inherited an undivided 16% acres. A later judgment against the wife burdened her interest with a judgment lien. Thereafter, on May 1, 1938, Mrs. Lord died intestate, and each of the six children inherited an additional undivided 16% acres.

Under date of September 26, 1942, Ivy Lord, a son, joined by his wife, conveyed to their daughter, Mary Gein, á Petitioner here, his undivided 33% acres in the 200-acre tract. The provisions of this deed are quoted in the margin. On October 30, 1944, Ivy Lord acquired the respective undivided 16% acres which two of his brothers had likewise inherited from their father. On May 25, 1945, the judgment lien against the one-half interest of Martha Lord in the 200-acre tract was foreclosed and Mary Gein lost 16% acres which Ivy Lord had previously conveyed to her.

Martha Lord’s one-half interest in the 200 acres was conveyed to D. B. Speights by sheriff’s deed dated August 7, 1945, and on this same date Speights conveyed to Ivy Lord 331/3 undivided acres out of the interest he purchased at the foreclosure sale. This deed had been lost but its execution, delivery and terms were established in the record and such proof does not involve any application of the Statute of Limitations,

Article 5529, Vernon’s Annotated Civil Statutes. Speights testified to the fact that the undivided interest of 331/3 acres conveyed to Ivy Lord was out of the interest purchased by him at the foreclosure sale. It is thus clear that the 33}/$ undivided acres so acquired by Ivy Lord was adverse to the warranty in his deed to Mary Gein to the extent of the undivided 16% acres which he inherited from his mother and which Mary Gein lost in the judgment foreclosure.

We need not consider the legal effect, insofar as application of the after-acquired title doctrine is concerned, of the acquisition by Ivy Lord from his brothers of the undivided interests which they had inherited from their father. Respondents are in privity with Ivy Lord by subsequent conveyances. The doctrine of after-acquired title applies to a love and affection deed from father to son conveying a tract of land encumbered by a valid lien, the father having reacquired the land from the purchaser at foreclosure sale. Robinson v. Douthit, 64 Tex. 101 (1885).

The statement of the rule of after-acquired title from 19 Am.Jur. 614, § 16, was quoted with approval in Clark v. Gauntt, 138 Tex. 558, 161 S.W.2d 270 (1942), and Duhig v.

Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940): “It is a general rule, supported by many authorities, that a deed purporting to convey a fee simple or a lesser definite estate in land and containing covenants of general warranty of title or of ownership will operate to estop the grantor from asserting an after-acquired title or interest in the land, or the estate which the deed purports to convey, as against the grantee and those claiming under him.” In Moore v. Crawford, 130 U.S. 122, 9 S.Ct. 447, 32 L.Ed. 878 (1889), the court cited the statement by Mr.

Justice Strong, speaking for the court in Irvine v. Irvine, 9 Wall. 617, 19 L.Ed. 800 (1869), that “It is a general rule that when one makes a deed of land, covenanting therein that he is the owner, and subsequently acquires an outstanding and adverse title, his new acquisition inures to the benefit of his grantee, on the principle of estoppel.” In Duhig, the following statement from Smith v.

Williams, 44 Mich. 240, 6 N.W. 662 (1880), was quoted with approval: “When one assumes, by his deed, to convey a title, and by any form of assurance obligates himself to protect the grantee in the enjoyment of that which the deed purports to give him, he will not be suffered afterwards to acquire or assert a title, and turn his grantee over to a suit upon his covenants for redress. The short and effectual method of redress is to deny him the liberty of setting up his after-acquired title as against his previous conveyance.

This is merely refusing him the countenance and assistance of the courts in breaking the assurance which his covenants had given.” See also Cherry v. Farmers Royalty Holding Co., 138 Tex. 576, 160 S.W.2d 908 (1942); Caswell v. Llano Oil Co., 120 Tex. 139, 36 S.W.2d 208 (1931); Baldwin v. Root, 90 Tex. 546, 40 S.W. 3 (1897); and the annotations in 58 A.L.R. 345 and 144 A.L.R. 554. Ivy Lord’s deed to Mary Gein granted, sold and conveyed to her “all that certain tract or parcel of land being situated in Sabine County, Texas, and being a portion of the S. H.

Morris headright survey, and described as follows, to-wit: Being 331/3 acres undivided in and to 200 acres of said S. H.

Morris headright survey and described as follows: [metes and bounds description].” The habendum clause reads “to have and to hold the above described premises.” The warranty covenant is with respect to “the said premises.” The question to be decided is whether the deed conveyed and warranted title to an undivided 331/3 acres of land, or merely to the undivided interest of Ivy Lord inherited by him from his father and mother however large or small this interest may have been, and subject to any and all liens that may have constituted encumbrances thereon.

We hold that the deed conveyed and warranted title to the undivided 33[4 acres of land which Ivy Lord had inherited from his parents. The clear import of the deed when read from its four corners, and particularly of its operative provisions, is to this effect. Cf. Nichols v. Schmittou, 107 Tex. 54, 174 S.W. 283 (1915), White v. Dupree, 91 Tex. 66, 40 S.W. 962 (1897), Richardson v. Levi, 67 Tex. 359, 3 S.W. 444 (1887).

The sentence preceding the habendum clause upon which Respondent relies is not an intention clause restricting the granting clause to a conveyance of the grantor’s interest, whatever it might be, under which Mary Gein received all that Ivy Lord intended to convey and all that he warranted, i. e., his inherited undivided interest subject to the judgment lien against his mother.

To the contrary, the sentence constitutes an identifying reference to the interest in land which was the subject of the conveyance and comports with the granting clause which states in clear and unambiguous terms the conveyance by the grantor of an undivided 33[4 acres of land. The Court of Civil Appeals relied principally upon Clark v. Gauntt, supra; upon Wilson v. Wilson, 118 S.W.2d 403 (Tex.Civ.App.1938, no writ hist.), described by the Court as being a case “somewhat similar to the instant case”; and upon the Missouri case of Stoepler v. Silberberg, 220 Mo. 258, 119 S.W. 418 (1909).

Each of these cases, as here, required the construction of a deed and, in our opinion, each case is distinguishable. The granting clause of the deed of trust in Clark v. Gauntt conveyed only the “right, title and interest” of the grantor, and the holding was that a conveyance of land limiting the estate granted to the right, title and interest of the grantor is not such a conveyance as will estop the grantor from asserting title to an interest thereafter acquired by him. The deed considered in Wilson read, in part, “That I, Robert Wilson * * * have granted, sold and conveyed * * * unto the said A. C.

Irwin and John D. Wilson * * * All that certain tract or parcels of land, situated in Shelby County, Texas, being our one-fifth and entire interest [in] and to the estate of Media Wilson wife of Henry J.

Wilson and mother of Robert Wilson, said estate consisting of a [sic] undivided one-half interest in and to the following tracts or parcels of land. * * * ” The construction of the deed by the Court was that the grantor did not convey the land; as said by the Court, “Robert did not convey to Irwin and Wilson one-fifth of one-half of tracts Nos. 1 and 2, but only the interest inherited by him through his mother which he described as one-fifth of one-half.” So in this respect the case would appear to be within the ambit of Clark v. Gauntt as a “right, title and interest” conveyance.

But more distinguishing is the fact that Robert’s mother never owned any interest in the two tracts in question, and Robert never acquired any interest through her. The Court held there was no subsequently acquired title to the particular interest which the grantor conveyed and the title acquired by the grantor from another source (through his father) did not inure to the benefit of his grantee.

The Court in Steep-ler recognized that the deed when construed in the light of all its parts "does not attempt or purport to convey and warrant the lot itself but only ‘all such right, title and interest’ that Frederick Stoepler, at the date of the deed, had in and to said house and lot in Block 177, and such interest therein as he had inherited from his father and devised to him by the will of his father and such as he had inherited from his sisters and brother.” The passage of the after-acquired title to Mary Gein is not altered by the fact that Speights (who subsequently conveyed the undivided interest in the land to Ivy Lord) was the purchaser at the foreclosure sale rather than Ivy Lord.

Also, under the well settled rule, estoppel exists against Ivy Lord and subsequent purchasers from him with notice of his prior conveyance. Robinson v. Douthit, supra. Respondents are such subsequent purchasers, and the trial court erred in holding that Mary Gein and her assigns owned no interest in the surface of the land, and in enjoining them from occupying any portion thereof. The judgments of the District Court and the Court of Civil Appeals are reversed, and judgment is here rendered for Petitioners.

SMITH, HAMILTON and POPE, JJ., dissenting. . “The State of Texas/KNOW ALL MEN BY “County of Sabine [ THESE PRESENTS : “That we Ivy Lord, and wife, Eliza Lord, of the County of Sabine and State of Texas, for and in consideration of the sum of Ten ($10.00) Dollars cash to us in hand paid and the love and affection that we have for our daughter, Mary Geine Lord, the receipt of which is hereby acknowledged, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Mary Geine Lord, of the County of Sabine and State of Texas, all that certain tract or parcel of land lying and being situated in Sabine County, Texas, and being a portion of the S.

H. Morris headright survey, and described as follows, to-wit: “Being 33% acres undivided in and to 200 acres of said S. H. Morris headright survey, and described as follows: “Beginning on the bank of the Sabine River at a pine tree marked X about 15 ' ins. in dia. about 15 or 20 yds. below the mouth of Mill branch. Thence westerly crossing Mill branch to the N.E. corner of the original J. W. Carpenter home tract. Thence South with Carpenter’s East line to the N.E. corner of the old gin lot tract.

Thence South with the east line of the old gin lot tract and continuing to the street leading to the old Goodloe house and running east and west. Thence east with said street to the Burkeville road. Thence south with the Burkeville road to the N.W. corner of 152 acres owned by the U.S. Forest Service. Thence 79% E. with the north line of said Forest tract 1012 vrs. to corner.

Thence up Sabine river to the place of beginning, and containing 200 acres.” “It being understood that the interest hereby conveyed in said 200 acres of land being the interest inhearited by the said Ivy Lord, from the estate of his deceased father and mother, Lee Lord, and wife, Mrs. Lee Lord. “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 Mary Geine Lord, her heirs and assigns forever.

And we do hereby bind, ourselves, our heirs, executors and administrators to warrant and forever defend, all and singular the said premises unto the said Mart Geine Lord, her heirs and assigns, against every person whomeso-ever lawfully claiming or to claim the same or any part thereof. “In testimony, witness our signatures, this the 26 day of September, A.D. 1942. “Ivy Lord Eliza Lord.” . Mary Gein’s other undivided interest of 16% acres was conveyed to R. 0.

Goodrich by guardianship deed dated February 24, 1948, and is not in dispute. . “It being understood that the interest hereby conveyed in said 200 acres of land being the interest inhearited [sic] by the said Ivy Lord, from the estate of his deceased father and mother, Lee Lord, and wife, Mrs. Lee Lord.”