The facts necessary to an understanding of the points involved in this case are as follows: "Andrew Lockridge and his wife, Anna Lockridge, on the 8th of February, A.D. 1866, executed and delivered the following deed, to-wit:
"The State of Texas, "Gonzales County.
"Know all men by these presents that we, Andrew Lockridge and Anna, his wife, both of the County of Gonzales, in the State of Texas, for and in consideration of the love and affection we bear to our two sons, Robert B. Lockridge and John T. Lockridge, of the aforesaid county and State, and the further sum of five dollars, to us in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have this day granted, bargained, sold and conveyed, and by these presents do hereby grant, bargain, sell and convey unto the said Robert B. and John T. Lockridge the following described tracts or parcels of land." The description of the land is omitted.
"To have and to hold the said six hundred and ninety (690) acres of *Page 237 land to the said Robert B. Lockridge and John T. Lockridge, together with all the improvements and buildings thereon, together with all the appurtenances and hereditaments and incidents in any wise belonging thereto; but upon the following terms and conditions, and none others — that is to say: The said Andrew Lockridge and the said Anna Lockridge, his wife, shall be seized of a life estate for and during their natural lives, and that of the survivor, in and to said hereby granted tracts or parcels of land and improvements, buildings, appurtenances and hereditaments and incidents in any wise belonging thereto, and the said Andrew Lockridge and Anna Lockridge, his wife, for and during their natural lives, and that of the survivor shall have free use and enjoyment, control and possession of said hereby granted tracts of land and improvements and appurtenances as aforesaid, and at the natural death of both said Andrew Lockridge and Anna Lockridge, his wife, their interest and estate in said tracts of land and improvements shall cease, end and determine, and all the right, title, interest and estate in and to said granted premises and improvements shall vest in the said Robert B. Lockridge and the said John T. Lockridge, their heirs and assigns, forever, in fee simple, in the following parts and proportions, and none others, to-wit: * * *
"The lands hereby donated and conveyed are with the further limitation, that if the said Robert B. Lockridge shall die without having disposed of his share and part of said lands by deed or will, and without issue or their descendants, living at the time of his death, then the estate here granted to him shall pass and vest in the issue and their descendants of the said John T. Lockridge, in default of which, then to all the children and the issue of such as may be dead of said Andrew and Anna Lockridge, share and share alike."
Andrew and Anna Lockridge died July 16, 1869. Robert B. and John T. Lockridge were sons of Andrew and Anna. Robert B. Lockridge was never married, and died in 1874, without issue or their descendants, and never disposed of the land in controversy by will or otherwise, except by making a deed of trust as hereafter stated. Thomas Lockridge, the plaintiff, the son of John T. Lockridge, was born July 16, 1869. John T. Lockridge had one other child, which died before the birth of plaintiff and left no issue. The plaintiff was, at the death of Robert B. Lockridge, and ever since, the only issue of the said John T. Lockridge.
December 14, 1872, Robert B. Lockridge executed and delivered to G.S. Walker a deed of trust on the land in controversy, to secure the payment of a note for $500 gold given by Robert B. Lockridge to Walker. After the death of Robert B. Lockridge, to-wit, on July 15, 1874, letters of administration were granted to John T. Lockridge on the estate of the said Robert B. In the inventory the land sued for was put down as the property of Robert B. Lockridge. In 1877 the County Court of Gonzales County ordered the sale of the said land by the administrator, at which Walker purchased, which sale was confirmed by the court. *Page 238
Thomas Lockridge instituted this suit against T.J. Marley and G.R. Marley and Edgar D. Bryan and Jessie L. Bryan, the latter being minors. The defendant McCommon was vouched in as warrantor.
Upon the trial the District Court gave judgment in favor of the plaintiff for the land, and against McCommon, on the warranty of his ancestor, G.S. Walker.
The Court of Civil Appeals reversed the judgment of the District Court and rendered judgment in favor of defendants.
The language of the deed from Andrew and Anna Lockridge to Robert B. Lockridge expresses the intention of the donors to be, that Robert B. should take a fee simple estate in the land, limited upon two conditions, (1) that if he should not dispose of the land during his life time by deed or will, and (2) should die leaving no issue nor their descendants living at his death, then his estate should terminate, and the issue of John T. Lockridge should be substituted and take the title in fee simple without limitation.
There is no room for construction of the instrument, and the only questions that arise are, (1) is the limitation over to the heirs of John T. Lockridge valid? (2) If so, did Robert B. in his lifetime dispose of the land according to the terms of the deed under which he held?
The plaintiff in error claimed that the conveyance from Andrew and Anna Lockridge to Robert B. Lockridge created in the latter an estate in fee simple upon conditional limitation. Of this class of estates it is said, "conditional limitations could not exist at common law. They arise only out of certain conveyances owing their existence to statutes, the effect of which is to dispense with livery of seizin." Minor's Institutes, 2 vol., p. 232.
Article 632, Revised Statutes (Article 1002 Paschal's Digest), reads as follows: "An estate of freehold or inheritance may be made, to commence, in futuro, by deed or conveyance, in like manner as by will." Livery of seizin, which at common law was necessary to the creation of a freehold estate, has never been required in this State. Horton v. Crawford, 10 Tex. 382; Whitehead v. Foley,28 Tex. 268.
"A conditional limitation is of a mixed nature, and partakes of a condition and of a limitation: as if an estate be limited to A. for life, provided that when C. returns from Rome it shall thenceforth remain to the use of B. in fee; it partakes of the nature of a condition, inasmuch as it defeats the estate previously limited; and is so far a limitation, and to be distinguished from a condition, that upon the contingency taking place the estate passes to the stranger without entry, contrary to the maxim of law, that a stranger cannot take advantage of a condition broken." (4 Kent, star page 128; 2 Minor's Institutes, p. 231.) The instrument under consideration contains all of the elements of a conditional limitation as thus defined and is valid unless it be rendered void by the insertion of the condition authorizing the disposition of the land by the donee. *Page 239
Defendants in error claim that the plaintiff should not recover, for two reasons:
(1) Because the deed from Andrew and Anna Lockridge to Robert B. conferred upon him the full power of disposing of the property, and thereby vested in him a fee simple title to the land.
(2) That if this be not true, then Robert B. Lockridge in his lifetime disposed of the land by deed, within the meaning of the language used in the deed under which he held, when he made a deed of trust upon the land in favor of G.S. Walker.
The conveyance under which Robert B. Lockridge held the property vested in him, in terms and legal effect, a fee simple title to the land, limited however upon the conditions before stated. The condition expressed in the language "without having disposed of his share and part of said land by deed or will" is not repugnant to the former part of the deed which granted the title to Robert B., and it does not restrict or in any way limit his power of control or disposition over the land. In fact, by the insertion of this condition his power of disposition is enlarged, and by the exercise of that power he might have cut off the estate which was to be substituted upon a failure to dispose of it and the failure of issue. Without this condition he would have had the power to sell such estate as he had, his vendee taking subject to the conditions and limitations under which he then held the title, but with this condition inserted his power was enlarged so as to include the power of absolute disposition. The insertion of this condition did not affect the estate granted to Robert B., and we can see no reason why it should be held to have in any manner affected the validity of the succeeding condition of failure of issue upon the happening of which there would be substituted an estate in fee simple in the issue of John T. Lockridge. If, however, it be granted that the former condition was repugnant to the estate vested in Robert B., then the repugnant condition would be invalid, and the instrument would be construed as if it had never been inserted. That condition being eliminated, the deed would vest the title in Robert B. Lockridge, limited upon the contingency of failure of issue and their descendants, upon the happening of which the title would vest in plaintiff.
The next question for examination is, was the making of the deed of trust by Robert B. Lockridge to Walker a disposition by "deed," according to the intent and meaning of the language used? The word "deed," as used in that instrument, is commonly understood to mean an instrument in writing, duly executed and delivered, conveying real estate, and does not include a mortgage. (Hellman v. Howard, 44 Cal. 100; 1 Dev., Deeds, sec. 5.) There is no reason why any other meaning should be attributed to the word as used, and we conclude that the parties intended that, in order to defeat the estate limited upon the conditions expressed, Robert B. must, in his lifetime, by deed or by will, dispose of the title to the property. Certainly, under our law, a deed of trust cannot be held to be a disposition of the title to land, for it is well established *Page 240 that such an instrument is only a security for the debt to secure which it is given, and confers no title upon the trustee or beneficiary. We think that there was no such disposition of this property by Robert B. Lockridge as was contemplated by the donors when they made the instrument under consideration.
The defendants in error claimed that, by the power to dispose of the property expressed or implied by the insertion of the condition relative thereto, Robert B. Lockridge was authorized to mortgage the land. It is unnecessary for us to discuss the question as to whether a power to "dispose of by deed" would authorize the execution of a mortgage, for we believe it to be true that Robert B. Lockridge had the right to make the deed of trust to Walker, independent of the clause in question, but that Walker took it subject to the defeat of the title of Robert B. by the happening of the conditions expressed in the conveyance under which the latter held, and the power of sale given by the deed of trust not having been executed by a sale of the land in the lifetime of Robert B. Lockridge, his title terminated upon his death, with no issue nor their descendants then living, and the title of the plaintiff was substituted; from which it follows that the sale of the land by the administrator of Robert B. Lockridge, in whose estate no title was left, conferred no right upon the purchaser, and therefore created no bar to the right of the plaintiff to recover the land in question. We express no opinion as to what effect a sale under the trust deed in the lifetime of R.B. Lockridge would have had upon the conditional limitation to the issue of John T. Lockridge.
In the record we find an agreed statement of facts in which is embraced this language: "The verdict of the jury is correct if the ruling of the lower court in construing the deed is correct." The other questions presented by defendant in error are waived by the agreement quoted and not considered by us.
The Court of Civil Appeals erred in reversing the judgment of the District Court and rendering judgment in favor of the appellant T. T McCommon. It is therefore ordered that the judgment of the Court of Civil Appeals be reversed and the judgment of the District Court be affirmed.
Judgment of Court of Civil Appeals reversed. Judgment of District Court affirmed.