O'Byrne v. Oak Park Trust and Sav. Bank, Oak Park, Ill.

• Decision Date: 15 January 1970
• Docket Number: No. 7089,7089
• Citation: 450 S.W.2d 411
• Parties: Sarah E. O'BYRNE et al., Appellants, v. OAK PARK TRUST & SAVINGS BANK, OAK PARK, ILLINOIS, Guardian of the Estate of Ellen V. Loeffler, Appellee.
• Court: Texas Court of Appeals

Page 411

450 S.W.2d 411

Sarah E. O'BYRNE et al., Appellants, v. OAK PARK TRUST & SAVINGS BANK, OAK PARK, ILLINOIS, Guardian

of the Estate of Ellen V. Loeffler, Appellee.

No. 7089.

Court of Civil Appeals of Texas,

Beaumont.

Jan. 15, 1970.

Rehearing Denied Jan. 29, 1970.

Orgain, Bell & Tucker, Beaumont, Simmons & Graves, Orange, for appellants.

Frank M. Adams, W. G. Walley, Jr., Beaumont, for appellee.

PARKER, Chief Justice.

The opinions of October 30, 1969, and December 11, 1969, are each withdrawn and this opinion is substituted in their place. The appeal is from a summary judgment entered in favor of American National Bank of Beaumont as 'Guardian of the Estate of Ellen V. Loeffler, N.C.M.,' it having been substituted for Oak Park Trust & Savings Bank, Oak Park, Illinois, guardian of the estate of Ellen V. Loeffler, a person of unsound mind. The guardian sought to set aside a deed from Ellen V. Loeffler to Robert J. Byrne, dated August 27, 1962, conveying 100 acres of land in Orange County, Texas, and to recover of and from the defendants the title to and possession of said 100 acres.

It was alleged that the defendants, together with plaintiff's ward, were the heirs of Robert J. Byrne, deceased, who died without leaving a will and upon whose estate no administration was pending in the State of Texas.

The summary judgment cancelled the deed; made final an interlocutory judgment against two defendants, Robert A. Dixon and Thomas Dixon; and plaintiff recovered title to the 100 acres. The parties will be referred to as they appeared in the trial court.

The petition sought cancellation of the deed upon two asserted grounds: (1) at the time of the execution of the deed, Byrne occupied a position of confidence and trust as the attorney at law, agent, and attorney-in-fact and brother of the grantor, and said instrument was executed without consideration, or alternatively for a wholly inadequate consideration; and (2) the grantor, at the time of the execution of the deed, was without mental capacity to understand the nature of the instrument and the consequences of her act in executing the same. The remainder of the pleading was in the form of a trespass to try title action. The defendants traversed the allegations of the petition and joined issue thereon.

The plaintiff moved for summary judgment asserting that there was no genuine issue as to any material fact, based upon the pleadings of the parties, the deposition of Rita Jagnow (Davis), the affidavits of Alvin H. Huth, J. R. Bowen, and Willard J. Hall, as well as certified copies of certain instruments attached to the motion.

I. Absence of Necessary Parties

From the affidavit of J. R. Bowen and exhibits attached thereto as parts of plaintiffs' motion for summary judgment, it appears that on December 11, 1962, Robert J. Byrne executed and delivered an easement for pipeline purposes on the 100 acre tract to Texas Gas Corporation for which it paid Robert J. Byrne $1,235.60 for the right-of-way and $2,471.20 for damages in connection with the right-of-way. According to the affidavit of William R. Langley, cashier of Oak Park Trust and Savings Bank, Oak Park, Illinois, such amounts of money were credited to the joint checking account of Ellen V. Loeffler and Robert J. Byrne on January 14, 1963, said account being numbered 525--906, with receipt executed by the Collection Department therefor. Such right-of-way being a part of the 100 acres, Texas Gas Corporation is a necessary and indispensable party to the suit. Texas Gas Corporation is vitally and directly concerned with the validity of the deed from Mrs. Loeffler to Byrne and would undoubtedly be affected by its cancellation. Royal Pet. Corp. v. McCallum, 134 Tex. 543, 552, 135 S.W.2d 958 (1940); Rule 39, Texas Rules of Civil Procedure.

The trial court could not undertake to cancel the deed from Loeffler to Byrne without having before it all of the parties affected by the proposed cancellation. Runck v. Gates, 14 S.W.2d 885 (San Antonio Tex.Civ.App., 1929, no writ). In Sharpe v. Landowners Oil Ass'n, 127 Tex. 147, 92 S.W.2d 435, 436 (1936) it was said:

'It is settled beyond all question in this state that in a suit to cancel a written instrument all persons whose rights, interests, or relations with or through the subject-matter of the suit will be affected by the cancellation are necessary parties. Business Men's Oil Co. v. Priddy (Tex.Com.App.) 250 S.W. 156; McKay v. Phillips (Tex.Civ.App.) 220 S.W. 176; State National Bank v. Lancaster (Tex.Civ.App.) 229 S.W. 883; Dial v. Martin (Tex.Civ.App.) 8 S.W.2d 241. The absence of a necessary party in a suit for cancellation is fundamental and jurisdictional to such extent that it must be considered by this court. It being apparent from the face of the record in this case that Stubblefield and wife are necessary parties to the suit, the trial court was not authorized to enter any judgment, and this court cannot render any judgment except to reverse and remand the case. Barmore v. Darragh (Tex.Civ.App.) 227 S.W. 522.'

See also, Petroleum Anchor Equipment, Inc. v. Tyra, 406 S.W.2d 891, 892 (Tex.Sup., 1966); Stubblefield v. State, 425 S.W.2d 699, 702 (Tyler Tex.Civ.App., 1968, error ref. n.r.e.).

All those entitled to the estate of Robert J. Byrne, deceased, and Texas Gas Corporation are necessary parties to plaintiff's suit to cancel the deed from Mrs. Loeffler to Byrne. The district court had no jurisdiction to cancel such deed without these necessary parties. This is jurisdictional and presents fundamental error without defendants raising this question by point of error. Miller v. Davis, 136 Tex. 299, 150 S.W.2d 973, 980, 136 A.L.R. 177 (1941).

II. Mental Capacity of the Ward to Execute the Deed

One of the grounds for cancellation of the deed from Mrs. Loeffler to Byrne was that she lacked mental capacity at the time of the execution of the deed.

It is not necessary to review the evidence in detail upon this point for two reasons: the 'deposition' of Rita Jagnow Davis was simply acknowledged, not supported by her affidavit; and even if we were to consider it as a deposition, the most it did was to raise a fact issue as to Mrs. Loeffler's mental capacity. This is so because we must also consider the affidavits filed by the defendant: namely, Mrs. Seefurth, the notary taking Mrs. Loeffler's acknowledgment upon the deed under attack, as well as Mrs. Loeffler's attending physician. These both averred that she was of sound mind. Thus, the conflicting affidavits simply raised a fact issue.

Mrs. Seefurth, the notary taking the acknowledgment on the deed, by affidavit said:

'On August 27, 1962, I witnessed the signature of Mrs. Ellen V. Loeffler to a deed from Mrs. Loeffler to Mr. Robert J. O'Byrne, in the office of Blackwell Real Estate and Insurance Company. Mrs. Loeffler signed the deed in my presence, with no aid from any other person. The only persons who I remember being present at the signing of the deed were Mrs. Loeffler, myself and Mrs. Loeffler's daughter, who I believe was Mrs. Rita Jagnow. At the time that Mrs. Loeffler signed the deed and I obtained her acknowledgement and notarized the instrument, I was of the opinion that it was her free and voluntary act, and that she was aware of the fact that she was signing a deed, and was not acting under delusion about what the instrument was. It was my opinion that she knew what she was doing, and that she signed the deed voluntarily. If I had not been of such opinion, I would not have notarized the deed.'

The opinion of Rita Jagnow Davis as to the mental capacity of Mrs. Loeffler did not establish her incapacity as a matter of law. Hood v. Texas Indemnity Ins. Co., 146 Tex. 522, 209 S.W.2d 345, 346 (1948).

The rule governing such matters is stated very concisely in Smith v. Collins, 390 S.W.2d 301, 302 (Waco Tex.Civ.App., 1965, no writ):

'Moreover, it is the duty of the court hearing the motion for summary judgment to determine if there are any issues of fact to be tried, and not to weigh the evidence or determine its credibility, and thus try the case on the affidavits. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929; Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557.'

Considering the so-called deposition of Mrs. Jagnow and the affidavit of Mrs. Seefurth, a fact issue was raised as to the mental capacity of Mrs. Loeffler at the time of the execution of the deed. It was, consequently, error for the court to enter judgment cancelling the deed for want of mental capacity. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 46--47 (Tex.Sup., 1965).

III. Evidence that the Deed was Executed Without Consideration, or Alternatively for Wholly Inadequate Consideration

The affidavit of the accountant, Huth, does not show as a matter of law that there was no consideration for the execution of the deed, or that it was not a deed of gift. The affidavit of J. R. Bowen is, at best, inconclusive and insufficient to establish fraud.

Plaintiff not only did not establish the consideration for the deed, but also failed to establish that the consideration was insufficient. Reliance upon the opinion evidence of the appraiser, Hall, as given in his affidavit, is misplaced in a summary judgment proceeding.

Hall expressed his opinion as to the value of the land at the time of the execution of the deed from Loeffler to Byrne. Opinion evidence does not establish a fact as a matter of law. In Hood v. Texas Indemnity Ins. Co., supra, Chief Justice Hickman said: 'That character of testimony is but evidentiary and is never binding upon the trier of facts. * * *' See also Bond v. Snow, 422 S.W.2d 842, 844 (Eastland Tex.Civ.App., 1967, error ref., n.r.e.) with its voluminous citation of cases and these concluding remarks: 'Opinion evidence is not of that conclusive character required for the rendition of a summary judgment. * * *' Hall's testimony, if received in a trial on the merits would not...