Davis v. Leach, Civ. A. No. 2562.

• Decision Date: 08 May 1954
• Docket Number: Civ. A. No. 2562.
• Parties: DAVIS v. LEACH et al.
• Court: U.S. District Court — Eastern District of Texas

121 F. Supp. 58

DAVIS v. LEACH et al.

Civ. A. No. 2562.

United States District Court E. D. Texas, Beaumont Division.

May 8, 1954.

R. F. King, Hemphill, Tex., for plaintiff.

O'Neal Bacon, Newton, Tex., for defendants C. C. Leach and wife, Beatrice Leach.

Nathan M. Holt, pro se.

SHEEHY, District Judge.

The defendants, C. C. Leach and wife, Beatrice Leach, have filed a motion for summary judgment. The plaintiff has likewise moved for a summary judgment.

Plaintiff's original complaint is very poorly drawn, but, after wading through the complaint and giving the plaintiff the benefit of all doubts as to the allegations contained therein and the effect thereof, it can be fairly said that plaintiff alleges as follows: That he is a resident and citizen of the State of Louisiana and is the sole surviving heir-at-law of Mollie Hoyle, who died intestate; that the defendants, and each of them, are residents and citizens of the State of Texas; that as the sole surviving heir of Mollie Hoyle, deceased, he is the owner in fee simple title of a 97¼ acre tract of land in the A. M. Bevill League Survey in Newton County, Texas, being the same land described in a deed from A. L. McGown to Mollie Hoyle, dated December 26, 1929 and recorded in Volume 8, Page 150 of the Deed Records of Newton County, Texas; that the fair cash market value of said land is $10,000 and is the same land described in plaintiff's first amended original petition filed in the District Court of Newton County, Texas, on August 17, 1951 in Cause No. 4078 on the docket of said court and in which cause Mollie Hoyle was plaintiff and C. C. Leach and wife, Beatrice Leach, two of the defendants herein, were defendants, a copy of said first amended original petition being attached to plaintiff's complaint herein and made a part thereof; that on November 23, 1948 Mollie Hoyle executed and delivered to Mrs. C. C. Leach (who is one and the same person as Beatrice Leach, one of the defendants herein) a warranty deed conveying to Mrs. C. C. Leach the 97¼ acre tract of land, above referred to; that said deed was obtained by Mrs. Leach by reason of fraud, deceit and duress exercised by Mrs. Leach and her husband, C. C. Leach; that subsequent to the execution and delivery of said deed, as aforesaid, Mollie Hoyle, acting by and through her attorney, Nathan M. Holt, one of the defendants herein, instituted suit in the District Court of Newton County, Texas, against C. C. Leach and wife, Beatrice Leach, seeking to recover title to and possession of the 97¼ acre tract of land, above referred to, and to cancel and set aside the deed from Mollie Hoyle to Mrs. C. C. Leach, dated November 23, 1948, above referred to, which suit bore Cause No. 4078 on the docket of the District Court of Newton County, Texas, and is the same suit in the District Court of Newton County, Texas, above referred to; that on September 6, 1951 judgment was entered in said Cause No. 4078 in the District Court of Newton County, Texas, vesting title in and to the 97¼ acre tract of land, above referred to, in C. C. Leach and wife, Beatrice Leach; that said judgment was entered upon the agreement of Mollie Hoyle's attorney, Nathan M. Holt, and without the knowledge and consent of Mollie Hoyle and that Nathan M. Holt was without authority to agree to the entry of said judgment; that the defendants, C. C. Leach and wife, Beatrice Leach, are claiming and asserting title to and right of possession of the 97¼ acre tract, above referred to, under and by virtue of the deed from Mollie Hoyle to Mrs. C. C. Leach, above referred to, and the judgment entered in Cause No. 4078 in the District Court of Newton County, Texas, on September 6, 1951, above referred to; and that jurisdiction of this court is based on the diversity of citizenship between the plaintiff and the defendants and on the Seventh and Fourteenth Amendments to the Constitution of the United States.

Plaintiff in his complaint, in the alternative, pleads for judgment for the $1,500 consideration which was promised Mollie Hoyle if she would make a will to defendant Mrs. C. C. (Beatrice) Leach. However, there are no allegations that would show or tend to show who promised any such $1,500, under what conditions or circumstances same was promised and whether Mollie Hoyle made a will to Mrs. Leach or, if so, the terms and provisions of said will. These allegations state no cause of action against the defendants, or any of them, and will be given no further consideration.

In the prayer of the complaint plaintiff asks judgment for the title to and possession of the above mentioned 97¼ acre tract of land; for damages from defendants because of their withholding said land unlawfully from him; for lease rentals, bonuses, rentals and all mesne profits accruing from said land since November 23, 1948; the cancellation of the deed from Mollie Hoyle to Mrs. C. C. Leach, dated November 23, 1948, above referred to; and that the judgment entered in the District Court of Newton County, Texas, on September 6, 1951 in Cause No. 4078 on the docket of that court be set aside.

There is no allegation of fact contained in plaintiff's complaint that would show that this court has jurisdiction of this cause under either the Seventh or Fourteenth Amendments of the Constitution of the United States. However, this court does have jurisdiction of this cause under the provisions of Title 28, Sec. 1332, U.S.C.A. because of the diversity of citizenship of the parties.

The defendants, Leach and wife, as the basis for their motion for summary judgment contend that the judgment entered in the District Court of Newton County, Texas, on September 6, 1951 in Cause No. 4078 on the docket of said court, which Cause No. 4078 will be hereinafter referred to as the State Case, bars the bringing or prosecution of this action against them under the doctrine of res judicata. In other words, it is the contention of Leach and wife that title to the land in controversy herein and the validity of the deed from Mollie Hoyle to Mrs. C. C. Leach, which the plaintiff seeks to set aside herein, was adjudicated by the judgment entered on September 6, 1951 in the State Case.

The record in this case discloses in addition to the allegations contained in plaintiff's complaint, above summarized, the following pertinent facts: The state court suit was instituted by Mollie Hoyle through her attorney of record, Nathan M. Holt, on April 27, 1951; that on August 17, 1951 Mollie Hoyle, acting through her attorney of record, filed her first amended original petition in the state court and in addition to the allegations in the nature of a formal trespass to try title action pleaded further in the alternative that C. C. Leach and wife, Beatrice Leach, had a deed to the land in question from Mollie Hoyle, being the same deed above described as the deed, dated November 23, 1948, from Mollie Hoyle to Mrs. C. C. Leach, and alleged that said deed was obtained from Mollie Hoyle by C. C. Leach and wife through fraud and duress, the claimed acts of fraud and duress having been alleged in detail, and sought to recover of and from C. C. Leach and wife the title to and possession of the 97¼ acre tract of land in controversy herein and further sought cancellation of said deed from Mollie Hoyle to Mrs. C. C. Leach, above referred to; that on September 6, 1951 judgment was entered in the State Case, which recited, in effect, that the plaintiff, Mollie Hoyle, and the defendants, C. C. Leach and wife, Beatrice Leach, appeared personally and by their attorneys and agreed that the judgment that was entered might be entered; that the judgment entered provided that C. C. Leach and wife, Beatrice Leach, recover of and from Mollie Hoyle title to and possession of the 97¼ acre tract of land subject to Mollie Hoyle having for and during her natural life possession and use of said tract of land and the appurtenances thereto; that on October 5, 1951 Mollie Hoyle filed in the State Case an instrument denominated "Motion to Set Aside Judgment and for Trial on the Merits", which instrument was signed by R. F. King (attorney for plaintiff herein) as her attorney; that this motion was overruled by the State District Court as having been filed too late; that thereafter Mollie Hoyle, acting through her attorney, R. F. King, attempted to appeal to the Court of Civil Appeals for the Ninth Supreme Judicial District of Texas from the judgment entered on September 6, 1951, above referred to; that the Court of Civil Appeals, by a per curiam opinion handed down on March 26, 1951 (the opinion is not published as the Court of Civil Appeals pursuant to the authority vested in it by Rule 452, Texas Rules of Civil Procedure, directed that such opinion be not published) held that the notice of appeal given by Mollie Hoyle and...