Miller v. Miller

On Further Motion for Rehearing.

It is undoubtedly true that if a tract of land is partitioned -between several parties owning an undivided interest therein, derived from the same source of title, and title to the whole fails, then there is no warranty of title in favor of any of the parties to whom allotments are made as against an outstanding title superior to the title partitioned, since no consideration passes to any of the parties to the partition. But if title to only a portion of the property partitioned fails by reason of a superior outstanding title, then the party losing théreby is entitled to contribution from other parties to the partition, upon the theory of an implied warranty of title from them, since the .party losing has surrendered to the others a valuable consideration in his undivided interest in the remainder of the property, title to which is valid. That was the basis of the decision in James v. Adams, 64 Tex. 195, cited in our opinion on original hearing. The decision in Chace v. Gregg, 88 Tex. 552, 32 S. W. 520, and other decisions cited and stressed by appellee, are not in conflict with that decision. Indeed, in Chace v. Gregg, while it was held that the deed of partition therein discussed, containing a warranty of title, did not estop the warrantor from claiming under an after-acquired title, yet it was specifically pointed out that no valuable consideration had passed to the party against whom the estoppel was invoked, since the title partitioned was void in its entirety and no one received any benefits from the partition deed, and there was no other consideration passing to the warrantor.

In the present suit, it conclusively appears that the appellants paid a valuable consideration to the appellee William Gordon Miller, for the latter’s contract to partition the property in controversy between all parties after the mother’s death, and if the contract had been a deed of partition between the parties, executed after the mother’s death, then the decision in James v. Adams,' supra, would have-been applicable, as pointed out in our original opinion. That observation was made in answer to the point so insistently urged by the appellees that the contract between the parties was nothing more than a quitclaim deed from appellee which did not imply a warranty of title, and therefore did not estop William Gordon Miller from asserting the after-acquired legal title from his mother. However, as shown in the original opinion, we specifically held that the contract which was made the basis of appellants’ suit was not a present quitclaim deed nor a present deed of partition, but was a contract binding the defendant William Gordon Miller to a partition of the property between the several heirs in proportions therein stated, after their mother’s death, and was supported by a valuable consideration passing to the defendant. That contract, under the clearest principles of equity and fair dealing, operates as an estoppel against the defendant William Gordon Miller to assert the after-acquired legal title as against the plaintiffs, since the *1092assertion of such title was contrary to and in violation of the plain terms and the express purpose of the contract. Furthermore, the defendant asserted the same as a defense to plaintiffs’ suit without even tendering bach to plaintiffs the title which they conveyed to him in the remainder of the tract of land as a consideration for the contract. 21 C. J. 1110, 1111; 10 R. C. L. p. 799.

Decisions to the effect that a present quitclaim deed does not operate to pass a superi- or outstanding title thereafter acquired by the vender have no proper application to this case, since appellee’s contract to partition the property was essentially an agreement by him that upon the death of his mother he would convey to appellants the title he should then own in the portions of the property allotted to appellants, which necessarily included the legal title acquired from his mother, prior to the maturity of his obligation to partition. And since appellants had already paid to appeilee a valuable consideration for "his contract, an equitable title to all his interest in the portions of the property he agreed should pass to appellants became vested in them upon the death of their mother. Vardeman v. Lawson, 17 Tex. 11; 1 Pom. Eq. Jur. §§ 368 and 373.

Appellee’s motion for rehearing is overruled.