Boddeker v. Olschewske

• Decision Date: 03 June 1936
• Docket Number: No. 1987-6657.,1987-6657.
• Parties: BODDEKER et al. v. OLSCHEWSKE.
• Court: Texas Supreme Court

Page 730

94 S.W.2d 730

BODDEKER et al. v. OLSCHEWSKE.

No. 1987-6657.

Commission of Appeals of Texas, Section A.

June 3, 1936.

Error to Court of Civil Appeals of First Supreme Judicial District.

Action by J. L. Boddeker, as administrator of the estate of Fredericka Lohff, deceased, against William H. Olschewske and E. A. Calvin, in which defendants filed cross-actions. A judgment for defendant Olschewske on his cross-action was affirmed by the Court of Civil Appeals [62 S.W.(2d) 574], and plaintiff and defendant Calvin bring error.

Judgments affirmed.

Thornton & Markwell and Russel H. Markwell, all of Galveston, W. F. Carothers, of Houston, and Theodore Stubbs, of Galveston, for plaintiffs in error.

Stewart & De Lange and Albert J. De Lange, all of Houston, for defendant in error.

HICKMAN, Commissioner.

The case is fully stated in the opinion of the Court of Civil Appeals reported under the style of Calvin v. Olschewske, 62 S.W. (2d) 574, 578. As the case is presented to this court, it is thought that the following statement is sufficient.

This is an action of trespass to try title and to remove cloud from title to 12 acres of land in Harris county brought by plaintiff in error Boddeker, as administrator of the estate of Fredericka Lohff, deceased, against Wm. H. Olschewske and E. A. Calvin. The land was conveyed by Mrs. Lohff to Olschewske by general warranty deed, dated July 18, 1907. The consideration for the conveyence was recited as $500 cash and a promissory note for the sum of $750, due two years after date, to secure the payment of which a vendor's lien was expressly reserved. It was alleged by the administrator that at the time of the execution of the deed Mrs. Lohff was of unsound mind and did not have the capacity to contract. On April 22, 1912, Mrs. Lohff executed a power of attorney to W. W. Holland, and on the following day Holland, assuming to act for Mrs. Lohff under the powers contained in the instrument appointing him attorney in fact, executed a general warranty deed to the same land to E. A. Calvin. Both Olschewske and Calvin filed cross-actions in the trial court; the former claiming under his deed and seeking to remove the cloud cast upon his title by the conveyance to Calvin, and the latter claiming title through a source adverse to that of the administrator and Olschewske, as well as under the deed from Holland, as attorney in fact, and further claiming title by both the five and ten years statutes of limitation. In the trial court Olschewske recovered on his cross-action, and Calvin and the administrator filed separate appeals. The Court of Civil Appeals affirmed the judgment of the trial court, and separate applications for writs of error were filed by these parties.

It is represented here, as it was in the Court of Civil Appeals, that the administrator and Calvin have made some kind of an agreement between themselves whereby they are to share equally the fruits of the victory of either, but that agreement does not affect the case as presented here for decision. We must decide it, as did the Court of Civil Appeals, upon the record made by the pleadings, evidence, and verdict in the trial court.

By the answers of the jury to the three special issues submitted, the following facts were determined: First, Mrs. Fredericka Lohff was not of unsound mind when she executed the deed of conveyance to Olschewske on July 18, 1907; second, Calvin did not, through a tenant, have possession of the land for five years prior to the institution of this suit, claiming title thereto under a recorded deed and paying the taxes thereon without delinquency; and, third, that Calvin did not, by tenant, have peaceable, adverse, exclusive, and continuous possession of the land for a period of ten years prior to the institution of the suit.

These fact findings set at rest the question of the insanity of Mrs. Lohff as a ground for recovering the land from Olschewske, as well as the question of the limitation title of Calvin. With these questions eliminated, only one major question remains for decision, and that is whether Mrs. Lohff rescinded the sale of this land to Olschewske after the vendor's lien note became due and prior to the date when it was barred by limitation. This claim of rescission is based upon the conveyance by Holland, as attorney in fact, to Calvin on April 23, 1912. By the...