Porter v. Wilson

389 S.W.2d 650, 8 Tex. Sup. Ct. J. 341, 1965 Tex. LEXIS 319

• Court: Texas Supreme Court
• Decided: April 7, 1965
• Docket: A-9867
• Status: Published

Opinions

SMITH, Justice.

The opinion heretofore delivered in this cause on December 2, 1964, is withdrawn and the following opinion is substituted therefor.

This trespass to try title suit was brought on April 17, 1962, by the Respondents, the Wilsons, against Thomas W. Porter and others to recover title and possession to 11.37 acres of land out of the west part of Section 11, Block 6, I & GN RR Company survey, situated in Randall County, Texas. However, the controversy presented in the Court of Civil Appeals and in this Court is solely between the Wilsons and Porter, and only involves the title to lots numbered twenty-one (21), and twenty-four (24) in Block Numbered Thirty-six (36) of the Palisades in Randall County, Texas. Both lots lie within the boundaries of the 11.37 acres described in the Wilsons’ petition.

The Wilsons pleaded both the Five¹ and Ten² Year Statutes of Limitations, and issues as to both statutes were submitted to a jury for determination. The judgment of the trial court for the Wilsons, allowing a recovery of title to the entire 11.37 acres, including Lots 21 and 24, is based on affirmative answers in favor of the Wilsons on both Limitation issues. Prior to the submission of these issues pertaining to Lots 21 and 24, Porter filed and presented a Motion for Instructed Verdict which was overruled. Subsequently, Porter filed a motion for judgment non obstante veredicto, and a motion for a new trial. These motions were both overruled.

On appeal to the Court of Civil Appeals Porter, as Appellant, presented points asserting that the trial court erred in overruling the above-enumerated motions. Porter’s principal contention throughout was that there was no evidence of probative force to support the findings of the jury that the Wilsons held title under and by virtue of either statute. The Court of Civil Appeals, 371 S.W.2d 611, affirmed the judgment of the trial court on the ground that the Wilsons had established title under the Five Year Statute of Limitations. Therefore, the court did not consider the points before it attacking the trial court judgment insofar as it was based upon the Ten Year Statute of Limitations.

Porter did not assign as error in his motion for rehearing the failure of the Court of Civil Appeals to pass upon these points, and his application for writ of error fails to present such points.

We have concluded to sustain Porter’s contention that the Wilsons have failed to establish title under the Five Year Statute of Limitations, but the Wilsons contend that the judgment of the trial court must be affirmed because Porter did not assign as error the failure of the intermediate court to pass upon the points attacking the judgment of the trial court based upon the finding of the jury that the Wilsons had established title under the Ten Year Statute of Limitations. With this latter contention we do not agree. Since we have concluded to reverse the judgment of the Court of Civil Appeals, holding that the Wilsons have title under the Five Year Statute of Limitations, we will dispose of the law questions presented in the application for writ of error, and the pertinent law questions presented on appeal to the Court of Civil Appeals which were not considered by that court. See McKelvy v. Barber, opinion by this Court, delivered July 8, 1964, 381 S.W.2d 59.

For the reasons now to be stated, we reverse the judgments of both the trial court and the Court of Civil Appeals, and render judgment that the Wilsons take nothing by their suit so far as Lots 21 and 24 are concerned.

FIVE YEAR STATUTE OF LIMITATIONS

The principal basis for the Wilsons’ contention that the judgments of the courts below should be affirmed is the holding announced in Rosborough v. Cook, 108 Tex. 364, 194 S.W. 131 (1917), which is to the effect that in order to support a limitation title under the Five Year Statute of Limitations, it is not necessary that the deed, under which the claim is made, convey any title. The contention is that the grantor may be wholly barren of any vestige of title, and, therefore, the deed pass no semblance of title; yet, if it describes and purports to convey the land and is on its face a good deed, it meets the requirements of the statute, and the claimant under the deed would prevail, provided, of course, that all other requirements of the statute have been met.

The Wilsons also cite in support of their contention the case of Benskin v. Barksdale, Tex.Com.App., 246 S.W. 360 (1923), wherein it was held, in part:

“The deed is sufficient to support adverse possession and to set in motion the five-year statute of limitation. Parker v. Newberry, 83 Tex. 428, 18 S.W. 815 * * *. The statute, in so far as a deed is concerned, demands only that the person having peaceable and adverse possession of real estate be ‘claiming under a deed or deeds duly registered.’ Rev.St. Art. 5674. Of course such deed must describe the land. We think the instrument * * falls within the class designated as deeds.”

We cannot agree that the judgments reached in these cases are controlling. The deed,³ under which the Wilsons seek to perfect title under the Five Year Statute of Limitations, was executed by J. H. Bright and wife on May 28, 1956. This deed recites that the Brights “bargain, sell, release and forever quit claim unto the said Frank P. Wilson, Sr., and wife, Iris Kirk Wilson, their heirs and assigns, all our right, title and interest in and to that certain tract or parcel of land. * * * ” The habendum clause reads as follows:

“TO HAVE AND TO HOLD the said premises, together with all and singular the rights, privileges and appurtenances thereto in any manner belonging unto the said Frank P. Wilson and wife, Iris Kirk Wilson, their heirs and assigns forever, so that neither we, the said grantors, nor our heirs, nor any person or persons claiming under us shall, at any time hereafter, have, claim, or demand any right or title to the aforesaid premises or appurtenances, or any part thereof.”

The controlling question in this case is whether the instrument here involved is sufficient to give notice of the nature and extent of the claim asserted thereunder so as to qualify under the five-year statute. This question does not depend upon whether the grantors actually owned an interest in the property described in the instrument or not, but we must ascertain from an examination of the instrument whether it purports to convey the land itself or merely some wholly undefined and uncertain interest therein and in effect is a mere release of an invalid or doubtful claim.

It seems well settled that a deed purporting to convey an undivided interest in land will not support a claim to the entire tract under the five-year statute but will only operate as a claim to the interest which the instrument on its face purports to convey. Martinez v. Bruni, Tex.Com.App. (1921), 235 S.W. 549, holdings approved by the Supreme Court, 2 Tex.Jur.2d 244, Adverse Possession, § 128. An instrument which purports to convey such right, title and interest as a grantor may have and no more will not qualify as a deed under the statute as it does not purport to convey the land itself nor does it specify any particular interest which is purportedly conveyed. Here the limitation claimants contend that the instrument under which they hold affords a basis for a limitation claim to all of Lots 21 and 24 under the five-year statute. The circumstance that the instrument employs the words, “all our right, title and interest” or the word “quitclaim” is not fatal to their contention as it must be determined from the instrument as a whole whether it purports to convey the land itself or merely such interest as the grantor may have therein.

For example, in Jackson v. Heath, Tex.Civ.App. (1959), 325 S.W.2d 453, no wr. hist., it was held that an instrument which quitclaimed all the right, title and interest of the grantor did not qualify under the five-year statute. The habendum clause contained in such instrument was as follows: “to have and to hold the above released rights, titles, interests, claims and demands, to the said [grantors] their assigns. forever.” This decision is correct. From the face of the instrument it cannot be said that the grantors purported to convey the land or a specified interest therein. Instruments purporting to convey or release one’s right, title or interest are commonly used to convey undivided interests of an unknown extent or claims having a dubious basis. It would be anomalous to say that a deed to an undivided one-third interest would support a claim to no more than an undivided one-third interest while a release or quitclaim of an unspecified right, title or interest would give notice and hence support a claim to the entire tract of land. In cases wherein the courts have construed an instrument employing the words, “all my right, title and interest” as one purporting to convey the land itself, they have found some wording in the instrument which evidenced an intention to convey the land itself rather than the right, title and interest of the grantor.

In Cook v. Smith, 107 Tex. 119, 174 S.W. 1094, 3 A.L.R. 940 (1915), this Court construed an instrument which contained the following clauses:

Granting Clause: “ ‘ * * * have bargained, sold, released and forever quitclaimed, and by these presents do hereby bargain, sell, release and forever quitclaim, * * * all my right, title and interest in and to that certain tracts or parcels of land * * ”

Habendum Clause: ‘“To have and to hold the said premises, together with all and singular the rights, privileges and appurtenances thereto in any manner belonging to the said A. A. Neff and his heirs and assigns forever, so that neither I, the said R. Potts, nor my heirs nor any person or persons claiming under me, shall at any time hereafter have, claim or demand any right or title to the aforesaid premises or appurtenances or any part thereof.’ ”

Intention Clause: This clause follows a description by block and number of a large number of lots including the lot in controversy and also several small tracts by metes and bounds. The clause reads as follows:

“ ‘ * * * and all other real estate that I now own and am possessed of in the town of Paducah, in Cottle county, Texas. All of the above town property is situated in the town of Pa-ducah, in Cottle county, Texas, as shown by the original recorded plat of said town, of record in vol. 5, page 81, in the deed records of Cottle county, Texas; and it is my intention here now to convey to the said A. A. Neff all the real estate that I own in said town of Paducah in Cottle county, Texas, whether it is set out above or not.’ ”

The Court then said:

“The character of an instrument, as constituting a deed to land or merely a quitclaim deed, is to be determined according to whether it assumes to convey the property described and upon its face has that effect, or merely professes to convey the grantor’s title to the property. If, according to the face of the instrument, its operation is to convey the property itself, it is a deed. If, on the other hand, it purports to convey no more than the title of the grantor, it is only a quitclaim deed. Richardson v. Levi, 67 Tex. [359], 364, 3 S.W. 444; Threadgill v. Bickerstaff, 87 Tex. 520, 29 S.W. 757.”

The Court then made special reference to the granting clause and the habendum clause of the conveyance involved, which clauses have been heretofore set out and said:

“If the character of the instrument were dependent, alone, upon the construction of [the granting and haben-dum clauses] * * * there could be no doubt * * * of its being simply a quitclaim deed, * *

It should be noted that the granting clause contained the words, “all my right, title and. interest,” and that the word's of the habendum — “to have and to hold the said premises,” were not construed to make the instrument operate “to convey the property described,” but the instrument remained one “merely professing’ to convey the grantor’s interest to the property.” In other words, the word “premises” was construed as applying to the right, title and interest of the grantor rather than to the tracts of land described in the deed.

It was held, however, that when the instrument was construed as a whole and the “Intention Clause” given due weight and consideration, the instrument was properly construed as one purporting to convey the land rather than such interest the grantor might have therein. It was held that one holding under the instrument in question would be protected as an innocent purchaser for value. While the five-year statute of limitations was not involved in Cook v. Smith, supra, the proper construction of the instrument of conveyance was at issue, i. e., did the deed purport to convey the land itself or merely the grantor’s interest therein, if any?

It should be pointed out that the Court used the word “quitclaim deed” to describe an instrument which does no more than purport to convey the right, title and interest of a grantor. The Court held that the instrument involved in Cook v. Smith purported to convey the land and was not a quitclaim, despite the use of the words, “ ‘release and forever quitclaim * * * all my right, title and interest in and to’ ” the land involved.

It was similarly held in Parker v. Newberry, 83 Tex. 428, 18 S.W. 815 (1892), that an instrument which used the word “quitclaim” in a clause releasing a 320-acre tract from the warranty clause did not render the instrument of conveyance ineligible under the five-year statute. The words “right, title and interest” did not appear in the deed involved in Parker v. Newberry.

Perhaps the case which lends most support to respondent’s position is Benskin v. Barksdale, Tex.Com.App. (1923), 246 S.W. 360, heretofore mentioned. Benskin recognizes as does Rosborough v. Cook, supra, that for an instrument to qualify under the five-year statute it must purport to convey the land and not merely the grantor’s interest in the land. The granting clause in Benskin v. Barksdale used the words “bargain, sell, release and forever quitclaim * * * all of my right, title and interest in and to [the described property].”

The habendum clause read as follows:

“ ‘To have and to hold the said premises together with all and singular the rights, privileges and appurtenances thereto in any manner belonging, unto the said J. M. Benskin, his heirs and assigns, forever, so that neither I, the said J. J. Ellis nor my heirs, nor any person or persons claiming under me, shall, at any time hereafter, have, claim or demand any right or title to the aforesaid premises or appurtenances, or any part thereof. But it is expressly agreed, understood and stipulated that a vendor’s lien is retained on the aforesaid described premises until the aforementioned and described note and all interest thereon has been fully paid when this deed, shall become absolute as a quitclaim deed.’ ”

The Commission held that the wording of the habendum clause converted the instrument into one which purported to convey the land itself and not merely the interest which the grantor actually had therein. It was said that:

“The granting clause in the above deed [which employs the words ‘all my right, title and interest’] is indefinite and uncertain as to the extent of the estate granted in the lands described.

“ * * * The habendum of the above deed is not so flexible, pliant, and adaptable in its revelation of the extent of estate, in the land, intended by the parties to be passed. By its terms Benskin, his heirs and assigns, are to have and to hold the premises, together with all and singular the rights, privileges, and appurtenances thereto in any manner belonging, forever.

“We do not think the language of the instrument shows an intent merely to quitclaim the leasehold interest of Ellis.”

We have heretofore set out the clauses under consideration in Cook v. Smith, supra, wherein it was said that the habendum clause would not convert a “right, title and interest” instrument into one purporting to convey the land itself, although it was held that the “Intention Clause” would have that effect. In our opinion Cook v. Smith sets forth the better rule insofar as the construction and effect of the habendum clause is concerned. It seems that a grantor who deliberately chooses the words, “right, title and interest” would not intend to destroy the effect of such words by using an ha-bendum clause using the common phrase, “To have and to hold the above described premises.”

TAX DEEDS

Commonly the phrase “right, title and interest” is used in sheriffs’ deeds, particularly those which take place as a result of a tax lien foreclosure. The sheriff obviously does not own the property. He is necessarily conveying another’s interest therein, but if the taxing authorities have performed their respective duties as to the levy and assessment of taxes (and the law presumes that they have) the deed will operate to convey the interest of the true owner of the property, hence the sheriff’s deed following a tax lien foreclosure will qualify as notice under the statute as it purports to convey the interest of the true owner of the property. In the ordinary “release of all my right, title and interest” instrument, the grantor does not purport to be the owner of the land or any particular interest therein. The Court in the early case of Wofford v. McKinna, 23 Tex. 36 (1859), had under consideration the question of whether a tax deed would afford the basis for establishing title under the five-year statute. The Court, in answering this question in the affirmative, said:

“ * * * [T]he statute intends an instrument which is really and in fact a deed, possessing all the essential legal requisites to constitute it such in law: * * * ‘an instrument, by its own terms, or with such aid as the law requires, assuming and purporting to operate as a conveyance: not that it shall proceed from a party having title, or must actually convey title to the land; but it must have all the constituent parts, tested by itself, of a good and perfect deed.’ ” (Emphasis added.)

In the case of Seemuller v. Thornton, 77 Tex. 156, 13 S.W. 846 (1890), involving a tax deed, after quoting the above from Wofford v. McKinna, the Court held that the instrument was in the form of a deed “professing” to convey the land in controversy. Where the instrument purports to convey the land itself, even though the instrument uses the quitclaim terms of “right, title and interest,” the instrument qualifies to support a claim under the Five Year Statute of Limitations. See Niday v. Cochran (1906), 42 Tex.Civ.App. 292, 93 S.W. 1027, no writ history.

We conclude that since the Bright-Wilson deed to Lots 21 and 24 did not purport to convey the land, Rosborough v. Cook, supra, but only conveyed the Brights’ right, title and interest in said lots of land, the Wilsons could perfect no title to the two lots under the Five Year Statute of Limitations.

TEN YEAR STATUTE OF LIMITATIONS

There is no evidence of probative force in the record to support the finding of the jury that the Wilsons perfected title under the provisions of Article 5510, supra. The trial court erred in failing to grant Porter’s motions for an instructed verdict and for judgment non obstante veredicto. Our disposition of the Wilsons’ claim of title under the Five Year Statute of Limitations makes it clear that the Brights recognized the title to Lots 21 and 24 as having been excluded from their deed.

Clearly, the Brights entered into possession under a deed which expressly excepted Lots 21 and 24. Therefore, Bright’s possession, if any, is referable to the deed, and it is presumed that possession conforms to the deed and is confined to the limits thereof. Southern Pine Lumber Company v. Hart, 161 Tex. 357, 340 S.W.2d 775 (1960).

In 1948 or 1949, the Brights entered into possession of the 11.37 acres; they lived in a house situated upon Lot 14 within the boundaries of the 11.37 acres. On May 28, 1956, Bright conveyed Lots 21 and 24 to the Wilsons. On April 17, 1962, this suit was filed. Thus, it is seen that if the Wil-sons are to recover title under the Ten Year Statute of Limitations, Article 5510, supra, they must rely upon the adverse possession, if any, by Bright and themselves.

The Wilsons must prove that they have had actual possession of such lots, and that the possession is of “such a character as of itself will give notice of an exclusive adverse possession, and mature into title after the statutory period,” in this case ten years. Southern Pine Lumber Company v. Hart, supra. See McCall v. Grogan-Cochran Lumber Co., 143 Tex. 490, 186 S.W.2d 677 (1945). We have examined the statement of facts, including the testimony of the witnesses, and find no evidence to support the finding of the jury that the Wilsons have title under the Ten Year Statute of Limitations. The evidence shows that a fence was “around” the 11.37 acres, and that Lots 21 and 24 were within the fence. Some of the witnesses testified that the fence was around the land he (Bright) bought. One of the witnesses testified that he was under the impression that “Mr. Bright bought all the land lying within the fences.” The record is not clear, but some part of the 11.37 acres was not within the fence. Mr. Bright “strengthened” the fences after moving into the house on Lot 14. As one witness said: “* * * that fence wasn’t changed any at all, except maybe where it was nailed on to a tree or something, and he [Bright] moved it straight, and put in some posts.” One witness testified that “He [Bright] had some ponies in there, and he lived on it." Some of the witnesses testified that Bright made no distinction in the character of the use of the land within the enclosure. Mr. Bright did not testify, and we find no evidence that Bright adversely claimed the Lots 21 and 24. Therefore, it is conclusive that no adverse possession has been established that would constitute compliance with the provisions of Article 5510, the Ten Year Statute of Limitations. Wilson testified that he claimed the land he bought and went into possession immediately after June 1, 1956; that he lived on Lot 14. However, he admitted that he “offered to accept” Mrs. Porter’s proposition to sell Lots 21 and 24. Wilson testified that Porter offered to “get title” from Mr. Simmons and convey the title to Wilson for $50.00. The Tax Assessor and Collector of Canyon Independent School District testified that Wilson paid taxes on Lots 21 and 24 beginning with the year 1956, but that his records showed the owner to be W. B. Simmons.

The judgments of the trial court and of the Court of Civil Appeals awarding title to the Wilsons to Lots 21 and 24 are both reversed, and judgment is here rendered that the Wilsons take nothing by their suit in so far as Lots 21 and 24 are concerned. In all other respects, the judgments of both courts are affirmed. Affirmed in part, and reversed and rendered in part. All costs are adjudged against the respondents, the Wilsons. Respondents’ motion for rehearing is overruled.

CALVERT, C. J., and GRIFFIN and WALKER, JJ., dissenting.

1 . Art. 5509, Vernon’s Ann.Civ.St.Tex. “Every suit to recover real estate as against a person having peaceable and adverse possession thereof, cultivating, using or enjoying the same, and paying taxes thereon, if any, and claiming under a deed or deeds duly registered, shall be instituted -within five years next after cause of action shall have accrued, and not afterward. This article shall not apply to one in possession of land, who de-raigns title through a forged deed. And no one claiming under a forged deed, or deed executed under a forged power of attorney shall be allowed the benefits of this article.”

2 . Art. 5510, V.A.T.S. "Any person who has the right of action for the recovery of lands, tenements or hereditaments against another having peaceable and adverse possession thereof, cultivating, using or enjoying the same, shall institute his suit therefor within ten years next after his cause of action shall have accrued, and not afterward. The peaceable and adverse possession contemplated in this article, as against the person having right of action, shall be construed to embrace not more than one hundred and sixty acres, including the improvements or the number of acres actually enclosed, should the same exceed one hundred and sixty acres; but when such possession is taken and held under some written memorandum of title, other than a deed, which fixes the boundaries of the possessor’s claim and is duly registered, such peaceable possession shall be construed to be co-extensive with the boundaries specified in such instrument.”

3 . “ * * * do —, by these presents BARGAIN, SELL, RELEASE, AND FOREVER QUIT CLAIM unto the said Frank P. Wilson and wife, Iris Kirk Wilson, their heirs and assigns, all our right, title and interest in and to that certain tract or parcel of land lying in the County of Randall, State of Texas, described as follows, to-wit:

“Lots Numbers Twenty-one (21) and Twenty-four (24) in Block Number Thirty-six (36) of The Palisades, a Subdivision of a part of Section No. 11, Block No. 6, I&GN RR Co. in Randall County, Texas, as shown by the map or plat thereof of record in the Deed Records of Randall County, Texas.”