Opinion
No. 3983.
March 26, 1931.
Error from District Court, Grayson County; R. M. Carter, Judge.
Suit by K. D. Kidd against T. L. West and wife and William Davis. To review a judgment in favor of plaintiff, defendant Davis brings error.
Modified, and, as modified, affirmed.
On January 10, 1927, T. L. West and his wife, Sallie West, executed two notes for $2,000 each, payable to K. D. Kidd, and, to secure the payment of the same, executed a deed of trust upon two tracts of land, one containing 64 acres and the other containing 128 acres. On January 31, 1928, T. L. West and Sallie West executed a note for $1,400, payable to K. D. Kidd, and, to secure the payment of the same, executed a deed of trust upon a tract of land containing 100 acres. The two deeds of trust were each duly registered at the time of their execution. K. D. Kidd brought the present suit on these notes and to foreclose the lien on the deed of trust.
William Davis was made a party defendant upon the allegation that he "is asserting some character of claim to this property that is antagonistic to the interest of this plaintiff," etc.
The defendant William Davis answered and set up the ownership and possession of the tracts of land of 100 and 128 acres, respectively, under conveyance from Sallie West and T. L. West, and claimed rights thereto superior to the deed of trust. It is unnecessary to set out the pleadings of the defendants West and wife, as they do not appeal. The 64-acre tract is not involved in the appeal.
The alleged notes and deeds of trust were duly executed. William Davis is a brother of Mrs. Sallie West. He is a bachelor seventy-four years old. On December 28, 1921, Mrs. Sallie West, as the owner of the land, joined by her husband, executed a conveyance to William Davis conveying to him "during his lifetime only" a tract of 100 acres and a tract of 128 acres of land. This deed was not recorded until May 24, 1929, before the present suit was filed August 15, 1929. William Davis never rendered the land for taxes, nor paid taxes thereon. Mrs. Sallie West rendered the land for the taxes and paid the taxes thereon annually both before and since the deed to William Davis. Mrs. Sallie West testified:
"When I executed the deed to my brother, William Davis, he went on the land. He had something to do with the 100 acre tract, he put about twenty-five acres of it in cotton one year. * * * He used timber from the place for fires and such like as that. He was in charge of it. It was fenced. * * * He has lived On the 128 acre tract; that is the only one (tract) that he has lived on. My brother, William Davis, will be seventy-four years old this coming February; he has not lived anywhere since 1921 except on this land (the 128 acre tract). * * * At the time we borrowed the $4,000.00 I told Mr. Kidd that my brother was in possession of all the 100 acres and all of the 128 acres. * * * The sixty-four acres is one and one-half miles from the 100 acre tract, and the 128 acre tract is a mile and a quarter from the 100 acre tract."
T. L. West testified:
"Mr. Davis went on the land as soon as he got his deed and has been there even since, and he has been getting the crops from the land since then. * * * He has had tenants on the land, I think, on the 128 acre tract. I don't know about the 100 acre tract. He has been in possession of both tracts all the time. The house is on the 128 acre tract. * * * The 100 acres is a rough piece of land, and as far as farming is concerned, is of small value."
The above testimony constitutes the testimony respecting possession of the land so far as the evidence in behalf of plaintiff in error goes.
Mr. Kidd denied that Mrs. West had informed him that her brother was in possession of both tracts of land. His testimony, in effect, was that he did not go upon the land, or either tract, to see whether or not anybody was in possession, and did not make any inquiry as to who was on the land, and that he supposed that Mrs. West had both the title and possession in her. The abstract of title presented to Mr. Kidd did not show the conveyance to William Davis, and he supposed that Mrs. West, who held the record title, was still exercising dominion over all the land.
The court submitted to the jury issues as follows:
"1. Did the plaintiff, K. D. Kidd, at the time of making the loans in evidence have notice or knowledge of the claim of William Davis to the title and possession of the two tracts in evidence?" Answer of the Jury: "No."
"2. At the time of making the loans sued on, did the plaintiff exercise that degree of care that an ordinarily prudent and careful person would exercise under the same or similar circumstances to discover the real ownership and title of the lands in suit?" Answer of the Jury: "Yes."
"3. Did the plaintiff, K. D. Kidd at the time he took the mortgages sued on have any notice of the title asserted by William Davis?" Answer of the Jury: "No."
In keeping with the verdict of the jury, the court entered judgment foreclosing the deed of trust lien and decreeing that such lien was superior to any right or claim of William Davis.
Hamp P. Abney, of Sherman, for plaintiff in error.
Hare Batsell, of Sherman, for defendant in error.
The plaintiff in error insists that under the undisputed evidence the court should have given his requested peremptory instruction to the jury to return a verdict in his favor. The defendant in error answers the contention of the plaintiff in error, in substance, that the deed to William Davis was ineffective because of a condition appearing as a clause in the deed, and that the evidence was such as to authorize the submission of the issues and the findings of the jury. Upon a consideration of the whole instrument in evidence, it is apparent that Mrs. West clearly intended that William Davis should have "a life estate only" in the lands, with reservation for herself of all the rights to the property not expressly vested in said William Davis. In the light of all the recitals of the deed and giving effect to Mrs. West's intention, the word "and" in the condition appearing in the deed should be construed as a clerical error and the word "not" as intended to be used.
It is believed in the evidence that the possession of William Davis of the 128-acre tract was such as to put K. D. Kidd upon notice, but that the possession as to the 100-acre tract, distant some 1 1/4 miles from the 128-acre tract, was not of that character as to put Mr. Kidd upon notice. In this view, then, the plaintiff in error was not entitled to recover the judgment he did as to the 128-acre tract. He would be entitled to recover, though, as to the 100-acre tract. Mrs. West having an estate in the 128-acre tract, and having passed same to Mr. Kidd through way of mortgage with power of sale, Mr. Kidd as mortgagee would be entitled to have foreclosure of his lien against her interest and estate in the said tract of land and to have sale of her interest and estate, subject, however, to the life estate and the right of possession in virtue of such life estate of plaintiff in error, William Davis.
The judgment is therefore modified so as to decree in favor of K. D. Kidd foreclosure of the deed of trust lien and sale thereunder upon the 128-acre tract subject to the life estate and the right of possession of William Davis in and to the said 128-acre tract; otherwise the judgment of the district court will be in all things affirmed; costs of appeal to be taxed against the defendant in error, K. D. Kidd.