Dyer v. Hardin, 6846

• Decision Date: 23 March 1959
• Docket Number: No. 6846,6846
• Citation: 323 S.W.2d 119
• Parties: Sam DYER et ux., Appellants, v. Maxine Ellis HARDIN et vir, Appellees.
• Court: Texas Court of Appeals

Page 119

323 S.W.2d 119

Sam DYER et ux., Appellants, v. Maxine Ellis HARDIN et vir, Appellees.

No. 6846.

Court of Civil Appeals of Texas, Amarillo.

March 23, 1959.

Rehearing Denied April 20, 1959.

Simpson, Clayton & Fullingim, Amarillo, W. T. Link, Clarendon, for appellants.

Monning & Monning, Amarillo, William J. Lowe, Clarendon, for appellees.

PITTS, Chief Justice.

Appellees, Maxine Ellis Hardin, joined by her husband, W. K. Hardin, sued her uncle, appellant herein, Sam Dyer, together with his wife, Lula Dyer, seeking to impress a constructive trust upon and recover an undivided one-half interest in approximately 2,232 acres or 3 1/2 described sections of land in Armstrong County, Texas, and certain described town lots with improvements thereon in Clarendon, Donley County, Texas. Appellees alleged in effect that on May 12, 1947, Maxine Ellis, then a single woman, at the request of her uncle, Sam Dyer, executed a deed in oral trust conveying her one-half undivided interest in the lands to her uncle, Sam Dyer, who owned the other undivided one-half interest therein and who by agreement between them would hold her one-half interest in trust for her for a period of 10 years upon the condition that he could use the said land but would pay off all indebtedness against her part of the land, which amounted to one-half of approximately $15,864, and pay her for the use thereof the sum of $1,000 each year or the total sum of $10,000 for the 10 year period, at the end of which period he, Sam Dyer, agreed to convey her one-half undivided interest in the land back to her; that near the end of the said 10 year period Maxine Ellis Hardin requested Sam Dyer to convey her one-half interest in the said land back to her in compliance with his promise so to do and upon his refusal to do so, she then being married, was joined by her husband in filing this suit. Appellees likewise therein sued appellants for an accounting for the proceeds from all sources from the said lands from the year 1942 to 1946, both inclusive and for an accounting of the revenues received by him from the farm land from 1947 to 1956, both inclusive, alleging that much of the Armstrong County land in question was farm land and further alleging that she had inherited her one-half undivided interest in the said lands here involved from her mother, Elizabeth Dyer Ellis, deceased, who was a sister of Sam Dyer, and from her grandmother Minnie Dyer, deceased, who was the mother of Sam Dyer, from whom Sam Dyer likewise inherited his undivided one-half interest in the said land; that her mother, Elizabeth Dyer Ellis and Sam Dyer being the only children and heirs of Minnie Dyer, deceased, and she being the only child and heir of her mother, Elizabeth Dyer Ellis, deceased, that her mother, Elizabeth Dyer Ellis, died intestate in April, 1946 and her grandmother, Minnie Dyer, died intestate in November, 1946, and that from 1942 through 1946 Sam Dyer, in whom she, her mother and grandmother had the utmost confidence, had managed and controlled all of the said land, collecting all of the revenues therefrom without having accounted for such during the said period of time.

On October 9, 1957, at a preliminary hearing, the trial court rendered a summary judgment upon appellants' motion for such together with depositions attached thereto, denying appellees any recovery for one-half interest in the Clarendon, Donley County, Texas, town lots and the improvements thereon as well as denying them any accounting of and recovery of one-half interest in the proceeds and revenues from any and all of the said lands from the year 1942 to 1956, both inclusive, to which summary judgment appellees timely excepted, and the trial court thereby likewise severed the remainder of the suit from the foregoing parts mentioned, that is, severed the controversy involving the Armstrong County lands, to be separately tried upon issues pleaded by the parties. The record reveals that such a summary judgment was again rendered by the trial court on April 2, 1958, to which appellees 'in open court excepted and objected in a proper and timely manner.' Upon the said remainder of the suit the said parties repleaded, joining issues with each other upon fourth amended pleadings filed involving the constructive trust and deed to the Armstrong County land, went to trial on April 15, 1958, before a jury on the matters there pleaded, including a plea of limitation filed by appellants, and a plea by appellees for judgment for the revenues collected from the said lands by appellants since May 12, 1957.

Upon three special issues submitted to the jury, without objections or exceptions from either party, the jury found in effect that prior to the preparation and execution of the deed in question by Maxine Ellis Hardin conveying the land in question to Sam Dyer, he (Sam Dyer) had agreed with her that he would reconvey to her the said land at the end of a 10 year period; that Maxine Ellis Hardin would not have executed such deed without Sam Dyer having previously made such an agreement with her; and that Maxine Ellis Hardin did not learn during the year 1952 that Sam Dyer would not reconvey to her the one-half interest in the said lands which she had previously conveyed to him, thus by such answer refuting appellants' plea of limitation. Thereafter both parties filed motions for judgment upon the jury verdict, but on June 19, 1958, the trial court overruled appellants' motion for judgment and rendered judgment based upon the jury verdict awarding an undivided one-half interest of the Armstrong County lands in question to Maxine Ellis Hardin as her separate property and likewise awarded to her and her husband, as against appellants, the revenues collected by appellants from the said lands since May 12, 1957, in the total sum of $7,961.52 and again making its summary judgment final denying appellees recovery of one-half interest in Clarendon, Donley County, town lots and the improvements thereon, with all costs adjudged against appellants.

Appellants have perfected an appeal from the judgment rendered and have presented 19 lengthy points of error, each of which will have our consideration here but not in the order presented.

It may be well to observe here that after Maxine Ellis' mother died, her uncle, Sam Dyer, and wife, Lula Dyer, became more attached to Maxine Ellis and seemed to treat her like an own child since they had no children of their own. Maxine Ellis was then 26 years of age and had a college education but seemed to have little business ability when Sam Dyer and wife began buying her nice presents and her Uncle Sam sent her away on several nice visits, one of which was to Washington, D. C. and another to New Orleans. After the death of her grandmother Maxine Ellis had inherited an undivided one-half interest in the lands in question and her Uncle Sam Dyer had inherited the other one-half undivided interest in the land. On or about December 21, 1946, Sam Dyer and his wife Lula Dyer and Maxine Ellis, all of whom lived in Clarendon, Texas, went together to Amarillo, Texas, where Colonel E. A. Simpson, an attorney at law and a good friend for many years to Sam Dyer and wife, drew separate wills for all three of them, which wills were on December 21, 1946, duly executed by them separately but all of the said wills were witnessed by the same witnesses. Maxine Ellis Hardin testified that the wills were drawn at the suggestion of her uncle, Sam Dyer, who determined what to put in them. Sam Dyer and wife, Lula Dyer, named each other as primary beneficiaries in their respective wills with Maxine Ellis named secondarily as a beneficiary of each of them in case she survived the named primary beneficiary. Maxine Ellis named her uncle, Sam Dyer, as the primary beneficiary in her will, her aunt, Lula Dyer, as a secondary beneficiary if she survived both Sam Dyer and Maxine Ellis, but in case both Sam Dyer and Lula Dyer preceded her in death, in that event she named her father, Dr. T. H. Ellis, who later died on December 24, 1956, as the sole beneficiary. Thereafter only a few days before May 12, 1947, Sam Dyer and Maxine Ellis went back to Amarillo to see Col. E. A. Simpson about drawing the deed here involved. Col. Simpson told Maxine Ellis in substance that the consideration for the land described in the deed was not enough value for the land therein described and she had better get her own lawyer to pass on the matter for her since he was representing her uncle, Sam Dyer, but she declined to get another lawyer to represent her. At the trial Maxine Ellis Hardin testified in effect that immediately prior to the drawing and execution of the deed in question her uncle, Sam Dyer, had several conversations with her about her deeding her undivided one-half interest in the land to him for him to look after it for her and 10 years later he would deed it back to her; that her Uncle Sam told her it would be for her best interest to deed her part of the land to him only for the said period of time since he could keep the land together where he could look after all of it, care for her interest, pay off the debt against it since she could not do these things very well or at least as well as he could; that they agreed upon the consideration for such a deal previously herein shown and she relied on his statements and would not have deeded the land to him if he had not made these representations to her; and that she did not authorize Col. Simpson to draw any affidavit in connection with the deed for her to sign and did not know he was going to draw such affidavit until he later brought the deed and affidavit to Clarendon for her to sign; and that she had faith in her Uncle Sam who told her not to discuss their oral agreement about him deeding the land back to her after a 10 year period with anybody since that was a matter between them concerning their own business and for her not to say anything about it and she did...