Aman v. Cox

• Decision Date: 10 July 1942
• Docket Number: No. 2280.,2280.
• Citation: 164 S.W.2d 744
• Parties: AMAN et al. v. COX et al.
• Court: Texas Court of Appeals

164 S.W.2d 744

AMAN et al. v. COX et al.

No. 2280.

Court of Civil Appeals of Texas. Eastland.

July 10, 1942.

Rehearing Denied September 25, 1942.

Appeal from District Court, Jones County; Owen Thomas, Judge.

Suit in trespass to try title to realty by Sam R. Cox, Jr., against John Aman and others, wherein defendants filed a cross-action against plaintiff and others. From a judgment in favor of plaintiff entered upon motion for judgment notwithstanding the verdict, defendants appeal.

Judgment reversed and cause remanded.

Davis Scarborough, of Abilene, for appellants.

Stinson, Hair, Brooks & Duke, of Abilene, for appellees.

GRISSOM, Justice.

Sam R. Cox, Jr., filed suit in trespass to try title to a tract of land of 156 acres against John Aman et al. Defendants answered, among other things, by a plea of not guilty, and filed a cross-action. C. B. Manly and wife, Urma Manly, in addition to the plaintiff Cox, were made defendants in cross-action. For convenience, Cox and the Manlys will be referred to as plaintiffs, and John Aman et al. as defendants.

Defendants are the heirs of Fannie Aman May, deceased, who was the second wife of John May, deceased. Defendants, in their cross-action, alleged the land was purchased by John May and his first wife, Mollie May, in 1907; that the purchase price was $3520, $2440 of which was paid in cash, and the unpaid balance was represented by 8 notes for $135 each, one note being payable annually thereafter for 8 years; that the land was used as the homestead of John and Mollie May until the death of Mollie in 1908; that Mollie May was survived by her husband, John May, and two sons and one daughter; "that the said two sons died in infancy, after the death of the said Mollie May and before either of said sons attained the age of six (6) years"; and that the daughter, Donnie Bell May, after the death of her mother and brothers "became vested with title to one-third (1/3) of the proportionate part of the land involved in this suit which was paid out at the time of the death of her said mother, such interest so inherited by the said daughter being a 61/264 part thereof." (Italics ours.) Defendants alleged that in 1913 John May married Fannie Aman, ancestor of the defendants, and said land was owned and used as their homestead until their deaths. That John May died October 3, 1929, and Fannie Aman May died November 23, 1929; that at the time of the deaths of John and Fannie Aman May, the purchase price for said land had been paid and consequently there was no reason for selling the homestead, and the title thereto vested in Donnie Bell May (the daughter of John and Mollie May), and defendants; that the Manlys acquired the interest of Donnie Bell May, and that Sam R. Cox, Jr., had no right, title or interest therein.

Defendants' second community (that of John and Fannie Aman May) paid a part of the purchase price of said land, and made improvements thereon from the funds of the second community. Defendants alleged they thereby acquired "a joint interest and equity" in said land, or an equitable lien thereon which they alleged "to be at least equal to a 2/5 part thereof", and that defendants were entitled to "an equitable division of said land in accordance with said contribution of their ancestor or to a foreclosure of their equitable lien for such contribution." (Italics ours.)

Jessie Aman (now Bullock) was one of the defendants. With reference to her defendants alleged "she occupied and fulfilled the status of, and was in truth in fact and in law, an adopted child of the said John May and at the time of his death became and was his heir whereby she succeeded to an undivided one-fourth interest in all the property owned by the said John May at the time of his death, he having left surviving him only one natural child namely, the said Donnie Bell Manly and this plaintiff as adopted child; that her said fractional interest in the land here in controversy is subject only to its pro rata part of the above mentioned obligation for contribution."

Defendants alleged that after deducting the interest of Donnie Bell acquired from her deceased mother and brothers, defendants were entitled to a settlement for the contribution made by their ancestor (Fannie Aman May), and that the balance of the land was owned one-fourth by Jessie Aman Bullock and three-fourths by C. B. Manly and wife, grantees of Donnie Bell, and the land should be so partitioned.

Defendants in their cross-action further alleged that the plaintiff Cox based his claim to title to the land, or an interest therein, on a deed executed by C. B. Manly, as administrator of the estate of John May, deceased; that the only property attempted to be administered on was the land involved in this case; that at the time of the death of John and Fannie May it was their homestead and there was then no part of the purchase price unpaid; that the homestead was not subject to the payment of ordinary debts; that no necessity existed for its sale, and that the title thereto upon the death of John and Fannie Aman May, vested in Donnie Bell May and defendants; that no administration could lawfully be had thereon; that the administration and administrator's deed were void and constituted a cloud upon defendants' title. Defendants also sought an accounting from C. B. Manly.

In the original answer of Sam R. Cox, Jr., to defendants' cross-action, by exception and special plea, Cox asserted defendants' claim to the land was not by virtue of a contract in writing signed by either John or Fannie May, or any person authorized to sign for them; that there was no agreement by the said Mays to convey said land to any of the defendants, apparently asserting the statute of frauds as a defense. Thereafter all of the plaintiffs (Sam R. Cox, Jr., and C. B. Manly and wife) filed an answer to defendants' cross-action which seems to omit the aforesaid allegations. In this answer it was asserted the Manlys owned a one half undivided interest in the land. Cox alleged he purchased the land from C. B. Manly, administrator of the estate of John May, deceased; that defendants knew Manly was administrator; knew of all the claims against John May's estate, and that a greater portion of the claims were for doctor bills and for the last sickness of Fannie May, and for taxes and "upkeep of the premises"; that plaintiffs then asserted no interest in the estate of John May, deceased. That defendants knew the premises were to be sold by the administrator for the payment of debts allowed by the administrator and approved by the probate court; that plaintiffs made no effort to "present their claims or rights until after said land had been sold by the administrator and purchased by Sam R. Cox, Jr. at the administrator's sale." That defendants knew the money paid by Cox in the purchase of the land from the administrator was to be used to pay the debts against the estate of John May, deceased, and that by the "acts and conduct of the plaintiffs in cross-action failing to set up any claims or rights as now set up in their cross-action, they are now estopped from setting up any right, title or interest in and to said lands * * *." Plaintiffs alleged the land was not the homestead of John May and his second wife at the time of their deaths; that it had been abandoned by the said Mays. Plaintiffs also pleaded the 2, 3, 4, 5, and 10 year statutes of limitation.

The cause was submitted to a jury on special issues in answer to which the jury found: (1) that John May intended at all times from the date he moved to Abilene until his death to move his family back to the farm and occupy it as his homestead. (2) That a part of the purchase price of the farm was paid "after marriage of John May to Fannie May, and prior to the death of John May." (3) That the amount of the purchase price of the land in question paid "after the marriage of John May to Fannie May" was $500. (4) That permanent improvements were made on the farm "after the marriage of John May to Fannie May and before the death of John May." (5) That the value of the permanent improvements when made was $750. (6) That the present value of the improvements made on the farm "after the marriage of John May to Fannie May and before the death of John May" is $500. (7) That when Jessie Aman (now Bullock) was living on the farm with John and Fannie May "John May promised Jessie Aman that if she would live with them, take care of them, and look after her mother and do the house work, she would inherit his part of the farm." (8) That Jessie Aman relied on said promise. (9) That Jessie Aman continued to live with John and Fannie May, look after them, and take care of her mother and do the house work.

After the return of the verdict defendants filed a motion for judgment "in accordance with the verdict of the jury and the uncontroverted evidence * * *." Plaintiffs filed a motion to set aside the answers of the jury and grant a new trial, and, subsequently, a motion for judgment notwithstanding the verdict, which, omitting its formal parts, was as follows: "Now come the defendants in cross-action and move the court to render judgment non obstante veredicto in favor of said defendants in cross-action." Plaintiffs' motion for judgment non obstante veredicto was granted, and judgment was rendered that Sam R. Cox, Jr., have and recover of defendants the land in question, and decreed that defendants take nothing by their cross-action against plaintiffs. Defendants have appealed.

The undisputed evidence shows the farm in question was purchased by John May while he was married to his first wife, Mollie, and that $2440 of the purchase price of $3520 was paid in cash at the time of the purchase in 1907; that the unpaid balance was represented by 8 notes for $135 each, one note payable each year thereafter; that the land was the homestead of John and Mollie May at the time of Mollie's death in 1908; that John and Mollie May had three...