J. L. Cauble et al. v. Victoria Worsham et al., 96 Tex. 86

WILLIAMS, Associate Justice. in error brought this suit to recover of plaintiff in error 153 acres of land in two tracts, one of 100 acres and the other of 53 acres; and in the District Court judgment was rendered for plaintiff, Mrs. Worsham, for an undivided half of the 100 acres, and for defendant, Cauble, for the 53 acres. The appeal of Cauble to the Court of Civil Appeals involved only the title to the 100 acres, and the judgment of that court, affirming that of the District Court, is brought in review by this writ of error. The titles of both parties proceed from D. B.

Cauble, who, prior to 1876, was the owner of the land in controversy. In that year he made a verbal gift-of the 100-acre tract to his daughter, Mrs. S. E. Kirkpatrick, who with her -husband took possession of and made valuable improvements upon it and occupied it as their homestead for about two years. ■ In 1878 they sold the land to F. D. De Chaumes, and, as D." B. Cauble had made no deed to Mrs. Kirkpatrick, it was orally agreed between all the parties that he should convey it directly to De Chaumes, which he did August 9, 1878. This deed was not recorded until March 18, 1895.

Kirkpatrick and wife received the consideration and surrendered possession to De Chaumes and moved to another county, where they remained until 1884, when they returned to .the neighborhood of the land. In the meantime F. D. De Chaumes had died and his widow had married one Williams, who was living with her upon the 100-acre tract. Kirkpatrick and wife bought from Mrs. Williams an interest and obtained a deed, the character of both of which is very indefinitely stated in the oral testimony in the record, the deed not having been produced. Concerning this transaction Mrs.

Kirkpatrick testified: “We bought the land from the old lady and got a lifetime dowry.” “Mrs. De Chaumes had married again, and was Mrs. Williams then. I don’t know whether she had made me a deed, what you call a deed; she made me a lifetime dowry; she made the deed, or whatever you might call it, to me and Hr. Kirkpatrick. We turned it and all the papers over to Mr. Surginer when we sold the place.” “We sold it to him (Surginer) after we bought it back from the old lady De Chaumes.” “Mrs.

De Chaumes had married Williams when I returned to buy the place from her; she had been married but a short time and her children were living with her. I contracted to buy from her the lifetime interest; she is dead; she died four or five years -after I bought her lifetime interest. We moved off the place and Surginer took possession of it. When I bought the place from Mrs. Williams I moved on it and moved off again inside of a year. The instrument that 1 got from Mrs. Williams was acknowledged before Calloway, I did not file it for record. Nobody joined in the deed besides Mrs.

Williams; none of the children by either marriage joined in it.” “When I bought the land back from Mrs. Williams, I bought the entire 154 aeres; I gave her five or six hundred dollars for the land when I bought it back.” “I bought a lifetime interest from Mrs. De Chaumes; I don’t remember the words of the deed. I don’t remember what the wording of the deed was.” After this transaction Mrs. De Chaumes left the place and Kirkpatrick and wife, claiming under it alone, took and retained possession for less than a year, when Columbus Surginer bought the land, taking a warranty deed from D. B.

Cauble, March 14, 1885, and a quitclaim deed from Kirkpatrick and wife April 1, 1885. Surginer paid the value of the land, and the testimony of Mrs. Kirkpatrick is that she received this consideration. Surginer took possession and afterwards conveyed part of the land to M. Wilhoit, April 7, 1887, and the other part to plaintiff in error, J. L. Cauble, August 19, 1887. Wilhoit conveyed his interest-to J. L. Cauble, October 22, 1887. Surginer, Wilhoit and Cauble have kept up con-" tinuous possession under their deeds, which were duly registered, and have paid the taxes on the land. Mrs.

Williams died in 1891 or 1892 and this suit was begun December 19, 1889. The plaintiffs assert the title of the ten children of De Chaumes, some of whom were the children of the widow who survived him and others the fruit of a former marriage. Five of them were held by the District Court to be barred by limitation, but the other five, having been under disability, were held not to be barred, and, as Mrs. Worsham held their interest by assignment, she recovered the half interest adjudged to her.

The defendant, Cauble, under his chain of title, claimed that Surginer, Wilhoit, and himself were all innocent purchasers for value without notice of the unrecorded deed from D. B. Cauble to De Chaumes, but upon evidence tending to show notice to each of them, the jury found against them on this issue, and this finding is not attacked. Cauble also claimed that, under the gift from D. B. Cauble to Mrs.

Kirkpatrick, accompanied by possession and improvement, such title vested in her, as her separate property and homestead, as could not be conveyed by the donor, nor by the donee, except by the joint deed of herself and husband properly acknowledged, and that this title vested in him through the subsequent deed of Kirkpatrick and wife to Surginer, , and entitled him to recover, without regard to other issues, and he requested a charge embodying this contention which the court refused to give. The Court of Civil Appeals held that Mrs.

Kirkpatrick was estopped by the transaction bétween herself and her father and De Chaumes, and that defendant could not assert her right under the gift; and it was upon assignments calling in question these rulings that this writ of error was granted. The evidence was sufficient to justify a finding that, upon faith of the gift from her father, Mrs. Kirkpatrick and her husband entered into possession and made improvements of' such valuable and permanent character as entitled her to a specific performance at the hands of her father.

Everything essential to take the oral gift out of the statute of frauds and to authorize the enforcement of it in equity having transpired, the equitable title to the property was .thereby vested in the donee in her separate right. This proposition has long been settled by the decisions of this court. Hendricks v. Snediker, 30 Texas, 296; Murphy v. Stell, 43 Texas, 123; Wells v. Davis, 77 Texas, 636.

Parol gifts thus executed are unquestionably placed by our decisions upon the same footing as parol sales of land, and where there has been such performance by possession and improvement as to meet the requirements of the decisions, the right which vests in a donee is of the same character as that which vests in a vendee, viz., the equitable title.. Of such a right acquired by a vendee it was said in Harold v. Sumner, 78 Texas, 583: “Under this state of facts we think it quite clear that H. Chowning acquired a good title to the lots from T.

Chowning.” Several of the decisions recognize the right of the holder of such a title to recover or defend upon it in the action of trespass to try title either against the vendor or other persons. The estate which is thus created is, in equity, one both of freehold and inheritance. It is provided by

article 624, Revised Statutes, “Ho estate of inheritance or freehold” shall be conveyed unless by writing; and by

article 635, that “the husband and wife shall join in the conveyance of real estate, the separate property of the wife,” and that the deed shall be separately acknowledged by the wife. From this it seems evident that Mrs. Kirkpatrick acquired an estate in the land which could not be conveyed by D. B. Cauble, and which could only.be legally conveyed by herself and her husband. It is urged that because her right was not a legal but only an equitable one, she could legally authorize the conveyance of it by her father by deed passing his legal title.

But no such distinction between conveyances of legal and equitable estates is admissible under our statutes. Masterson v. Little, 75 Texas, 697; Sprague v. Haines, 68 Texas, 217. Since her father could not by his mere deed pass her title, a conveyance by her was necessary ; and that conveyance could not consist of her parol agreement either that she would or that her father might convey, for the reason that the statute requires a particular kind of conveyance to divest her separate estate. Hor is it true that the defendant could not assert that the transaction was inoperative upon the title.

His position is that, since this title did not pass to De Chaumes but remained in Mrs. Kirkpatrick, Surginer regularly acquired it from her and defendant acquired it from Surginer. He is not'a stranger to the equity asserted against the legal title, but connects himself with it by the deed from the original holder of it. Little v. Masterson, supra; Harold v. Sumner, 78 Texas, 582; Murphy v. Stell, supra; Secrest v. Jones, 21 Texas, 132.

An attempt was made in the argument to show that the quitclaim deed of the Kirkpatricks to Surginer was intended to convey only such interest as the grantors had acquired through their trade with Mrs. De Chaumes under which they re-entered. But the record only states the quitclaim deed as covering the 100 acres, which we understand to mean that the grantors conveyed such interest as they had in the tract. The deed therefore operated upon any title of which they were possessed.

Evidence was admissible to show any title which was vested in the grantors at the date of their deed, and the effect of the deed upon such title could not be limited by parol evidence. Ragsdale v. Mays, 65 Texas, 257. The facts stated do not show an estoppel against Mrs. Kirkpatrick. The elements essential to the estoppel of a married woman have been so often dismissed and stated in the decisions of this court as to render elaboration unnecessary.

The evidence shows no misrepresentation, concealment or deception of any character on the part of the feme covert; nor does it tend to show that De Chaumes was ignorant of the true state of the facts and the character of her right. It exhibits only a mistaken attempt to obtain the title of a married woman by an ineffectual method. To hold that she is estopped by her bare parol agreement to pass away her title, even for a consideration received, would be to authorize a mode of conveyance forbidden by the statute by the mere substitution of terms. Berry v. Donley, 26 Texas, 738; Fitzgerald v.

Turner, 43 Texas, 79; Mc-Laren v. Jones, 89 Texas, 131; Steed v. Petty, 65 Texas, 490. Plaintiff in error requested a charge explaining to the jury the essentials of a valid conveyance by Mrs. Williams and her husband and the effect upon questions of limitation of a finding that' a sufficient conveyance had not been made by them to pass any interest.

We are of the opinion that the evidence which we have/recited is too uncertain to establish a conveyance of any particular character, and no question should have been submitted to the jury upon the assumption that either party might have acquired rights through a conveyance. ¡Neither side produced a deed, nor gave any reason why it was not done; and neither had the right to have the jury to indulge in mere conjecture as to the true nature of the transaction. The assignment upon the refusal of the special charge only indirectly raises a question of some merit.

Such title as De Chaumes obtained from Cauble was community property of himself and the wife who survived him. This suit was instituted by his children before the death of the survivor. When they sued they only had title to the interest inherited from their father, or such portions of it as defendants had not acquired by limitation. Had limitation then been running against Mrs. Williams it would not have been stopped by the suit of her cotenants asserting no right in her. Stovall v. Carmichael, 52 Texas, 383.

Limitation was not running against her because of her coverture, but she died pending suit, and her interest descended to her children, who were parties therein. Their disabilities could not be tacked to hers, but limitation, unless prevented by the pendency of the action, commenced to run against this interest upon her death. The record has probably not been made up with reference to this question; and it has not been argued. As we have concluded to remand the case for a new trial, we merely suggest it to avoid misapprehension, without undertaking to definitely determine the rights depending on it.

Reversed and remanded.