Cooper v. Lee

• Decision Date: 15 November 1889
• Citation: 12 S.W. 483
• Parties: COOPER <I>v.</I> LEE.
• Court: Texas Supreme Court

12 S.W. 483

COOPERv.

LEE.

Supreme Court of Texas.

November 15, 1889.

Appeal from district court, Harrison county; A. J. BOOTY, Judge.

M. R. Geer, A. Pope, and H. McKay, for appellant. T. P. Young, for appellee.

HENRY, J.

J. H. Lee instituted this suit against John T. Pierce, on the 4th day of February, 1887, to recover two tracts of land, — one designated in the proceedings as the "Smith Place," and lying in Harrison county, and the other as the "Tarrant County Land," and lying in Tarrant county. Plaintiff's pleadings, as finally amended, substantially charge that about the 2d day of March, 1882, plaintiff, desiring to purchase from the estate of Joshua Smith the "Smith Place," requested defendant to act as his agent in making the purchase, and placed in his hands a check on a bank in the city of Marshall, for the sum of about $800, with which to procure the funds to pay for the land, and that defendant, having procured the money with the check, paid it for the land, taking a deed for it in his own name, bearing date the 1st day of April, 1882, and subsequently duly recorded. The petition charges that this deed was taken by defendant to himself, with the understanding that he would afterwards convey the land to plaintiff; that plaintiff is the father-in-law of defendant, and lived in his house, as a member of his family, at the time the deed was executed, and up to the time of bringing this suit; that defendant is an attorney at law, and, as such, acted in this, as well as in many other matters, for the plaintiff; and on account of these confidential relations plaintiff reposed the utmost confidence in the defendant, and did not think he would refuse to convey the land to him, when he was requested to do so; but when he did request it, in the month of December, 1886, plaintiff refused. Plaintiff further charges that in the month of November, 1881, he was the owner of the "Tarrant County Land," and about that date defendant represented to him that it would be greatly for plaintiff's advantage for him to exchange said tract of land for another tract, or tracts, owned by defendant; and that plaintiff, influenced by said representations, and fully trusting the defendant on account of the confidential relations that existed between them, consented to the exchange, and executed, about said date, to defendant, a deed for said land; that the sole consideration for the sale and conveyance of said land was said other tracts of land which defendant pretended to own, and for which he at the same time executed to plaintiff a deed; that both deeds were prepared by defendant, or under his supervision; that plaintiff, on account of his trust in defendant, did not read the deed to him, and did not know the contents of it when he commenced this suit; that at the time of their execution defendant represented to plaintiff that it would be greatly to the interest of both parties not to record either of said deeds; that plaintiff did not record his deed, but defendant immediately caused the one to him to be recorded, and since then has appropriated the rents of the land conveyed by it; that after defendant executed said deed to plaintiff he, in the month of May, 1884, requested plaintiff to permit him to see it, knowing that it had not been recorded, and plaintiff returned it to him; that defendant has never returned the deed to plaintiff, and plaintiff has no means of ascertaining what land was conveyed by it; that plaintiff did not learn that defendant would refuse to return said deed to him until November, 1886, at which time he refused to deliver it to plaintiff. Plaintiff charges that defendant had then formed the design of defrauding him, by obtaining from him all his property without consideration, and that he then and there fraudulently represented to plaintiff that he owned the lands which he pretended to give in exchange for plaintiff's land, when in truth and fact he did not own the same. Plaintiff charges that his memory and eye-sight were then impaired by age, and that he does not believe he read the deed from plaintiff, and he is unable to state its contents; that when defendant requested plaintiff to examine said deed he fraudulently represented that he merely wanted to look over it, and promised to return it, but in fact his purpose was to get possession of and destroy or suppress it. Plaintiff charges that he did not learn of defendant's fraudulent design with regard to said land until the ____ day of November, 1886, when defendant refused to return the deed; and that he did not learn that defendant had no title to the lands that he pretended to give in exchange for said Tarrant county land until long after his refusal to return said deed. Wherefore plaintiff says his cause of action did not accrue until said refusal. Plaintiff charges that the lands for which defendant's deed to him was given are situated in a distant part of the state, and plaintiff had no access to the title papers thereof, nor to the records of said lands, and, being very old, and without money, he could not, by any diligence, have discovered the wrong that defendant was meditating; wherefore he says, if he had a cause of action prior to the refusal of defendant to return said deed, the same was fraudulently concealed, and could not have been discovered sooner by the use of any degree of diligence. Plaintiff offered to reconvey to defendant the lands embraced in the deed to him. Plaintiff further averred that it was agreed between him and defendant that Pierce should take the deed to the "Smith Place" to himself, and that he should, when subsequently requested, convey the land to plaintiff; that defendant was first requested to make such conveyance on the ____ day of December, 1886; that defendant was the attorney and counselor in law matters, as well as the son-in-law, of plaintiff, and he reposed the utmost confidence in him, and he therefore says that his cause of action as to the Smith place did not accrue to him until the repudiation of the trust.

The defendant, John T. Pierce, died before judgment, leaving a will, which was afterwards probated, by which he devised his entire estate to his nieces, Richie and Mattie Godbold. He left surviving him his widow, Annie E. Pierce, and two minor children, John L. Pierce and Hope Pierce. A. H. Cooper, the appellant, was appointed administrator with the will annexed of the estate of said John T. Pierce, and, as such, was made a party defendant. Upon the suggestion of the administrator, the widow and two children and the two devisees of the deceased were made defendants. The widow and the two children of deceased appeared and entered their disclaimers, and were dismissed, with their costs. The administrator filed an amended answer, in which he defended as to the two tracts of land separately, designating plaintiff's allegations as to the "Smith Place" as the "first count," and those as to the Tarrant county land as the "second count." To the first count he interposed a general demurrer, and special demurrers as follows: First, "that it is insufficient, because it fails to show why, and for what consideration, Pierce accepted the trust, and fails to show any specific or expressed trust reposed in him by Lee to invest the money and funds of the latter in land, with legal title in the name of the former;" second, "that it affirmatively shows that Pierce was acting only in the capacity of attorney at law for Lee, and that he immediately, upon paying for the land, took the title in his own name, in violation of the relation of client and attorney, and that, if Pierce ever promised to reconvey the `Smith Place' to Lee, it was long after he had converted the funds to his own use;" third, "because it fails to show any reason why Lee invested Pierce with such trust, when he was in every respect competent to act for himself;" and, fourth, "it shows that, if Lee ever had a cause of action against Pierce by reason of the premises, such cause of action accrued more than four years before the institution of this suit." To the second count he interposed a general demurrer, and special exceptions as follows: First, "because no facts are set forth sufficient to justify a rescission of the contract of sale;" second, "because it contains no allegations of fraud, accident, or mistake sufficient to justify a rescission of the contract;" third, "because it does not offer to restore to defendant the condition occupied by Pierce at the date of the transaction;" fourth, "because it shows that plaintiff willingly entered into the transaction, and accepted Pierce's deed, keeping it for years, and failing to record it at his own peril, wherefore he ought not now to be heard to assert ignorance of the contents of the deed;" fifth, "because plaintiff's cause of action accrued to him long before the institution of this suit, and he, being fully advised of all the facts, did not institute suit to rescind within a reasonable time;" sixth, "it shows that plaintiff's cause of action accrued to him more than four years before he brought suit, and that it is barred by the statute of limitations." The administrator pleaded a general denial of both counts, and specially to both, in...