Armstrong v. Burt

• Decision Date: 10 May 1911
• Citation: 138 S.W. 172
• Parties: ARMSTRONG v. BURT.
• Court: Texas Court of Appeals

138 S.W. 172

ARMSTRONG v. BURT.

Court of Civil Appeals of Texas. Austin.

May 10, 1911.

Appeal from District Court, Coke County; J. W. Timmins, Judge.

Action by R. S. Armstrong, executor, against L. E. Burt. Judgment for defendant, and plaintiff appeals. Affirmed.

Wright, Wynn & Bartholomew, for appellant. Snodgrass & Dibrell and W. C. Merchant, for appellee.

RICE, J.

During the lifetime of J. E. Armstrong, deceased, to wit, on March 21, 1907, he conveyed to appellee certain lots in the town of Robert Lee, upon which was erected a two-story hotel, and gave her on, to wit, March 28, 1907, a check for $2,270 on the San Angelo National Bank, which was afterwards paid to her by said bank. After his death appellant, as executor of his estate, brought this suit to set aside said deed and recover certain other real estate which it was alleged she had purchased with the money so given her by the deceased; and, in the alternative, to recover said money, if it appeared that said property was not purchased therewith. The suit was predicated upon two grounds: First, that at the time of the execution of said deed and check the deceased was an old man, in feeble health, incapacitated to attend to his own affairs, and was unduly influenced by appellee to convey said property and execute said check; and, second, that at the time of the execution and delivery of said deed and check to her he was of unsound mind.

Appellee answered by general and special exceptions, plea of not guilty, general denial and allegations of sanity of the said J. E. Armstrong. She further asserted that said deed was made for a good and valuable consideration and denied that any of the money which she received from the deceased had been invested in any property, as alleged by appellant; and further pleaded that the said Armstrong, on the 1st of July, 1907, by an instrument of writing of that date, ratified and confirmed the conveyance and gift of money he had previously made to her, with full knowledge of all the circumstances thereof; and likewise pleaded the statute of limitation of two years to that part of appellant's petition seeking a recovery against her for the conversion of said money.

There was a jury trial resulting in a verdict and judgment in favor of appellee, from which this appeal is prosecuted.

The first assignment challenges that part of the charge of the court which, in effect, told the jury that if they believed from a preponderance of the evidence that at the time J. E. Armstrong made the deed conveying the hotel property to Mrs. Burt, and at the time he gave her the check for the money he was insane, or that he was induced to make said deed and draw said check by undue influence exercised over him by Mrs. Burt, then they would return a verdict for the plaintiff for the recovery of said property and the amount of said check, on the ground that it was error to require the jury to find that Armstrong was insane on both said dates before the plaintiff was entitled to cancel the deed or recover the money. It is contended by the appellant that under the court's charge the jury could not find in favor of plaintiff for the amount of the check on the ground that Armstrong was insane at the time he signed it, and then find against plaintiff for the hotel property on the ground that he was sane at the time he made the deed; and, vice versa, could not find for the plaintiff for the hotel and against him on the check; but that the charge required the jury to believe that Armstrong was insane both at the time he executed the deed and at the time he gave the check before they could find for plaintiff for anything, notwithstanding they might believe that he was insane when he signed the check. This charge was not affirmative error. It was the law that before plaintiff could recover on either he would be required to show that his decedent was insane at the time he executed the deed and check. There was no request for a special charge to the effect that if he was sane when the deed was executed, but insane when the check was given, then it was their duty to return a verdict for plaintiff for the money and for the defendant as to the hotel; or that if he was insane at the time the deed was made, and sane at the time the check was given, then to find for the plaintiff as to the hotel, and in favor of the defendant for the money. The defect was one of omission only, and, in the absence of such a special charge it was not error. See Gulf, Colorado & Santa Fé Ry. Co. v. Hill, 95 Tex. 629, 69 S. W. 136; Ry. Co. v. Brown, 78 Tex. 402, 14 S. W. 698; Ry. Co. v. Wood, 69 Tex. 679, 7 S. W. 372. But, apart from this, no such issue was raised by the evidence. The deed is shown to have been made on the 21st of March, and the check was given on the 28th of March, within a week of each other; and while the evidence shows that he was at some times better than at others, there is nothing in the evidence showing, or tending to lead one to believe that he was insane at the one time and sane at the other. But, on the contrary, appellant himself, in another portion of his brief, asserts that the deceased was insane and unable to transact any business for a period of several months, embracing the entire month of March, 1907; for which reason also we think there was no error in the charge given.

The court, at the instance of appellee, charged the jury that the burden of proof was upon the plaintiff to show the...