I cannot agree with the opinion of the majority of the court in this case, and will make my own *Page 73 statement of it, instead of adopting that contained in the majority opinion.
The suit was instituted by the appellants, W. R. Jones, Terry Jones, Stella Jones Harris, joined by her husband, C. C. Harris, Lillie Jones Rulfs, joined by her husband, Tony Rulfs, Mabel Jones Ernest, joined by her husband, C. A. Ernest, Willie Jones Ponder, joined by her husband, J. O. Ponder, and Ruby Jones Clark, joined by her husband, C. Clark, minors by their next friend, Terry Jones, Alice Jones for herself and as next friend for her minor child, Fred Jones, against O. O. Harris and D. S. Harris and G. M. Sadler, who had, prior to filing plaintiffs' second amended original petition, on which the case was tried, intervened, to recover an undivided one-half interest in the S.W. 1/2 of section No. 6, certificate No. 183, Houston Texas Central Railway Company survey, Ft. Bend county, Tex., it being an undivided one-half interest in the land conveyed by Alex Vallet to W. J. Jones, as is of record manifest. Volume Z, p. 2, in Deed Records of Ft. Bend county, Tex. Plaintiffs, besides suing to recover title to and possession of the land, sued to recover damages in the sum of $5,000 for defendants' use and occupation of the land. The defendants pleaded not guilty and all the statutes of limitations prescribed in the Revised Statutes of this state, and improvements in good faith. By supplemental petition, all the plaintiffs I plead infancy and coverture. The case was tried before a jury, and after all the evidence was heard, the court peremptorily instructed a verdict for the defendants, and upon the verdict returned in obedience to the charge the judgment appealed from was entered.
The record discloses that the suit was originally instituted on October 4, 1905, and was dismissed under a rule for costs, October 29, 1906; and that on November 1, 1906, at the same term, the order of dismissal was set aside and the cause reinstated; that afterwards, on November 18, 1907, a judgment was rendered for plaintiffs, though not entered on the minutes of the court, and that a motion of plaintiffs to have such judgment entered nunc pro tune was denied on April 12, 1909, and such judgment was declared void, set aside upon agreement of the parties; and that this suit was pending when Sadler bought.
The evidence shows that W. J. Jones and Ara J. Jones, deceased, were married March 3, 1873, and that the plaintiffs, save those who are joined as parties pro forma with their wives and Alice and Fred Jones, wife and son of H. J. Jones, deceased, are the issue of their marriage, and that H. J. Jones, deceased, was also their son.
On December 15, 1892, Alex Vallet in due form made application to the Commissioner of the General Land Office to purchase, as an actual settler, the 640 acres survey, of which the land involved in this suit is a part, classed as dry agricultural land, at $2.50 per acre, and executed his writings obligatory to the state of Texas for $1,500, the purchase money, in accordance with law, which were accepted by the state, and the land was duly awarded to him on his application in accordance with the terms of his purchase.
On January 30, 1893, Alex Vallet by his deed of that date sold, conveyed and assigned to W. J. Jones the S.W. 1/2 of the section of land so purchased by him (Alex Vallet) from the state. In said instrument the grantor expressly made Jones his assignee so that patent could be issued by the state to him, his heirs or assigns provided that he, the said W. J. Jones, comply strictly with all the conditions and requirements in the legislative acts and amendments pertaining to the purchase and assignments of such lands, as an actual settler thereon. This instrument was duly acknowledged and filed for record in the office of the county clerk of Ft. Bend county on February 13, 1893.
After having purchased the 320 acres from Vallet, W. J. Jones, together with his wife, Ara J. Jones, and his children, plaintiffs in this suit, moved upon the land and made valuable improvements thereon. Such improvements consisted of fencing the land, breaking up a hundred acres of the same, building a house, digging a well, erecting a barn and planting trees, which approximated the value of $1,000, if the testimony of plaintiffs is to be believed. After he, with his family, moved on the land, W. J. Jones made his proof of three years' occupancy, paid the state of Texas, according to his best recollection, $500, paid interest to the state and taxes as they accrued. They lived for more than a year on the land as their homestead.
Ara J. Jones died October 21, 1894, leaving surviving her W. J. Jones, her husband, and all the children of their marriage named as plaintiffs in this case, and all were living when this suit was brought, except Horace J. Jones, whose surviving wife and son are parties plaintiff. The dates of their births and marriages are as follows: Horace Jones, born April 9, 1875; married Alice Jones; died September, 1897, leaving one child, Fred Jones, and a surviving widow, Alice Jones, who are his sole and only surviving heirs. Stella Jones, born October 21, 1877; married C. C. Harris September 25, 1904. W. R. Jones, born January 29, 1879. Terry Jones, born June 2, 1882. Lillie Jones, born January 29, 1884; married Tony Rulfs July 6, 1904. Mabel Jones, born February 8, 1886; married C. A. Ernest, March 6, 1904. Ruby Jones, born February 16, 1888; married Crawford Clark, October 2, 1905. Willie Jones, born December 31, 1891; married J. O. Ponder, November 11, 1908. W. J. Jones never qualified as survivor of the community nor took out letters of administration on the estate of his deceased wife, Ara J. Jones. *Page 74
On September 14, 1896, W. J. Jones executed and delivered to D. Braswell the following deed: "The State of Texas, County of Fort Bend. Know all men by these presents, that I, W. J. Jones of the County of Fort Bend, and State of Texas, for and in consideration of the sum of Fourteen Hundred Dollars to me in hand paid by D. Breeswell of Caldwell Co. of theCounty of and State of Texas, the receipt of which is hereby acknowledged, do by these bargain, sell, release and forever quit-claim unto the said D. Breeswell heirs and assigns all my right, title and interest in and unto that tract or parcel of land lying in the County of Fort Bend and State of Texas, described as follows, to-wit: — The South 220 acres of the S.W. 1/2 of Section 6, H. T C. R. R. Survey, Certificate 183, original Grantee Alex Vallett? It is expressly understood that two Vendor Lien notes of two hundred dollars each, 1st. due and payable one year after date and No. 2 due and payable two years from date with interest at eight per cent. per annum is retained in part payment for the above consideration. To have and to hold the said premises, together with all and singular the rights, privileges and appurtenances to the same in any manner belonging unto the said D. Breeswell, his heirs and assigns, so that neither myself, the Grantor herein, nor my heirs or 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 to any part thereof. Witness my hand this 14th day of September, A.D. 1896. W. J. Jones."
This deed was properly acknowledged, though the date of the notary's certificate does not appear thereto, and was filed for record in the office of the county clerk on September 20, 1896.
On October 28, 1896, D. Braswell made a quitclaim deed to W. J. Jones to 20 acres off the northwest of the south 220 acres of the southwest half of said section; the consideration expressed in the deed was $130 cash. On April 28, 1907, W. J. Jones for the expressed consideration of $630, the receipt of which was acknowledged, made a deed to B.R. Brown in which the habendum clause is as follows: "I remised, released and quitclaim and by these presents do for myself, my heirs, executors, and administrators remise, release and forever quitclaim and convey unto the said party of the second part (Brown) and to his heirs and assigns forever all my right, title, interest, estate, claim and demand both at law and in equity of, in and to all of a certain tract of land situated in Fort Bend County, Texas, known as part of section No. 6, Certificate No. 183 and described as follows: [Here follows a description of 120 acres of said survey.]" The tenendum clause in the deed is: "To have and to hold the above described premises unto the said B.R. Brown, his heirs and assigns so that neither I, the said W. J. Jones, or any person in my name and behalf shall or will hereafter claim or demand any right, title to the same or any part thereof, but they and every one of them shall by these presents be excluded and forever barred."
On January 19, 1898, B.R. Brown quitclaimed all his right, title, and interest in that land, which was remised, released and quitclaimed to him by Jones to R. T. Mulcahy. On December 11, 1902, R. T. Mulcahy quitclaimed to O. H. Harris, one of defendants, all his right, title, and interest in said 120 acres of the land.
On January 2, 1903, D. Braswell and his wife, Laura B., for the expressed consideration of $500 cash and four promissory notes, one for $221.11, and each of the other three for $221, payable respectively in one, two, three, and four years from date thereof with interest at the rate of 8 per cent. per annum, conveyed to D. S. Harris, another defendant, the 200 acres of the tract which W. J. Jones had conveyed to said Braswell. The habendum clause in this deed of conveyance is as follows: "Have bargained, sold, conveyed and quitclaimed and by these presents do bargain, sell and quitclaim unto the said D. S. Harris, all our, and each of our right, title, interest, estate, claim and demand in and to a certain tract or parcel of land," etc., describing the land; and the tenendum clause is: "To have and to hold, the above described premises to the said D. S. Harris and his heirs and assigns forever."
On January 12, 1907, D. S. Harris and O. O. Harris, by separate instruments, sold said tract of 200 and 120 acres to G. M. Sadler, and the state of Texas, in separate patents, patented the two tracts to him as assignee of Alexander Vallet, on March 21, 1907.
W. J. Jones, plaintiffs' father, testified that Braswell paid him $800 in money and $1,200 in cattle for the 200 acres he sold him; that Brown paid him for the 120 acres $650 in money and $100 in trade; that the reason why he sold his interest in the land was that, his wife having died, he decided to move to town where he could give his children an education; that he did not sell either tract to pay existing debts, and that when he sold he did not owe any man except Mr. Brown, whom he owed a small account which, to the best of his recollection, was less than $100, and that such debt did not in any way influence him to sell the land; that the 200 acres sold Braswell was worth $6,000, and the 120 acres sold Brown was worth about $15 per acre, the latter tract being unimproved; that he also owed Mr. Westendorf for funeral expenses when he sold to Braswell, which he had paid, though not from the proceeds of sale of the 200 acres sold to Braswell; that the only person he owed when he sold the 120 acres to Mr. Brown was Brown himself; that he owed the state of Texas at the time of the *Page 75 sales, respectively, $600 on the 200 acres, and $360 on the 120 acres; that he never paid for the land in full, but simply made proof of occupancy, and made a partial payment (in all, less than $500) and that the parties to whom he sold assumed the amount he owed the state.
D. Braswell testified that he knew Mrs. Jones was dead at the time he purchased and that she had children; that he did not know that Jones owed any debts; that Jones did not give any reasons for wanting to sell, but that he (witness) believed that he (Jones) said he was thinking about moving to Arkansas; that Jones did not say anything to him at all about his debts and that he (Braswell) never went to any of his creditors to ask anything about it.
B.R. Brown, to whom the deed for 120 acres was made, testified: That the amount W. J. Jones was indebted to him before he bought was about $600; that part of the debt was contracted before his wife's death and a part afterwards; that it seemed to him she had been dead a couple of years before he got a settlement; that about half of the debt was contracted before her death; that he could not say as to the dates the articles were purchased; that to his best recollection Jones' intention was there was to be a settlement of that debt and to get a little cash in addition; that he could not give anything definite as to how much Jones owed him; that he was satisfied that there was a cash consideration as well as store account; that he knew Jones' wife, Ara J. Jones, was dead, and that she died on that same place, the land in controversy, and left several minor children; that the amount he paid Jones was $630; that there was no examination of the title to the land, nor necessity therefor, when he bought it; that he knew the children of Mrs. Ara J. Jones were living at the time and that they had an interest in the land. In reply to the question, "Isn't it a fact that you only bought such interest as W. J. Jones owned?" he answered: "Well, there was nothing said about that, but I supposed it should have been in law."
These further questions were asked him: "What reason, if any, was mentioned by W. J. Jones for not giving you a warranty deed?" "Isn't it a fact that he told you he could not convey the right of his children, without going through the courts for that purpose?" to which he answered: "Well, the reason was that he couldn't give a warranty deed. Well, I couldn't say positively about that. * * * He gave me a quitclaim deed."
G. M. Sadler, the intervener, who, in plaintiffs' second amended original petition, was made a party defendant, testified that when he bought he knew the land had been in litigation, though he was not at all familiar with the suit; that when he asked his attorney about it, he said it had been in litigation but the title was all right; that his attorney also stated that there had been a suit pending for some time, suit against the land at one time, and that he did not know just how long it had been dismissed; that the reason he paid all the money at one time was to get a title and have the land clear, and that it was not done in order to cut plaintiffs out of the land.
This is deemed a sufficient statement of the case and of the evidence introduced to determine the question whether the trial court erred in peremptorily instructing the jury to return a verdict for the defendants, as is complained of in the first assignment of error.
It is too well settled to require a citation of authorities that, when the evidence raises an issue of fact upon which the rights of the parties to the suit depend, it is error to withdraw such issue from the jury by a peremptory instruction to return a verdict in favor of either party. If, then, there were such an issue of fact developed upon the trial of this case, the court's charge was erroneous, and the judgment should be reversed for that reason.
It cannot, in view of the undisputed evidence, be questioned that under the law of this state when the land was purchased by W. J. Jones from Alex Vallet it became the community property of himself and wife, Ara J. Jones, the mother of plaintiffs (Creamer v. Briscoe, 101 Tex. 490,109 S.W. 911, 17 L.R.A. [N. S.] 154, 130 Am. St. Rep. 869); nor can it be denied that upon her death, which occurred on October 12, 1894, her community interest of an undivided half of the property descended to and vested in her children.
Putting aside, for the present, the fact that the property, to the extent of at least 200 acres, was the homestead of W. J. Jones and his family, it will be assumed that the mother's half interest in the land descended to her children charged with its pro rata share of the community indebtedness, for the purpose of determining whether it appears as a matter of law that the interest in the land inherited by plaintiffs from their mother was conveyed by their father in the deeds made by him to D. Braswell and B.R. Brown above referred to; and if conveyed, whether the conveyance was made for the purpose of applying any of the proceeds of sale of their interest to the payment of the community indebtedness. Unless such interest was so conveyed, the title to such inheritance is still in plaintiffs, if not extinguished by the statute of limitations; and, as their father had no power to sell their interest except for the purpose of discharging the community indebtedness, if not conveyed for that purpose, they still have such interest. The effect of the deed of W. J. Jones to Braswell will be first considered.
This deed, while not in the strictest form of a quitclaim, shows that Jones only sold, *Page 76 released, and quitclaimed to Braswell all his right, title, and interest in the 200 acres. Ordinarily, when there is no mistake, fraud, or ambiguity in a written instrument (and none is either alleged or proved as to this one) it cannot be extended by construction beyond what is written within its four corners; for the clear meaning of the language appearing upon the face of the instrument must determine its character, effect, and operation. This principle of construction applies as well to deeds as all other writings in which the parties have registered their contract or agreement. It is "sealed," and the seal cannot be broken so as to open the instrument to any other construction, unless fraud or mistake — which no seal can sanctify nor perpetuate — be alleged or proved.
But language used in some of the opinions of the Supreme Court of this state has been taken to mean that, whenever it is claimed that an instrument is a quitclaim deed, either in form or effect, extraneous evidence may be looked to to determine the real intention of the parties. An examination of all the cases, where extraneous evidence has been admitted for that purpose, will show that the question of fraud or mistake in drafting the instrument, or some ambiguity as to its meaning, has been presented; and, then, such evidence was considered only for the purpose of determining the real intention of the parties. No such question is presented in this case by the pleadings or evidence introduced by any of the parties. If, however, there were such a question, it would be of fact for the jury to determine; and hence, error for the court to withhold it from their consideration by peremptorily instructing a verdict for the defendants, as was done in this case. But the evidence of both the grantor and grantee, introduced in this case, shows that such instrument is just what its plain language imports — a quitclaim deed. The extent of its operation was to pass all the estate Jones could convey by a deed of bargain and sale. And as he only had a right, title, and interest in an undivided half of the land, his deed only operated, as is shown by its face, to convey such right, title, claim, and interest. Hence the right, title, claim and interest to his deceased wife's heirs to the other half remained in them unaffected by such deed.
The deed from W. A. Jones to B.R. Brown is a quitclaim in the strictest sense of the term. The parol evidence introduced tended in no way to affect its character or operation as such. Hence, like the one to Braswell, it did not affect the other half interest inherited by plaintiffs from their mother, but their right, title, and interest in the same remained just as it was before said instrument was executed. Since it appears from these two deeds that Jones' only title, claim, and interest in the land was an undivided one-half and that he only conveyed such half, there is no such question as to whether he sold the plaintiffs' interest along with his to pay community debts. If he sold his own interest for that purpose, which is not shown by the evidence, such sale could not affect the interest plaintiffs inherited from his mother.
But let it be assumed for the purposes of this case that he did sell all the land in both tracts, the sale including the interest inherited by the plaintiffs from their mother. Under that assumption the sale as to their half interest would be void — the grantees each having notice of plaintiffs' interest at the time of their purchase — unless such sale was made for the purpose of paying debts of the community. Before a sale can be made to pay community indebtedness such debts must exist against the community estate. There was no debt due from the community to the state of Texas when these sales were made. The purchase money would not be due the state for many years afterwards, nor would it be due now according to the terms of the sale. For this reason, it should not be considered as such a debt as would authorize the survivor of the community to sell the property of the estate to pay, as seems to be the holding of the majority of the court. So the unpaid purchase money, which was assumed by the vendees, should not be taken into consideration in determining the question as to whether Jones sold the land for the purpose of paying community debts.
When plaintiffs' father sold the 200 acres to Braswell, according to the undisputed testimony, it is clear that the payment of community debts with the proceeds of the sale was not contemplated by either party to the transaction. It is equally apparent from the evidence that, while a small indebtedness existed against the community, which was afterwards paid, none of the proceeds of such sale was appropriated to its payment. Besides, as this 200-acre tract was the homestead of the family at the time of Mrs. Jones' death, and not subject to the debts of the community, it may be doubted whether the survivor would be warranted under the law in depriving the deceased's children of their interest by selling it to pay community debts.
It is not clear that any of the consideration taken by Jones from Brown "in trade" was for debts contracted for merchandise purchased prior to Mrs. Jones' death; at least, the state of the evidence on this question is such as would make it a matter of fact for the jury to determine. If the views of the law thus expressed are correct, it logically follows that the majority opinion is wrong in principle and the judgment should not be affirmed.
What is thus far said is in some measure predicated upon the hypothesis that the opinion of the Supreme Court in Creamer v. Briscoe, 101 Tex. 490,109 S.W. 911, 17 L.R.A. (N.S.) 154, 130 Am. St. Rep. 869, is to some extent applicable to this case. I *Page 77 am satisfied the opinion correctly decides the question involved; and that to some extent it is applicable to the question presented here. In that case the claim to the land was based on the act of August 12, 1870, which contained the following provision: "That every head of a family who has not a homestead, shall be entitled to one hundred and sixty acres of land out of any part of the public domain as a homestead, upon condition that he shall select, locate and occupy the same for three years, and pay the office fees on the same." The facts showed that all the steps necessary to secure the land had been taken before the first wife died except the occupancy of three years which had been commenced and only required to be completed to give title, the wife having died and the husband marrying again before the expiration of three years' occupancy necessary to acquire title, which, being completed, patent issued to the husband. The court held that the land was community property of the husband and the first wife, and that, as between her heirs and the heirs of the second wife, the latter had no interest. Though in this case, the land was sought to be acquired under a different act, the three-year occupancy required had been completed by Jones and his family, and the required proof thereof made, and everything essential to a patent, except paying the state purchase money, which was not due, had been done before Jones made the sales to Braswell and Brown. In the one case everything the law required to complete title, save occupancy for the requisite period, had been done when the first wife died; in the other case (the one at bar) everything the law required to complete title had been done when the wife died and the property sold, except payment of money to the state which was not due. As in the one case the husband had the right to complete his occupancy, which would vest title in the community estate of himself and deceased wife; so, in the other, the payment of the purchase money to the state when it become due would vest complete title in the community estate of Jones and his deceased wife The plaintiffs in this case had the right to complete their title by making the payment when it became due, and could not be deprived of it by a sale of their father of his community half and the obtaining of patent by an assignee of his vendees by paying the purchase money to the state before it became due.
The question is not whether W. J. Jones could have abandoned the land and forfeited his purchase from the state, but is whether, after his three years' occupancy had been completed and proof thereof made in accordance with the law, he conveyed anything more than his community half interest in the premises. He was not in arrears in the interest or anything due the state on the land; it was not essential for him to occupy the land a day longer for him to obtain the patent; but he could go where he pleased, and, either by paying the interest to the state and the principal of the purchase money as it became due, or by paying the entire purchase money to the state at any time, his three-year occupancy being proved, obtain a patent to the land, which would not divest these plaintiffs of their mother's community interest but, in connection with the other undisputed facts, would be evidence of their title as well as his own; the amount of his obligation to the state for the purchase money was only $780, with interest thereon payable annually at the rate of 6 per cent. per annum, the principal would not be due for 36 years when he sold to Braswell and Brown; the interest was paid up to the date of such sales, and the annual interest thereafter was only $46.80; and there was evidence to show that the property was worth at the time of said sales $15,000. Now, I fail to perceive that the debt was onerous as conceived by the majority of the court. What man, who has staggered under the burden of debt, would conceive a debt for $780, with the rate of interest at 6 per cent. per annum, which represented $15,000 worth of property, onerous? It seems to me that any man for such a consideration would jump at the chance of taking upon himself such an inconceivably onerous debt, and would find its yoke easy and the burden light.
The evidence does not tend to show that Jones was not amply able to pay the debt as it became due, nor that he made the sale to relieve himself of the burden of the debt. I cannot believe that the law will permit children of a deceased member of a community to be deprived of the interest of their deceased parent in property worth $15,000, by their father's selling all his right, title, and interest in it in discharge of a community debt of less than $1,000. Because a great law of nature has deprived these plaintiffs of their mother, the great law of man should not, by one of its fictions, deprive them of the property they inherited from her.
The defendant Sadler was charged with notice of the plaintiffs' interest in the land both by the quitclaim deeds in his chain of title and the pendency of the suit at the time of his purchase. Hence, he cannot be regarded as a purchaser in good faith, nor be entitled to the value of improvements made on the land upon the ground of good faith, nor claim that limitations ran against plaintiffs in his favor. Therefore, he holds the legal title of plaintiffs' one-half interest in the land in trust for them subject to his right to be reimbursed by them for the one-half of the purchase money and interest which he paid the state when it becomes due, if he has not already been reimbursed by the value of his use and occupation of the premises.
I think the judgment of the district court *Page 78 should be reversed, and that, if not rendered here for appellants, it should be remanded for a new trial in accordance with this opinion.