Gardner v. Stell , 34 Tex. 561 ( 1871 )

Walker, J.

This was an action of trespass to try title, and for partition, brought by appellants as the guardians of John D., Mary D-, Jennette, and Sarah Moore. The plaintiffs claim title in their wards, as heirs at law of their mother, Mary Jane Moore, deceased, to an undivided one-half of the south half of a third cf -a league of land in Leon county, the headlight of James W. Doss, as tenants in common with the defendant, John D. Stell.

Josephus Moore, the father of these wards, had, by his first wife, three children, Martin H., Jesse C., and Martha- J. Moore. After the death of his first wife he married again, and by the .second marriage had four children, the wards of the plaintiffs.

In 1849, during the lifetime of his second wife, Mary Jane, he bargained for the land in question with one Wiley B. Wallace, and Wallace conveyed the same, by deed, to Moore’s wife, Mary Jane, and to Jesse 0., his son by his first marriage.

In 1850, Jesse 0. Moore died, leaving a’will, by which he devised to his brother Martin H. his (Jesse C.’s) portion of the land.

In 1852 Mary Jane died, leaving four children, the wards .of the plaintiffs.

In 1853 Josephus Moore died, leaving, surviving him, the four ■children of Mary Jane, and also Martin H. and Martha J., issue -of his first marriage.

In October, 1853, after the death of Josephus, Martin H. and Martha J. Moore (the said Martin H. acting for himself, and as administrator of the estate of his brother Jesse 0.) conveyed the land, by deed, to Jesse Duren.

In January, 1854, Martin H. Moore executed to Duren another deed to the same land.

The defendant Stell claims under Duren. The cause was tried in the court below at the Fall term, 1859; verdict and judgment were rendered for the defendants, and the plaintiffs appealed.

The judge below, in his charge, uses the following language: “ The jury are. instructed that the first question they will decide in this ease is, whether or not the deed executed by Martin EL Moore, separately, and Martin EL Moore and Martha J. Moore in connection, were intended to convey the land in controversy. If' they were so intended, they convey the entire interest in the land.”

This charge was, manifestly erroneous. The deed from Wallace to Mary Jane and Jesse C. Moore made them tenants in common in the land; and Jesse C., by his will, conveyed his interest cnly to his brother, Martin EL The interest of Mary Jane descended to her children, .and the court should so. have instructed the jury.

The legal effect' of a deed is. matter for the determination of the court; and where there is, no such ambiguity as would require parol explanations, the jury have nothing to do with the construction of deeds.

Ppon the supposition that the interest of Mary Jane Moore in the land in equity belonged to herself and her husband .Josephus, whatever interest he had would, at his, death, descend to his children, share and share alike; and the deed of Martin II. and, Martha J. would convey no more than their own interests, and the interests devised by Jesse C. to Martin H.

Upon a proper determination of the facts by the jury, the court will find no difficulty in applying the law of the case.

There .is some claim that the deed from Wallace to Mary Jane, and Jesse 0. Moore was made to defraud the creditors of Josephus. This is matter of fact to be determined by the jury, and, if found to be true, only those who were creditors of Josephus Moore can be allowed to take advantage of it.

The judgment of the district court is reversed and the cause-remanded, to be proceeded in in accordance with this opinion.

Reversed and remanded-