96 S.W. 760 (Tex.Civ.App. 1906), McAllen v. Raphael

Citation:96 S.W. 760
Opinion Judge:JAMES, C.J.
Party Name:McALLEN et al. v. RAPHAEL et al. [*]
Attorney:J. C. Sullivan, J. D. Childs and W. N. Parks, for appellants. Jas. B. Wells and Kleberg, Davidson & Neethe, for appellees.
Case Date:June 13, 1906
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas

Page 760

96 S.W. 760 (Tex.Civ.App. 1906)

McALLEN et al.


RAPHAEL et al. [*]

Court of Civil Appeals of Texas

June 13, 1906

Rehearing Denied Oct. 10, 1906.

Appeal from District Court, Cameron County; E. A. Stevens, Judge.

Action by Salome McAllen and others against G. M. Raphael and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Page 761

J. C. Sullivan, J. D. Childs and W. N. Parks, for appellants.

Jas. B. Wells and Kleberg, Davidson & Neethe, for appellees.


This is the second appeal in this litigation; a former judgment on demurrers having been reversed and the cause remanded. 11 Tex.Civ.App. 116, 32 S.W. 449.

On February 8, 1905, plaintiffs (appellants) filed their fourth amended original petition upon which the recent trial was had. It alleged the death of plaintiff Salome McAllen, and made the proper parties plaintiffs in her stead. It alleged that plaintiffs were, on January 1, 1893, owners in fee simple and in possession of an undivided interest of 12 leagues in the Las Mestenas grant, describing same; that on April 25, 1859, Mifflin Kenedy, the then owner of such interest, conveyed same to John Young, it constituting in fact all of said Kenedy's interest in the grant; that on September 3, 1885, said Mifflin Kenedy made a deed for same interest to his son Thomas Kenedy; that on January 1, 1893, plaintiffs were dispossessed by defendants; that the claim of defendants is based upon an instrument purporting to be an agreement to reconvey from John Young to Mifflin Kenedy, dated April 25, 1859, which instrument is charged by plaintiffs to be a forgery; that on May 30, 1867, Salome McAllen and her husband, John McAllen, were induced by certain false and fraudulent representations concerning the said writing, made by Mifflin Kenedy, through his agent and attorney, William G. Hale, to execute the instrument of reconveyance dated May 30, 1867, and without any consideration; that said Salome McAllen and John Young did not discover said fraud until on or about January 1, 1893, when this suit to set aside said reconveyance was promptly begun. The petition further set forth that on said date, May 30, 1867, the plaintiff John Young, Jr., was a minor and owned one-half of the property, and did not execute the same; that the reconveyance was an attempted conveyance of a trust estate by Salome McAllen and her husband, John McAllen, and purported to have been made by them as executor and executrix of the will of John Young, without any order of the probate court, and without any consideration, and not in the capacity of independent executor or executrix, nor individually, and it was for these reasons void and of no effect, the said John McAllen never having qualified as her coexecutor, and he had no authority to convey the land, or to join his wife in such conveyance; that as a conveyance of Salome McAllen's half interest in the land it had no effect because not acknowledged by her as required by law of married women for the conveyance of their separate estate, and it was void as a conveyance of her son's interest because there was no order of any probate court in reference thereto; that, if said instrument created a trust in John Young, it was barred by the statute of limitations of four years after his death; that said Salome had been his executrix for more than four years, and the reconveyance was void or voidable because it purports to have been executed by them as executrix and coexecutor of John Young, and, more than four years having elapsed since her qualification as executrix, it was their duty to assert the statute against such trust, and their act could not bind the estate under such circumstances, etc. This reference to plaintiffs' pleading is all that is deemed necessary to give the nature of the case. To parts of the pleading exceptions seem to have been sustained. The defendant Fant disclaimed, and appellees filed their third amended original answer and a fourth supplemental answer, which contained a general denial, a plea of not guilty, and other matters which we deem it unnecessary to set forth here. After the evidence was introduced the court instructed the jury to find for the defendants.

The instrument to which this controversy relates appears as follows:

"Whereas, on this 25th day of April, 1859, Mifflin Kenedy, by deed in fee, in consideration of one thousand five hundred dollars expressed as a consideration, has conveyed to the undersigned John Young all the right, title and claim and interest which he, said Mifflin Kenedy, had in and to twelve leagues of land situated, lying and being in the county of Cameron and state of Texas, being part and parcel of a tract or parcel of land granted by the proper officers of the crown of Spain in America on the 19th day of April, 1798, to Vicente Hinojosa, containing thirty-four leagues of land for large stock, one league for smaller stock, eight caballerias, and two hundred and seventy-two thousand six hundred and twenty-two

Page 762

square varas, be the same more or less, all which will more fully and at large appear by reference to said deed; and whereas, said conveyance was made to save costs to enable the said John Young to commence and prosecute all such suits in his own name which may be necessary to settle the title to and recover the said twelve leagues of land from those who are in possession or who claim title to the same, and said Young has employed counsel, and with consent of said Kenedy has as a fee agreed to convey to said counsel one-fourth of all the land recovered, or as to which said title is settled: Now, in consideration of the premises, said Young agrees, when said litigation is ended, or when said Kenedy may require, to reconvey to him all the said land so conveyed, except that agreed to be conveyed as a fee as aforesaid; the said Kenedy accounting with and paying to said Young his proper proportion of all the legal fees, costs, and charges of the said litigation. In testimony whereof the said John Young hereto subscribes his name the day and the year first hereinbefore mentioned. John Young.

"Signed and delivered in presence of (the words 'one thousand five hundred' interlined before signed) J. Galvan, Rob Hughes, Israel B. Bigelow.

"The State of Texas, County of Cameron. Be it known that on this the 29th day of April, A. D. 1859, personally appeared before me, Jeremiah Galvan, a notary public in and for the county and state aforesaid, duly commissioned and sworn, John Young, to me well and personally known, who stated to me that he executed the foregoing instrument of writing and acknowledged the same to be his act and deed, for the consideration and purposes therein set forth and expressed. In testimony whereof, I have hereunto set my hand and seal of office this the 29th day of April, A. D. 1859. Jeremiah Galvan, Notary Public. [L. S.]

"The State of Texas, County of Cameron. The above and foregoing instrument of writing was filed for record May 25th, A. D. 1867, and recorded same day in Book A of Supplemental Records of Cameron County, Texas, on pages 472 and 473. To certify which, witness my hand and seal of office this 25th day of May, A. D. 1867. Wm. W. Davis, Dep. Clk. Co. Court, Cameron Co., Texas."

The reconveyance of May 30, 1867, after certain recitals, concludes as follows:

"Now, therefore, know all men by these presents, that we, Salome McAllen, executrix of the last will and testament of John Young, deceased, acting with her said husband, John McAllen, for the consideration of one dollar to us in hand paid, the receipt whereof is hereby confessed and acknowledged, and in further consideration of the foregoing recitals, do sell and convey unto the said Mifflin Kenedy, and to his heirs and assigns, all and singular the rights, interest and estate in and to the aforesaid twelve leagues of land, with its hereditaments and appurtenances, as conveyed by the said Kenedy to the said John Young in and by the said first herein recited conveyance, so as in all respects to vest in the said Kenedy, his heirs and assigns, the same estate as held by him in the said lands before the said first recited conveyance. To have and to hold all and singular the lands in question, with their hereditaments and appurtenances, unto the said Kenedy, his heirs and assigns, forever. In witness whereof, we do hereto set our hands this 30th day of May, A. D. 1867. Salome Balli de McAllen, Executrix of the Last Will of J. Young, Dec'd. John McAllen, Coexecutor with Salome McAllen of Last Will of John Young, Dec'd.

"The State of Texas, County of Cameron. Before me, the undersigned authority, personally appeared Salome Balli de McAllen, executrix of the last will of John Young, dec'd, and John McAllen, her husband and coexecutor with her of said will, both parties being to me personally and well known, and who signed the within instrument of writing in my presence and severally acknowledged to me that they had make and executed the same for the consideration, objects and purposes therein expressed and set forth; and the said Salome Balli McAllen, having been examined by me privily and apart from her said husband, after having the said instrument fully explained to her, declared that she had willingly signed, sealed and delivered the same, and that she wished not to retract it. To certify which, witness my hand and seal of office this sixth day of June, A. D. 1867. F. E. Starck, Clk. Co. Court, Cameron Co., Tex. [Seal.]

"The State of Texas, County of Cameron. The above and foregoing instrument of writing was filed for record June 6th, A. D. 1867, and recorded June 9th, A. D. 1867, in Book B, Supplemental Records of Real Estate of Cameron County, Texas, pages 1, 2, and 3. to certify which, witness my hand...

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