Anderson v. Davidson

• Decision Date: 05 May 1955
• Docket Number: No. 12836,12836
• Citation: 279 S.W.2d 120
• Parties: Lee Arthur ANDERSON et ux., Appellants, v. Lola DAVIDSON et al., Appellees.
• Court: Texas Court of Appeals

Page 120

279 S.W.2d 120

Lee Arthur ANDERSON et ux., Appellants, v. Lola DAVIDSON et al., Appellees.

No. 12836.

Court of Civil Appeals of Texas, Galveston.

May 5, 1955.

Rehearing Denied May 26, 1955.

Walker F. Johnston and Pierce E. Holmes, Houston, for appellants.

Dyess, Dyess & Jennings and A. D. Dyess, Houston, for appellee.

HAMBLEN, Chief Justice.

This is a trespass to try title suit instituted by appellants against the appellees to recover title and possession of property in Harris County, Texas. Appellee, Lola Davidson, was sued both individually and as independent executrix of the will of Mary Armstrong Hunter, deceased. Both litigants claimed title under Mary Armstrong Hunter, who died in 1953. The appellants claimed as grantees in a deed from Mary Armstrong Hunter dated February 28, 1941. Appellee claimed title both in her capacity as independent executrix of the will of Mary Armstrong Hunter, and as devisee named in her last will and testament. A trial before the court without jury resulted in a judgment cancelling and annulling the deed under which appellants claimed to deraign title, and an adjudication of title favorable to appellees.

There appears to be no dispute between the litigants as to the material facts, which are substantially as follows: The property in controversy consisted of a lot in the City of Houston upon which was constructed a six-room dwelling house. Prior to February 28, 1941, title to this property was vested in Mary Armstrong Hunter, a widow, and occupied by her as her home. On the date mentioned, Mary Armstrong Hunter executed and delivered to appellants a general warranty deed purporting to convey the property to them for a recited consideration of $5, 'and for the further consideration that the said Lee Arthur Anderson and wife, Pauline Anderson, hereby assume, agree to pay off, and discharge all indebtedness against the property hereinafter described owing to Home Owners Loan Corporation, and to pay all taxes past due and which shall accrue against said property and they further agree to furnish grantor Many Armstrong Hunter, a room in the house of said property in which to live the rest of her natural life, or a room in some other residence, and agree to furnish the said Mary Armstrong Hunter food, clothing and medical treatment the rest of her natural life and at her death to pay for reasonable burial expenses for her, the said Mary Armstrong Hunter.'

Following the date of such deed, appellants appear to have paid all delinquent taxes upon the property, and to have made various repairs thereto. Mary Armstrong Hunter resided in a portion of the dwelling, and the remainder was occupied by tenants, from whom a rental of $7.50 per week was received. Appellants furnished food and clothing and other necessities to Mary Armstrong Hunter at a cost to them of about $20 per month, paid taxes when due upon the property, and made payments due upon the indebtedness held by Home Owners Loan Corporation. This state of affairs continued for a period of three years after February 28, 1941. At the end of such three year period, Mary Armstrong Hunter informed appellants that she was dissatisfied with the arrangement existing between them, and desired from that time on to look after her own affairs. Accordingly, appellants delivered over to Mary Armstrong Hunter all receipts for taxes, purchase payments, and repairs made upon the premises, and from that time until the death of Mary Armstrong Hunter in 1953, paid none of the items contracted for in the mentioned deed. Mary Armstrong Hunter continued to reside in the premises for the ensuing ten years of her life, and to collect any rents which might be due from tenants. During this period, she sought financial help from appellee, Lola Davidson, promising that if said appellee would provide such help, she would leave the property to appellee upon her death. In accordance with this understanding, appellees, for the benefit of Mary Armstrong Hunter, made various payments to defray taxes, insurance, mortgage indebtedness, living expenses and burial expenses, totalling in excess of $1,800.

This suit was instituted in the form of a statutory trespass to try title action. Appellees entered a plea of not guilty, and alternatively a plea of improvements in good faith. During the trial, appellees requested and were granted leave to file a trial amendment seeking cancellation of the deed to appellants for failure of consideration. Appellants requested and were...