Black v. Boyer, (No. 839.)

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

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...