Allen v. Matthews
| Decision Date | 31 March 1948 |
| Docket Number | No. 9709.,9709. |
| Citation | 210 S.W.2d 849 |
| Parties | ALLEN v. MATTHEWS et al. |
| Court | Texas Court of Appeals |
Appeal from Ninety-Eighth District Court, Travis County; Chas. O. Betts, Judge.
Suit by Henry T. Matthews, Jr., and others against Walter Allen and another, to set aside a judgment. From a judgment for plaintiff, the named defendant appeals.
Affirmed.
Victor Gleckler, of Austin, for appellant.
George Cannon and Pat Legan, both of San Antonio, for appellees.
On August 17, 1933, Henry T. Matthews, by general warranty deed, conveyed to Walter Allen 639.35 acres of land in Hays and Travis Counties for a recited consideration of $10 and other good and valuable consideration in hand paid; and the assumption by Walter Allen of the payment of 15 vendor's lien notes against the said land. On the same date Walter Allen and wife, Helen Allen, by general warranty deed, conveyed to Henry T. Matthews 158 acres of land in Travis County, for a recited consideration of $10 and "other valuable considerations, for which no lien is retained expressed or implied, to us in hand paid by the grantee hereinafter named."
Henry T. Matthews died in San Antonio, Texas, March 30, 1935, leaving a will whereby he devised all his property to his three children: Mary Lee Matthews, Virginia Yancey Matthews, and Henry Thomas Matthews, and named his wife, Ida Mae Matthews, independent executrix. This will was probated in the probate court of Bexar County, and Mrs. Matthews qualified as independent executrix. Later, Mrs. Matthews resigned as such executrix, and the probate court appointed L. B. Ewing, administrator de bonis non with will annexed. Ewing qualified September 28, 1937, and served as such administrator until March 8, 1945, at which time his final account was approved and he and his bondsmen discharged.
On January 17, 1940, Walter Allen filed his petition in the 98th District Court of Travis County, in cause No. 62787, against "L. B. Ewing, Administrator de bonis non with will annexed of the estate of Henry T. Matthews, deceased." For cause of action Allen alleged Henry T. Matthews by his deed of August 17, 1933, agreed to warrant and defend the premises to plaintiff and to bear the expense of clearing the title to the land described in said deed, and to reimburse plaintiff for expenses incurred in clearing the title thereto; that he was forced to pay out more than $600 in defending the title, and because of the failure of the "defendant" to reimburse him he was forced to give up the premises and was deprived of the possession thereof by foreclosure of liens against the same. He further alleged that in 1935, in consideration of the time and expense that plaintiff, Allen, was forced to spend in the defense of the title to said land, Henry T. Matthews agreed to deed the 158-acre tract of land back to him; put plaintiff, Allen, in possession of said 158-acre tract, and agreed to immediately execute a deed conveying the same to him; that after plaintiff had taken possession of the land, but before any deed was executed, Henry T. Matthews died; and further alleged failure of consideration for the deed from Allen to Matthews to the 158-acre tract.
After service of citation on him, defendant, L. B. Ewing, administrator de bonis non, on November 21, 1940, filed his plea of privilege to be sued in Bexar County, and subject to said plea, filed his answer to the merits; plaintiff controverted the plea of privilege and a notation was made thereon setting same down for hearing January 4, 1941; an amended controverting affidavit was filed, and hearing on the plea of privilege and controverting affidavit set for February 15, 1941. The record shows no further proceeding on the plea of privilege and controverting affidavit.
On May 24, 1946, the court rendered judgment for plaintiff, Walter Allen, cancelling the deed of August 17, 1933, to the 158-acre tract of land; judgment against Henry T. Matthews; against the estate of Henry T. Matthews, deceased, and against the "administrator de bonis non with the will annexed of the estate of Henry T. Matthews, deceased," for the title and possession of said land. On the following day, May 25, the term of court, at which said judgment was rendered, expired.
On June 19, 1946, Henry T. Matthews, Jr., filed his petition in the 98th District Court of Travis County, against Walter Allen and wife, Helen Allen, seeking to set aside the judgment of May 24, 1946, rendered in cause No. 62787. He alleged he was one of the three children of Henry T. Matthews, deceased; was a devisee under his will, and owned an undivided 1/6 interest in the 158-acre tract of land, the subject matter of the suit in cause No. 62787; he alleged the judgment in said cause was obtained by fraud, accident or mistake, and that he had a meritorious defense. In addition to the facts hereinabove set out, plaintiff alleged the purpose of cause No. 62787 was to adjudicate title to the 158-acre tract of land, and the judgment in said cause is void because contrary to Art. 1982; specially denied the allegations of plaintiff, Allen's petition in said cause No. 62787; alleged he did not learn of the judgment in that cause until June 4, 1946; that said judgment casts a cloud on his title and affects his property rights; and alleged damages. He prayed he be granted a bill of review, that the judgment in cause No. 62787 be set aside, that judgment be entered that Walter Allen take nothing.
The surviving widow and two daughters of Henry T. Matthews, deceased, intervened, alleged their respective interest in the tract of land, and adopted the pleadings of Henry T. Matthews, Jr.
The defendant, Walter Allen, answered by general and special denials, pleaded the 3, 5, and 10-year statutes of limitation, Vernon's Ann.Civ.St. Arts. 5507, 5509, 5510; pleaded an oral transfer of the 158 acres of land by Henry T. Matthews; that he went into possession of the land under the oral agreement made in 1935, and has placed valuable improvements thereon, and prayed that plaintiff and...
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