Davis v. Biggs, 9462.

• Decision Date: 11 October 1944
• Docket Number: No. 9462.,9462.
• Citation: 182 S.W.2d 1017
• Parties: DAVIS et al. v. BIGGS et al.
• Court: Texas Court of Appeals

182 S.W.2d 1017

DAVIS et al. v. BIGGS et al.

No. 9462.

Court of Civil Appeals of Texas. Austin.

October 11, 1944.

Rehearing Denied November 1, 1944.

Appeal from District Court, Coke County; John F. Sutton, Judge.

Suit by Ira Davis, trustee, and others, against J. D. Biggs and others, to set aside deed to a half interest in land on the ground of mutual mistake of fact or of law and to recover a half interest therein. Defendant's plea of res judicata and estoppel was sustained and the cause dismissed, and plaintiffs appeal.

Affirmed.

R. G. Hughes, D. I. Durham, and W. A. Wright, all of San Angelo, for appellants.

Upton, Upton & Baker, of San Angelo, for appellees.

BAUGH, Justice.

Johnnie I. Williams, independent executor of the estate of Jeff D. Davis, deceased, and Ira Davis, Trustee and as next friend for Edward Rue Davis, a minor, sued J. D. Biggs and wife B. Lizzie Biggs, former wife of Jeff D. Davis, to set aside a deed to a half interest in 480 acres of land in Coke County, Texas, executed and delivered by Jeff D. Davis to B. Lizzie Davis, his then wife, on January 2, 1935, conveying to her an undivided half interest in said lands, on the grounds of mutual mistake of fact or of law, and to recover a half interest in said lands. After the death of Jeff D. Davis, B. Lizzie Davis married Biggs. Jeff D. Davis left a will, which was duly probated, in which he devised to Edward Rue Davis a half interest in said lands. The defendants, appellees here, among other things, pleaded in bar a former final judgment between the same parties involving the same lands, and as an estoppel, which plea was sustained by the trial court and the cause dismissed; hence this appeal.

When the will of Jeff D. Davis was offered for probate, its probate was contested by B. Lizzie Davis, now Biggs, on the grounds of lack of testamentary capacity of the testator. Such contest was not sustained. See Davis v. Williams, Tex. Civ.App., 144 S.W.2d 445. In that contest the deeds involved in the instant case were offered on the issue of mental capacity of the testator, but the disposition of the issues presented in that suit is not here involved. Independent of the will contest, the same parties who are now plaintiffs in this suit also sued B. Lizzie Davis for title and possession of a half interest in the lands here involved, wherein the trial court rendered judgments against said plaintiffs. That judgment was affirmed by the Supreme Court in Davis v. Davis, 141 Tex. 613, 175 S.W.2d 226, and was held by the trial court to preclude the same plaintiffs in the instant case. In that suit the various conveyances discussed in Davis v. Davis, supra, were pleaded. The deeds involved were: 1. From Jeff D. Davis to his wife B. Lizzie Davis, made in February, 1903, conveying to her all of said lands as her separate property. This deed divested him of all his interest in said lands. See Davis v. Williams, Tex.Civ. App., 144 S.W.2d 445. 2. Deed from Jeff D. and B. Lizzie Davis to Elizabeth Passow, conveying to her an undivided half interest in said lands; deed from Elizabeth Passow to Jeff D. Davis, conveying to him as his separate property such half interest; and a deed from Jeff D. Davis to his wife, conveying to her as her separate property an undivided half interest in such lands, all of which last three described deeds were executed and delivered on January 2, 1935.

In the former suit the plaintiffs (appellants in the instant suit) pleaded, among other things, that though the deed of January 2, 1935, from Jeff D. to B. Lizzie Davis was absolute on its face, it was nevertheless a trust and never intended to divest title out of Jeff D. Davis; that, in substance, the purpose and intent of these deeds of January 2, 1935, were to invest Jeff D. and B. Lizzie Davis each with an undivided half interest in said lands as their respective separate estates; and prayed that said deed be reformed so as to show such intention and decree to B. Lizzie Davis and the estate of Jeff D. Davis each, an undivided half interest in said lands as separate property of each, and to award the plaintiffs therein such undivided half interest.

In addition to the defensive pleas to plaintiffs' petition in that suit, the defendant B. Lizzie Davis filed a cross-action in trespass to try title against plaintiffs, guardian ad litem was appointed and answered for the minor, Edward Rue Davis, and after trial on all the issues made, judgment was rendered for Mrs. Davis awarding to her title and possession of said lands. That judgment was affirmed in 141 Tex. 613, 175 S.W.2d 226.

This suit was subsequently filed by the same plaintiffs, after losing the first suit, seeking to set aside, on the grounds of mutual mistake, or mistake of law on the part of Jeff D. Davis, the same deed which they sought to have reformed in the first suit, and to recover the same interest in the same land involved in the first suit. Appellants rely, as sustaining their...