Branch v. Jean, 3415

• Decision Date: 16 January 1959
• Docket Number: No. 3415,3415
• Citation: 320 S.W.2d 427
• Parties: Edna BRANCH, Appellant, v. Donie H. JEAN, Appellee.
• Court: Texas Court of Appeals

Page 427

320 S.W.2d 427

Edna BRANCH, Appellant, v. Donie H. JEAN, Appellee.

No. 3415.

Court of Civil Appeals of Texas, Eastland.

Jan. 16, 1959.

Rehearing Denied Feb. 6, 1959.

Dell & Perry Barber, Colorado City, for appellant.

Scarborough, Black & Tarpley, Abilene, for appellee.

COLLINGS, Justice.

Donie H. Jean, individually and as independent executrix of the estate of her deceased husband, T. A. Jean, brought this suit against Edna Branch. Plaintiff sought to set aside two deeds dated September 17, 1955, from T. A. Jean to Edna Branch, who is the daughter of plaintiff and her deceased husband. As grounds for setting aside the deeds, it was alleged that T. A. Jean did not execute the deeds; that if he did execute the deeds, he was at the time unable to sign his name and was so sick of mind and body that he was incapable of understanding the nature and effect of any business transaction or the object of his affectio and was mentally incompetent.

The case was tried before a jury which found that T. A. Jean at the time he executed the two deeds did not have mental capacity sufficient to understand the nature and effect of his act in executing said instruments. Based upon the verdict, judgment was rendered setting aside the two deeds. Edna Branch has appealed.

We overrule appellant's point in which it is contended that a judgment entered on October 13, 1954, in cause number 8872 on the docket of the District Court of Jones County, styled T. A. Jean et ux. v. Edna Branch, is res judicata of the question of T. A. Jean's mental capacity to execute the two deeds dated September 17, 1955. The 1954 judgment is not shown in the record. A release of the judgment executed by T. A. Jean and his wife is in evidence. There is nothing to show that the judgment in that case considered or passed upon the question of T. A. Jean's mental capacity other than the fact that the suit appeared to be brought in his own name and not by a guardian or next friend. Even if it should be held that that judgment did in effect or by implication pass upon the question of T. A. Jean's mental capacity, it was almost a year prior to the execution of the two deeds and a judgment adjudicating him to be sane at that time was not res judicata on the question of his mental capacity at the time of the execution of the deeds.

We are also unable to agree with appellant's contention that Mrs. Jean has come into court with unclean hands and that she should be held to be estopped to contend that T. A. Jean was of unsound mind when the deeds were executed. In the first place appellant did not plead estoppel. In the next place appellant has not established by evidence and fact finding that she relied upon any representation of Mrs. Jean and as a result thereof has suffered loss or injury. 17 Tex.Jur. 146. The evidence does show that Mrs. Jean was instrumental or participated in securing the execution of other legal instruments by Mr. Jean within the period of a few months from the time he executed the deeds. She was instrumental in securing his execution of an oil and gas lease on May 30, 1955, and another during the year of 1956. On September 27, 1955, ten days after the execution of the deeds, Mrs. Jean joined T. A. Jean in the execution of a release of the $8,000 judgment against appellant. There is no showing, certainly no conclusive showing, that appellant ever changed her position for the worse or was damaged in any way because of a reliance upon any representation, by word or deed, on the part of Mrs. Jean. There is no showing that appellant paid more than a nominal consideration for the execution of the deeds, involving about 3,000 acres of land and which were not recorded by appellant until more than twenty months after their execution.

We overrule appellant's points complaining of the lack of evidence and the insufficiency of the evidence to support the finding that T. A. Jean did not have mental capacity to execute the two deeds, and that the finding that T. A. Jean did not have mental capacity to execute the two deeds was so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. The material consideration in this connection is T. A. Jean's mental capacity on September 17, 1955, the date he executed the two deeds in his opinion T. A. Jean was of unsound to support the finding that T. A. Jean did not have mental capacity to execute the deeds. A physician testified that in his opinion T. A. Jean was of unsound mind when he executed the deeds and for a considerable period of time prior thereto. He testified that T. A. Jean had arterio-sclerosis and a certain amount of mental deterioration when he began to treat him in 1950. He testified that as early as 1951 senility was showing; and that thereafter his mind continued to deteriorate. The doctor testified that T. A. Jean was what you would call 'punch drunk' from the time he broke his hip in 1952. Numerous other witnesses testified to facts which showed a change for the worse in T. A. Jean's physical and mental condition between 1953 and 1955. The evidence indicated that as far back as 1953 T. A. Jean could not sign his name without someone holding his hand; that in May of 1955 he had no movement of his arm at all and his hand had to be held to make his mark. There was evidence to the effect that he was nervoud and upset and laughed and...