McAllen v. Raphael
Decision Date | 13 June 1906 |
Citation | 96 S.W. 760 |
Parties | McALLEN et al. v. RAPHAEL et al.<SMALL><SUP>*</SUP></SMALL> |
Court | Texas Court of Appeals |
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.
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:
The reconveyance of May 30, 1867, after certain recitals, concludes as follows:
It was proved that John Young had died in 1859, and that his widow, Salome, qualified as the independent executrix of...
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Rowray v. Casper Mut. Building & Loan Ass'n., 1896
... ... 30; Currier v. Clark, (Ia.) 124 ... N.W. 622; First National Bank v. Glenn, 77 P. 623; ... Blaisdell v. Leach, (Calif.) 35 P. 1018; McAllen ... v. Raphael, (Texas) 96 S.W. 760. The rule applies even ... where it is claimed that the signature was forged ... Chivington v. Colorado ... ...
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