Swearingen v. Reed

21 S.W. 383, 2 Tex. Civ. App. 364, 1893 Tex. App. LEXIS 88

• Court: Court of Appeals of Texas
• Decided: February 16, 1893
• Docket: No. 89.
• Status: Published

Opinion

TARLTON, Chief Justice.

This is an appeal prosecuted by M. S. Swearingen from a judgment rendered by the District Court of Childress County in behalf of Fannie A. Reed, the wife of James A. Reed. This lady, joined by her husband, brought this suit, in the nature of an action of trespass to try title, to recover from appellant, M. S. Swearingen, in her separate interest, 10 acres of land out of the south half of section 576, block H, in Childress County, Texas. This section was located by virtue of certificate number g-fg, granted to the Waco & Northwestern Railway Company.

In 1886 the State Land Board, under the Act of 1883, and upon the application of J. A. Reed, sold and awarded to him the south half of the section described, which was school land.

January 13, 1888, James A. Reed, for the recited consideration of §450, executed a deed with clause of general warranty to his wife, Fannie A. Reed. This deed contains no recital that the conveyance is intended for the separate use and benefit of the wife. It purports to be executed in Childress County, Texas. The land conveyed is described therein as “the south half of section number 576, block H, Waco & Northwestern Railway Company survey, certificate number gJ-g.” The State or county in which the land is situated is not recited. The deed, properly acknowledged, was recorded in Childress County, January 13, 1888. It is alleged in the petition, that the proper number of the certificate referred to in the deed is g|g, and that the number recited in the deed as gj-g was inserted by mistake. James A. Reed, the grantor, testified that the deed should have recited the certificate number as gf-g, instead of g-J-g; that the former is the true certificate number of section 576.

On this conveyance rests the claim of the appellee Fannie A. Reed. August 6, 1890, James A. Reed filed an instrument designating 200 acres of the south half of section 576 as the homestead of himself and family. On the same day he executed to J. W. Swearingen a deed conveying 10 acres out of the south half of the survey named, the 10 acres, however, not being included in the homestead designation. August 11, 1890, J. W. Swearingen conveyed the 10 acres named to M. S. Swearingen, the appellant herein.

The appellant and the appellee Fannie A. Reed claim under James A. Reed as a common source of title.

The two assignments of error inserted in appellant’s brief contain, in effect, the same complaint, viz., that the court erred in concluding as a matter of law that by the deed from James A. Reed to his wife, Fannie A. Reed, the former was divested of all title to the entire south half (including the 10 acres in controversy) of section 576, block H, Waco & Northwestern Railway Company stirvey, located by virtue of certificate T|g-, in Childress County.

1. As the appellant deraigns his title from James A. Reed as the common source, we find no merit in his several propositions asserting the existence of an outstanding title in the State, because of the fact alleged by Mm (though not found by us to exist), that Reed failed to comply with the statute of 1883 providing for the sale of school land. The appellant will not be permitted to impugn the title of Reed, under which he claims, but is held to admit its validity. Glover v. Thomas, 75 Texas, 506.

2. The deed from James A. Reed to his wife indicates on its face, we think, an intention by him to vest in her as her separate property the land therein described. In a transaction between husband and wife it is not necessary that the deed, in order to have the effect referred to, should contain a recital that the conveyance is intended for the separate use of' the wife. Lewis v. Simon, 72 Texas, 475; Callahan v. Houston, 78 Texas, 494. Only creditors or subsequent purchasers without notice can question the validity of such a deed. De Garca v. Galvan, 55 Texas, 53;. Brown v. Brown, 71 Texas, 355.

James A. Reed testified, “ that he executed the deed in question to his wife for the purpose of inducing her to come to Texas and live with him; that he did not intend by the execution of the deed that the property therein described should become the separate property of his wife; that he had intended that himself and his wife should own it equally, living on it and using it together; that he did not communicate to his ^ife that such were his intentions in making the deed.” The court, in a finding of fact, holds this evidence to be inadmissible and declines to consider it in arriving at his conclusions.

Under a proposition in appellant’s brief, to the effect that the evidence shows that it was not the intention of James A. Reed to vest the title in his wife to the property in question, it is sought, in an argumentative way, to complain of this finding of the court. It was the duty of appellant, if he desired to invoke a review by us of this action of the court, to complain of it by specific assignment of error. As he has failed so to suggest the question, we decline to consider it. We think that had the court weighed the testimony and. notwithstanding, found that it was the intention of James A. Eeed to convey the property to the separate benefit of his wife, there would be sufficient evidence gathered from the terms of the deed itself to sustain this finding. We express no opinion, however, on the admissibility of the statement of the husband.

3. It appears that at the date of the execution of this instrument James A. Eeed had made to the State only one payment of the purchase money of the land, the remaining indebtedness not having matured. On this fact appellant founds the contention, that the contract between Eeed and his wife (having necessary reference to future payments for the land to be made out of the community funds) was void. We are unable to sustain this proposition. As appellant does not pretend to have occupied the attitude of a creditor of James A. Eeed, he can not complain of the transaction by which the husband secured to the separate use of his wife future acquisitions which would, in the absence of such a contract, be community property. Thus, though interest accruing upon the separate money of the wife is of the community, the husband, nevertheless, can so contract with the wife that such interest, except as to the existing creditors, shall be the separate property of the wife. Hall v. Hall, 52 Texas, 294; Martin Brown Co. v. Perrill, 77 Texas, 204.

4. We are of opinion that the court was justified in concluding that the appellant and his vendor should be held to be affected at the time of their purchase with notice of the conveyance by James A. Eeed to his wife. The description of the land, though defective and incorrect as to the certificate number, as already pointed out, was, inasmuch as it indicated the correct section and name of the survey, and inasmuch as the deed was duly recorded, sufficient to put a prudent man upon inquiry with reference to the scope and character of the instrument and of the property thereby conveyed.

The judgment is affirmed.

Affirmed.

Delivered February 16, 1893

A motion for rehearing was overruled.