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Quitta v. Brier

145 S.W.2d 255
CourtCourt of Appeals of Texas
DecidedOctober 24, 1940
DocketNo. 11024
StatusPublished

This text of 145 S.W.2d 255 (Quitta v. Brier) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Quitta v. Brier, 145 S.W.2d 255 (Tex. Ct. App. 1940).

Opinion

GRAVES, Justice.

This cause has been submitted to the court upon the record and the briefs, without the benefit to it of oral argument, due in large measure to the fact that at that time the able counsel for both parties were engaged in rendering their professional assistance in their home county to the draft boards and registrants in the initiation there of the new Federal Draft Law.

However, the briefs have fully covered the questions involved, and this decision of them is based upon these presentments, along with the record.

This statement from the brief of the ap-pellees is thought to be correct, not only as to the nature and result of the proceedings below, but also as to the questions involved here:

“As filed and tried this is a trespass to try title suit, filed in the district court of Lavaca County, Texas, by Bettie Brier, joined pro forma by her husband, J. E. [256]*256Brier, against Mary Quitta, a feme sole, of Lavaca County, Texas. The property involved was the west one-half of Block 39 of the original town tract of the City of ' Hallettsville, Lavaca County, Texas, and the common source of title was J. M. Vesmirovsky, deceased, under the terms of whose will and the codicil thereto both the appellant and the appellees asserted title and claim to the property in dispute. Ap-pellees’ claim and title were based on provision Eight of the original will of said testator, executed the 17th day of September, A. D. 1936, which in words was as follows :
“ ‘Eighth: I give to my niece Bettie Tichacek, of Hallettsville, daughter of my deceased sister, Mrs. Annie Tichacek, the property and premises known as the Eilers property in the City of Hallettsville, now occupied by Gus Seiba; it being the same property bought by me from Wm. Eilers in the Eastern part of Hallettsville.’
“Appellant’s claim and title were based on two instruments:
“First, under provision Nine of the Codicil to the Will of the aforesaid J. M. Ves-mirovsky, executed on the 9th day of September, A. D. 1938, which in words was as follows:
‘“Ninth: Said clause “Ninth” shall hereafter read as follows: “I give to my sister, Mrs. Mary Quitta, of Lavaca County, Texas, my home place now and heretofore for many years used by me as my residence together with all furniture and household supplies therein and used in connection therewith. Said property is on East Fourth Street in the City of Halletts-ville, in Lavaca County, Texas”’;
“Second, under a deed of conveyance, dated Dec. 30, 1938, executed by L. P. Quitta and Alois Morkovsky, as independent executors of the Estate of J. M. Ves-mirovsky, deceased, to Mary Quitta, purporting to convey to the said Mary Quitta the Southwest one-fourth of Block 39, or the South one-half of the west half of Block 39, of the original town tract of the City of Hallettsville.
“Said will and codicil were admitted on Dec. 5, 1938, to probate by order of Paul H. Fertsch, Judge of the County Court of Lavaca County; * * * Said Executors’ deed was filed for record March 1, 1939, and is of record in Lavaca County.
“Appellees’ suit was filed September 3, 1939, alleging therein that the recording of said executors’ deed, and the facts, matters and description of property therein contained, constituted a cloud upon the title of the appellees. Defendant’s answer consisted of a general demurrer, plea of not guilty, and a general denial; the general demurrer was not presented to the court and a ruling thereon invoked.
“On trial of said cause, it was appellees’ contention that said executors’ deed overreached the bounds of said will and codicil, in that said conveyance purported to convey to appellant a part of the property and premises devised to the appellees in provision Eight under the description of: ‘the’ property and premises known as the Eilers property in the city of Hallettsville, now occupied by Gus Seiba.’
“At the time of the execution of said will, namely Sept. 17, 1936, when such description was employed, the testator lived on the southern part of the west half of Block 39, and the family of Gus Seiba lived on the northern portion. A fence, erected some ten years prior to this time, divided the two premises, the northern portion being approximately 135 feet in depth and the southern about 88 feet. (Dimensions shown by agreement). The executors’ deed endeavored to convey to the appellant the southern half of the west half of Block 39, or premises 111 feet in depth, thereby overlapping the grant in the will to the ap-pellees by some twenty-fout or twenty-six feet.
“A sketch is enclosed showing the relative position of the various grants, which sheds light upon the property and premises involved.
“The appellant contended that the testator in his will and codicil left uncertain the dividing line betweein the property and premises known as the Eilers property, then occupied by Gus Seiba, and that of the testator’s home place; that, there being doubt, the executors’ power and authority to divide and partition the same was invoked, and that the executors’ deed to Mary Quit-ta to the southern half of the west half of Block 39 was an equitable division of the properties.
“Judgment was rendered by the court— sitting without a jury — for the appellees to such part of the west half of Block 39 as were occupied by Gus Seiba on Sept. 17, 1936, namely such part as extended to the fence hereinbefore mentioned, and described by metes and bounds in said judgment, in accordance with dimensions agreed upon on trial of said cause.”

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145 S.W.2d 255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quitta-v-brier-texapp-1940.