Boren v. Boren

• Decision Date: 28 January 1905
• Citation: 85 S.W. 48
• Parties: BOREN v. BOREN et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

85 S.W. 48

BOREN v. BOREN et al.^*

Court of Civil Appeals of Texas.

January 28, 1905.

Appeal from District Court, Ellis County; J. E. Dillard, Judge.

Action by T. P. Boren against J. S. Boren and others. From a judgment for defendants, plaintiff appeals. Affirmed.

See 68 S. W. 184.

W. S. Simkins, for appellant. D. F. Singleton, T. J. Cole, and Groce & Skinner, for appellees.

TALBOT, J.

This suit was instituted by appellant against appellees, J. S. Boren and others, on February 21, 1900, to cancel a deed executed by appellant and his wife and mother to J. S. Boren on the 29th day of June 1888, conveying about 819 acres of land, a part of the Jos. Boren headright league, situated in Ellis county, Tex., and for the recovery of said land so conveyed. The answer to plaintiff's petition contained a general demurrer and numerous special exceptions, which, besides matters not regarded important on this appeal, presented the defense of limitations, and that the facts alleged by way of excuse for the delay in bringing the action were insufficient to prevent the bar of the statute. The court overruled the general demurrer, but sustained the special exceptions; and, plaintiff declining to amend, the case was dismissed, and is now before us on appeal.

The petition abounds with charges of deception and fraud, upon which it is claimed the conveyance in question should be set aside, and is so voluminous that we shall attempt to give only so much thereof as is necessary to an understanding of this opinion.

It is alleged, in substance: That Joe Boren and his wife. Ann Boren, owned a league of land in Ellis county, upon which they lived, having established their homestead upon it. That he gave to some of his children, and sold, portions of the league, so that when he died, on December 4, 1880, he owned only 819 acres of the league. Plaintiff was 15 years of age when his father died, and was living with his parents, and continued to live with his mother, Ann Boren, until her death, July 8, 1899, and on the homestead until June 29, 1888, when a deed was executed by his mother to J. S. Boren, purporting to convey to him (J. S. Boren) the 819 acres. That this deed was signed also by him, but without any consideration, and his signature to the instrument was secured by false statements and the working of a fraudulent scheme by J. S. Boren, inducing him to sign it. That Joe Boren left a will, in which he bequeathed to his wife, Ann Boren, all the real estate, then consisting of 819 acres, and all the personal estate, to be held by her for her maintenance and support during her natural life, and for the education of appellant, and at her death the remainder to go to appellant. That his mother, Ann Boren, accepted under the will, which was duly probated by her as executrix. That she used the property for her maintenance and support, as provided under the will. And it is charged that J. S. Boren advised and directed the entire administration, and, up to his mother's death, exercised complete control over her; that his mother, by accepting under the will, waived her community interest; that J. S. Boren and his codefendants well knew these facts, and that his mother only conveyed to J. S. Boren a life estate, and that this life estate ended on the death of his mother, July 8, 1899, but that, if it should be held that Mrs. Ann Boren did not waive her community right, then appellant was entitled to an undivided one-half interest in the land under the will of his father; and, in this event, it is prayed that he recover the 400 acres remaining in the hands of J. S. Boren when the suit was brought, he having sold the balance of the 819 acres and converted the proceeds to his own use. That J. S. Boren took an active interest in the administration of his father's estate from the death of his father until the land was conveyed to him, in 1888, and exerted an influence over his mother until a few months before her death, in July, 1899. That in matters of business he had acquired a complete control over her, especially in reference to the estate. That, knowing his influence, he conceived the project of getting the land from her, and, with the intent to defraud his old mother and appellant out of the 819 acres, he began his scheme by prejudicing his mother against her other children, who lived in the neighborhood, by making her believe that the other children were after the property, and were going to poison her. That his mother was old, afflicted with disease, and an invalid all the time, and, while in this condition, with her mind and strength impaired. J. S. Boren falsely caused his mother to believe that her children were going to poison her and take away the land from her, and it could only be avoided by transferring the land to him, so that he could protect it. As a further inducement, he stated that he would borrow money on the land, and buy a farm for her away from her children, and out of the neighborhood, where she could live in peace. That these statements to his mother and petitioner were absolutely false, and made with intent to induce his mother and petitioner to execute the deed to him. That his mother believed the statements to be true, and consented to abandon the old homestead for another home, out of the neighborhood of her children, and, so induced, she did execute the deed to J. S. Boren. That plaintiff was utterly illiterate, and during all his youth, and up to his mother's death, his time was occupied in nursing and caring for his sick mother and working on the farm. That he was never charged with his mother's business about the estate matters, nor was he ever consulted in reference to the same. That he was never permitted to be present in the room when J. S. Boren and his mother discussed the estate matters. That his total ignorance of the estate and his right therein were known by J. S. Boren and his mother, and it was never intimated by J. S. Boren or his mother that he had any interest in his father's estate. That, on the contrary, it had been repeatedly stated to him by both J. S. Boren and his mother that he had no interest whatever therein; that his mother owned it all, and he was dependent on her for what he might receive from the estate; and he had grown up in this belief. That he was continually assured by J. S. Boren and his mother, up to her death, that he had no claim upon his father's estate. That the relation of J. S. Boren to himself created implicit confidence. That he had been controlling affairs since his father's death, and otherwise assisting his mother, and, under these conditions, through a series of years, both Mrs. Ann Boren and petitioner learned to rely and did rely with confidence on what he said and did. That petitioner relied also upon his mother's statements, who also stated that he had no interest in the estate of his father, and that he grew up under the belief that her repeated statements, as well as those of J. S. Boren, were true. That J. S. Boren designedly misled her and petitioner, well knowing at the time of the provisions of the will. That petitioner was further made to believe that the statements made to his mother and himself about the threats of the children to get hold of the property, and that they would poison his mother, were true. That all of J. S. Boren's statements were false, and made in pursuance of a scheme to rob his mother and petitioner. That after these false statements had produced the fear and apprehension intended, both on the part of his mother and petitioner, he proceeded to consummate his plan in the following manner: On the 28th day of June, 1888, J. S. Boren brought a notary to his mother's house, with the deed which he had written, or caused to be written, for his mother's signature. The deed purported to be a full warranty deed, conveying the 819 acres of the Boren land to J. S. Boren. That he caused his mother to sign it, and then he called petitioner and told him he had to sign the deed. He told petitioner that he did not see any use in it, and that it was only a matter of form, as he had no interest in the land, but the loan company required petitioner to sign, as he lived on the land with his mother, and the only way to get the money from the loan company, to buy his mother another farm, would be for him to sign it, so as to carry out his mother's wish. That he was told then what had been repeatedly stated to him before—that he had no interest in the land, and was conveying none. That, induced by these statements, and believing them to be true, and further believing that his signature was necessary to aid the said Boren to obtain a loan to carry out his purpose of procuring another home for his mother, he signed the instrument. That at the time the deed was signed it was not read to him, nor were the contents stated to him, and he did not know until 1899 what the consideration was. The petition then...