Black v. Boyer

• Decision Date: 24 October 1929
• Docket Number: (No. 839.)
• Citation: 21 S.W.2d 1094
• Parties: BLACK et al. v. BOYER et al.
• Court: Texas Court of Appeals

Page 1094

21 S.W.2d 1094

BLACK et al. v. BOYER et al.

(No. 839.)

Court of Civil Appeals of Texas. Waco.

October 24, 1929.

Rehearing Denied December 5, 1929.

Appeal from District Court, Coryell County; Joe H. Eidson, Judge.

Suit by Mrs. Lizzie Boyer and others against Mrs. Rhoda Black and others. Judgment for plaintiffs and defendants appeal. Reversed and remanded.

T. R. Mears, of Gatesville, for appellants.

McClellan & Cross, of Gatesville, for appellees.

BARCUS, J.

On October 14, 1924, W. J. Black and wife, Rhoda Black, borrowed from Mrs. Lizzie Boyer the sum of $850, for which they executed their note, payable three years after date, and to secure the payment thereof executed a deed of trust on 75 acres of land in Burnet county out of the Reese survey. The deed of trust stated that said 75 acres was not their homestead, but that their homestead adjoined the 75 acres and was out of the Caperon survey. On January 6, 1925, W. J. Black died. In December, 1927, Mrs. Boyer, joined by her husband, brought this suit against Mrs. Black and the eleven children of W. J. Black and Mrs. Rhoda Black to establish the amount due on the note, principal, interest, and attorney's fees, and to foreclose the deed of trust lien. Appellants admitted the execution of the note and deed of trust, but as a defense thereto alleged that at the time same were given W. J. Black was of unsound mind. They alleged further that said 75 acres was at said time, and had been for many years prior thereto, the homestead of W. J. Black and wife, Rhoda Black.

In answer to special issues submitted, the jury found that at the time the note and deed of trust were executed, W. J. Black was not of unsound mind. They further found that no part of the 75 acres of land described in the deed of trust was any part of the homestead of Rhoda Black and W. J. Black at the time of the execution of the deed of trust. Based on said findings, the court entered judgment for appellees, establishing the amount due on said note as $1,413.53, and foreclosed the deed of trust on the 75 acres and ordered same sold.

Appellants complain of the action of the trial court in refusing to permit them to offer in evidence the complaint, charge of the court, verdict of the jury, and judgment based thereon in an insanity trial which was had in Burnet county in November, 1924, some 40 days after the note in question had been given, which revealed that W. J. Black at said time had been adjudged of unsound mind. We overrule this contention. While our courts grant a wide latitude relative to introduction of testimony to parties seeking to establish the sanity or insanity of a person, it seems at least the weight of authority is against the admission in evidence of a judgment or conviction of insanity subsequent to the execution of papers sought to be canceled by reason of the party who executed same being insane at that time. Uecker v. Zuercher, 54 Tex. Civ. App. 289, 118 S. W. 149 (error refused); Rowan v. Hodges (Tex. Civ. App.) 175 S. W. 847. The trial court permitted the witnesses to testify fully and at length with reference to the insanity trial and the facts that were produced on said trial, and the fact that W. J. Black was at said time found to be insane.

The trial court instructed the jury that the homestead of a family not in a city or town shall consist of not more than 200 acres, which may be in one or more parcels if used for homestead purposes, and further charged the jury that the burden was on appellants, before they could hold any part of the 75 acres as their homestead, to show that they did not have as much as 200 acres in the tract designated as their homestead out of the Caperon survey. The record shows without dispute, as testified to by Mrs. Black, that she and her husband, W. J. Black, had been living in Burnet county on the same land for more than 40 years; that said land was all in one body, the house in which they lived, together with the barns, being on a public road, and part of the land being on the same side of the road with the house and barns, and part, including the 75 acres in controversy, being directly across the road in front of the house. She testified that about 30 acres of the 75 acres was in cultivation, the remainder being a pasture which joined and was connected with their other pasture land; that they had cultivated this land and had used the proceeds therefrom for all of these years in the support of their family; that they had raised a family of eleven children; that all of the property had been their homestead and used and occupied by them during all of these years, and that they were occupying same at the time the deed of trust was given; that the year the deed of trust was given they had hired a man to work the 75 acres, but that same was being worked for them...