Ann Berta Lodge, No. 42, I. O. O. F., v. Leverton

• Decision Date: 01 January 1874
• Citation: 42 Tex. 18
• Parties: ANN BERTA LODGE, NO. 42, I. O. O. F., v. MARTHA J. LEVERTON.
• Court: Texas Supreme Court

42 Tex. 18

ANN BERTA LODGE, NO. 42, I. O. O. F.,

v.MARTHA J. LEVERTON.

Supreme Court of Texas.

1874.

APPEAL from Anderson. Tried below before the Hon. A. J. Fowler.T. T. Gammage, for appellant.

Reagan, Greenwood & Gooch, for appellee.

MOORE, ASSOCIATE JUSTICE.

This suit was brought by Mrs. Martha J. Leverton, the appellee, against the appellants, in the usual form of an action of trespass to try title to an undivided half of lot No. 4, in block No. 17, in the town of Palestine, and also to have said lot partitioned between herself and the defendants, who were admitted to own the other undivided one half of the lot. The original answer of the defendants consists merely of a general demurrer and plea of not guilty.

During the progress of the case the defendants filed amended answers, in which they set up several special grounds of defense. All of them, however, were, on exceptions of the plaintiff, held insufficient, and as presenting no valid ground of defense to the plaintiff's action. But notwithstanding this ruling of the court, it appears from the bills of exceptions and statement of facts that all of these defenses were on the trial relied upon under the plea of not guilty. It is not therefore deemed important to give the action of the court upon the exceptions to the special answers of the defendants, and those upon the exceptions taken to the admissibility of evidence, and the instructions of the court to the jury given and refused, which present substantially the same points, a distinct and critical separate examination.

All of the grounds of defense presented by the answers of the defendants, or suggested by the rulings of the court on exceptions to evidence or otherwise during the trial, may be considered under one or the other of the following general propositions:

1st. The plaintiff failed to show title under which she should recover. 2d. Defendants themselves had the better title. 3d. Though defendants did not have the better title, they had equitable rights which they could assert in this action.

Under one or the other of these general divisions we will now consider and dispose of all the questions presented by the assignments of error, in respect to all the matters complained of prior to the return of the verdict, which it is deemed necessary to notice, except the refusal to grant the continuance asked by defendants after the commencement of the trial.

1. The supposed defects in the plaintiff's title are: 1st. The plaintiff's vendor being a married woman, and her husband not having joined in the conveyance, the power of attorney and deed under which she claims were inoperative and void. 2d. Want of mental capacity in plaintiff's vendor to convey. 3d. Failure in proof of the execution of muniments of title upon which plaintiff relied. 4th. The deed to plaintiff was without consideration.

The first of these grounds of defense was presented in defendants' first amended answer, and although not so fully and distinctly presented as it might have been, we see no good reason why the court should have sustained the exceptions to it. But no injury resulted to defendants from the ruling of the court. On the trial defendants were permitted to prove the facts alleged in the answer. They thereby got the full benefit of the answer. The legal effect which might have resulted from such facts was fully met and rebutted by evidence showing the abandonment of the plaintiff's vendor by her husband long prior to the execution of the deed to plaintiff. It is not now an open question in this court, that the wife, when forced by the action of her husband to assume and fulfill the duties of a feme sole, or the head of the family, may exercise the rights and privileges of such position. And the validity of her acts cannot be impeached, even by parties directly interested therein, much less can strangers be heard to call them in question. (Hays v. Wright, 10 Tex., 130;Fullerton v. Doyle, 18 Tex., 3.)

The answer alleging that plaintiff's vendor was non compos at the date of her power of attorney and deed, if otherwise sufficient, evidently did not come in time. It was not filed until after the parties had announced ready, and the court had acted upon the exceptions to the pleadings of the parties respectively as they then stood. The announcement of ready, when there are questions of law to be acted upon by the court, is never regarded as absolute and unconditional. It imports, however, that the parties are ready, unless the rulings of the court upon the pleadings require their amendment, and thereby a continuance by one or the other of the parties may become necessary. And although it is unquestionable that the party whose pleading is held defective is entitled to amend his pleading for the purpose of curing such defect, notwithstanding his previous announcement of readiness for trial, this only extends to curing by amendment his defective pleading previously filed, and does not authorize him, as a matter of right, to plead new and independent matter, though it is no doubt within the discretion of the court to permit him to do so. But this court will not review its action in rejecting a proffered amendment of this character, unless it clearly appears that wrong or injustice has been done thereby. If this was the ground upon which the court rejected the amended answer which we have been considering, there is nothing in the record to induce us to reverse its action. The defendants could also, we must infer, have gone into this question under the plea of not guilty, as they did as to the matter alleged in their first amended answer, if they had desired to do so.

On the trial the defendants objected to the reading in evidence of the power of attorney under which the deed to the plaintiff was made, upon the ground that the grantor was alive and within the jurisdiction of the court, and it could only by proved by producing the grantor in court. This is evidently no valid objection to proof of the execution of such an instrument, when its execution is sought to be established by proof of the genuineness of the signature of the grantor. That the grantor is living within the jurisdiction of the court certainly does not preclude proof of the execution of a deed by proof of the genuineness of his signature, if the evidence offered for this purpose is otherwise admissible. It was also objected that the questions addressed to the witnesses and his answers were not legal, and did not lay the proper predicate. The supposed illegality of the questions and answers and want of proper predicate is not indicated in the bill of exceptions or brief of counsel. The questions and answers seem precisely those which are usual and customary when the signature to an instrument is being proven. It is quite obvious, if the proper objection had been made, that the instrument should have been proven otherwise than it was, or it should have been excluded. But it is well settled that this court can only consider such objections as were made in the court below; and as neither of those which were made were well taken, we cannot say that the court erred in overruling them and permitting the instrument to go to the jury. If the proper objection had been made to it, for aught we can say, the execution of the power would have been shown in such manner as to authorize its going to the jury.

The defendants also sought to destroy the legal effect of the instrument by instructions to the jury, in the nature of objections to the sufficiency of the proof upon which it was admitted in evidence. This was evidently not the proper time and manner of depriving the plaintiff of the benefit of it as evidence in the case. The question of its admissibility was for the court and not the jury, and could only be made when the evidence was offered in liminc. It would have been gross injustice for the charge of the court to have, in effect, excluded it after it was too late to bring the evidence which would have warranted its admission.

Whether the plaintiff had, in fact, paid for the land the consideration mentioned in her deed, or any consideration whatever, in no way concerned the defendants. It is not controverted that the plaintiff was fully informed of defendants' claim to the land when she took her deed; therefore, whether she has paid the alleged purchase money or not, she holds subject to whatever equitable right defendants may have. If defendants have no title, whether the deed to the plaintiff was made with or without consideration is wholly immaterial to them.

2. Did the defendants show title, either legal or equitable, to the half interest in the lot sued for?

It is not pretended that the defendants held under a deed or other instrument of conveyance duly executed and delivered to them by the party, her agent or attorney, under whom they claim. Nor do they insist that they have any contract, agreement, or memorandum in writing for the sale of the undivided half of the lot in dispute, signed by the alleged vendor, or by any one by her thereunto lawfully authorized. But the sole ground upon which they base their claim of title is a verbal contract, so far executed, as they maintain, as to warrant a degree of specific performance by a court of equity.

This presents the most important inquiry in the case, and, indeed, the only one of serious difficulty. That the full extent and hearing of the question, and the precise point which we are called upon to decide, may be seen and clearly understood, it is necessary to consider and determine the facts or acts of part performance upon which defendants' claim to a specific performance depends. In doing this it is also to be borne in mind that the matter of defense presented by this branch of the case is in the nature of a confession and avoidance. And the facts relied upon in evidence, but for our blended system of law and equity, could only have been made available to the defendants by invoking the aid of...