Davis v. Van Wie

• Decision Date: 08 May 1894
• Citation: 30 S.W. 492
• Parties: DAVIS v. VAN WIE et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

30 S.W. 492

DAVIS v. VAN WIE et al.¹

Court of Civil Appeals of Texas.

May 8, 1894.

Appeal from district court, Wichita county.

Action by M. J. Van Wie and husband against H. T. Davis to cancel deed. Judgment for plaintiffs. Defendant appeals. Affirmed.

Swan & Swain, for appellant. J. A. Templeton, for appellees.

Statement of the Case.

TARLTON, C. J.

Mary J. Van Wie, joined by her husband, C. H. Van Wie, brought this suit to cancel a deed purporting to have been executed by them, bearing date September 8, 1888, and conveying their homestead, situated in Henrietta, Clay county Tex., to the appellant, H. T. Davis. The ground on which they prayed relief was that the wife did not sign the deed willingly, but under fear and duress from her husband, alleging fraud and collusion upon the part of the notary who took the acknowledgment, and of appellant in procuring the deed and acknowledgment, and also fraud practiced upon the husband, together with failure of consideration. The verdict of the jury, resting upon evidence conflicting upon the main issue presented by the pleadings, requires from us the following

Conclusions of Fact.

(1) Prior to the date of the deed, September 8, 1888, H. T. Davis was the owner of a certain patent right known as the "Davis 1888 Quilter." He agreed upon the terms of a trade with the husband, Van Wie, whereby he was to transfer to Van Wie the right to sell this quilter in Minnesota and Dakota, and also in Clay county, Tex., and to pay to Van Wie the sum of $400 in cash, and also to make over to him 70 sets of castings, valued at $100, used in the making of the quilter. On the part of Van Wie, the husband, it was agreed that he and his wife should convey to appellant, Davis, their homestead, valued at $2,000.

(2) On the day named the deed was executed and acknowledged by the husband, C. H. Van Wie. It was also signed by Mrs. Van Wie, through her daughter, and it was authenticated by a notary; the certificate of acknowledgment containing all the necessary and formal requisites prescribed by the statute for the acknowledgment of conveyances by married women. It was not, however, willingly signed by the wife, but was signed under fear of her husband.

(3) Of this fact, before the delivery of the deed to him, the appellant had notice, in the sense that he had information sufficient to put him upon inquiry.

(4) The transfer to the husband, Van Wie, was of 237 licenses, one for each county in the territory represented; and each transfer required, in effect, that Van Wie should purchase of the appellant as many as 10 sets of fixtures, and should pay for each set the sum of $1.50 in cash on or before the 1st day of November of each year, beginning with 1890, and closing with 1904; otherwise that the licenses should become null and void.

Conclusions of Law.

1. As indicated by our findings of fact, we dissent from appellant in his assignment that the verdict of the jury was unwarranted by the law and the evidence.

2. If the deed was unwillingly signed by the wife, we do not think that she was required to tender back the $400 cash payment made to her husband. If the deed was willingly signed by her, she was, under the...