De Bajligethy v. Johnson

• Decision Date: 28 March 1900
• Citation: 56 S.W. 95
• Parties: DE BAJLIGETHY v. JOHNSON et al.
• Court: Texas Court of Appeals

56 S.W. 95

DE BAJLIGETHY v. JOHNSON et al.

Court of Civil Appeals of Texas.

March 28, 1900.

Appeal from district court, Harris county; William H. Wilson, Judge.

Action by Charley Johnson and another against C. N. A. De Bajligethy in trespass to try title to certain land. From a judgment for plaintiffs, defendant appeals. Affirmed.

T. H. Ridgeway, for appellant. G. W. Tharp and R. L. Whitehead, for appellees.

COLLARD, J.

Appellees, Charley and Jennie Johnson, sued appellant, C. N. A. De Bajligethy, in form of trespass to try title, for one acre of land in Harris county, described in the petition. Appellant answered by general demurrer and plea of not guilty. The case was tried without a jury, and judgment was rendered for plaintiffs for title and possession of the land, from which this appeal is taken.

We find the facts as follows: Burton Smith is the common source of title, and owned the land in his separate right. He was married to Sarah Green the 14th day of March, 1895, and was divorced from her by decree of court the 16th day of June, 1898. On the 18th day of March, 1895, Burton Smith, in company with his wife, Sarah, went to an attorney at law in Houston, and had him to draw up an instrument of writing, which he signed, conveying by him to Sarah, his wife, the land in suit, for the expressed consideration of five dollars and love and affection. The instrument concludes: "This deed is not to take effect until after my death." The instrument was duly acknowledged on the day of its date, was filed for record the 4th day of May, 1895, and duly recorded in the deed records of Harris county. It is witnessed by two witnesses,—J. H. Sherman and R. J. Thacker; the latter witness being the attorney who drew up the instrument. The testimony does not show that this instrument was delivered by the donor to the donee, but it was left with Thacker, the scrivener, at the time it was signed. Sarah came in a few days afterwards and obtained the instrument from Thacker, and it was recorded. June 16, 1898, after the divorce was granted, Sarah Smith conveyed the land in suit, by her deed, to C. N. A. De Bajligethy; the deed reciting a consideration of $45 paid, which was filed for record June 16, 1898, and duly recorded in the deed records of Harris county. On the 20th day of August, 1895, Burton Smith conveyed the same land in fee simple to Charley and Jennie Johnson, appellees, by his deed of that date, for the expressed consideration of love and affection. This deed was duly signed and acknowledged for record on the day of its date, and duly recorded in the deed records of Harris county. Shortly after this last deed was made to the Johnsons, Charley Johnson put one Burl Jackson on the land, and he remained there until he was dispossessed by De Bajligethy; Jackson being on the land when De Bajligethy bought it. The testimony does not show that the instrument made in favor of Sarah Smith was ever delivered to her by the donor. Burton Smith owned no other land before or after marriage. Burton Smith testified (and we find his testimony is true) that he could not read and write, and that, "as soon as Sarah Smith and I were married, she began to get after me about making my will in her favor. She was afraid I would die and my land would go to my stepchildren. She continued to ask me to make my will in her favor. So, about three or four days after we were married, I consented to do so. We went to Thacker's office, and I told him I wanted him to make my will in Sarah's favor, and Mr. Thacker made this paper. I cannot read nor write, but I believe this is the paper [referring to the instrument in favor of Sarah]. We left the will at Mr. Thacker's office, and I was to bring my children down to act as witnesses to it the next day. When we went back next day, I could not find Mr. Thacker. We waited a long time at his office, but could not see him. I went to his office two or three days after this, and asked him for the will. He told me Sarah had already taken it away. Then I was put on the county road and Sarah got all my deeds. I did not pay Thacker anything for making the will. Sarah paid him. * * * When I told Thacker I wanted to will my land to Sarah, I meant I wanted her to have it after I was dead, if she was a good wife; but, if she was not, I wanted her not to have the land. She was not a good wife. She left me. * * * The paper I made to Charley Johnson was a deed, I reckon. That is what I wanted it to be. * * * After she got the paper from Thacker, she had me out on the county road, and never lived with me after that." Charley Johnson testified (and we find his testimony to be true, and state the same as findings of fact) as follows: "Burton Smith and Sarah Smith only lived together as man and wife a short time. She worked and lived in Houston. Sometimes she would go out to the land in controversy at nights. Sarah Smith made complaint against old Burton Smith, and had him placed on the county road, where he was for some time. After he served his time he came to my house, and has lived with me ever since." Smith was on the county road about six weeks, and it was about three weeks after his discharge that he executed the deed to the Johnsons.

The court below found and filed conclusions of fact...