Edwards v. Williams, 3240
| Decision Date | 11 May 1956 |
| Docket Number | No. 3240,3240 |
| Court | Texas Court of Appeals |
| Parties | Mollie EDWARDS, Appellant, v. Fred B. WILLIAMS, Appellee. |
Randolph Scott and Charles Winikates, Dallas, for appellant.
Eades & Eades, Dallas, for appellee.
Mrs. Mollie Edwards filed this suit on April 29, 1955. She sued her half-brother, Fred B. Williams, to cancel a deed executed by the mother of both to her son, Fred B. Williams, on March 2, 1926, and to partition the land so conveyed between plaintiff and defendant. Plaintiff alleged that her brother exercised undue influence on their mother, who was elderly, unable to read and write and incapable of handling or knowing the consequences of business transactions, and thereby procured a conveyance of the mother's interest in the land; that for several years afterwards their mother often made statements to the effect that part of the land had been conveyed to Mollie Edwards; that from the execution of the deed until about thirty days before this suit was filed Williams 'through his demeanor, candor and actions, acquiesced in the knowledge that the plaintiff, Mollie Edwards, had a one-fourth (1/4) interest' in said land.
Defendant pleaded 2, 3, 4, 5, 10 and 25 year statutes of limitation. Defendant filed a cross action in trespass to try title and a motion for summary judgment, alleging that the pleadings and affidavits on file showed there was no genuine issue as to any material fact and that defendant was entitled to judgment as a matter of law. Attached thereto was defendant's affidavit that his father, who was not the father of Mrs. Edwards, purchased an undivided one-half interest in the land and thereafter married the mother of both plaintiff and defendant and later, in 1897, purchased the other one-half interest; that his father died intestate in 1926, leaving surviving him as his heirs at law the defendant and the mother of plaintiff and defendant, and that, on March 2, 1926, their mother conveyed her interest in the land to defendant; that defendant then went into possession and has continuously since lived upon, used, cultivated and enjoyed it, maintained the improvements and the fences enclosing the land, paid all taxes as they became due and held peaceable, continuous and adverse possession thereof, claiming same under a regular chain of title duly recorded from the sovereignty of the soil and under said deed from his mother, which was promptly recorded in the county where the land lies, and, in good faith, had on numerous occasions sold portions thereof, and had openly and continuously exercised dominion over said land since March 2, 1926, and that plaintiff has not at any time since 1926 lived upon or occupied said land or any part thereof and has not exercised dominion over any part nor paid any taxes thereon.
Plaintiff answered defendant's motion for summary judgment by alleging that the following issues of fact had been raised: (A) Did defendant procure the execution of the deed by undue influence? (B) Did he procure execution thereof by representing to his mother that the deed conveyed part of the land to plaintiff? (C) Did defendant lead plaintiff to believe until 1955 that he recognized she had an interest in the land? Plaintiff alleged that from the affidavits attached a jury could find that defendant 'procured' the deed and that defendant since the execution of the deed held said property as a co-tenant and not adversely to her and had not done anything which as a matter of law, would preclude plaintiff from having the deed cancelled. Plaintiff attached to her answer her affidavit that after the death of her step-father in 1926 the mother lived with plaintiff most of the time until 1934 and that from 1934 until her mother's death in 1938 the mother lived continuously with Mollie Edwards. 'That on occasion her mother, Harriet E. Williams, told her that she, Harriet E. Williams, had 'fixed' her part of the land'; that plaintiff 'understood' this to mean that her mother 'had willed and/or deeded one-half of the property which she, Harriet E. Williams, owned to her--.' Plaintiff further swore that since the death of her mother she, her family and neighbors were of the 'opinion that she owned an interest in the land in question equal to one-half (of) what her mother, Harriet E. Williams, owned--; that at all times Williams knew she had said opinion but did nothing 'to contradict or refute that opinion'; that he 'acquiesced in that opinion'; that plaintiff permitted defendant to work all the land; that she did not ask him to share any of the income or profits but she 'expected' him to pay expenses and taxes; that she permitted her half-brother to farm the land and not account to her because her share was small; that she 'anticipated' the property would go up in value because the community was becoming residential and she 'anticipated to use her share of the land when it became ripe for residential purposes' and when they could sell it for residential purposes. She further stated that her mother could neither read nor write; that she was not experienced in business transactions and, on March 2, 1926, she 'did not have the mental capacity to execute a deed.' Plaintiff also attached the affidavit of her son, Robert Lee Edwards, that, in 1929, Harriet E. Williams told him Mollie Edwards was very good to her and would be repaid because she 'had 'fixed' her part of the property;' that he, 'took this to mean' that his grandmother had 'deeded and/or willed one-half of the property which she owned to his mother;' that he, his mother and all the relatives and neighbors were of the 'opinion' that one-half of the interest of Harriet E. Williams in the land had been 'set aside' to Mollie Edwards; that Williams knew of this opinion but, until a few weeks before this suit was filed, did not 'refute or do anything to show that he denied the claim' of Mollie Edwards; that at all times Williams 'acquiesced' in the fact that Mollie Edwards owned one-half of the land her mother had owned. Plaintiff also attached the affidavit of Harry O. Andrews that, in 1927 or 1928, Harriet E. Williams told his mother she 'had 'fixed' the share of Mollie Edwards in the property she owned' and that he 'understood' this to mean that she had 'deeded and/or willed' one-half her interest in the property to Mollie Edwards; that all the relatives of Williams and Mollie Edwards and their neighbors were of the opinion, until 1955, that one-half of the land owned by Harriet E. Williams had been 'deeded and/or willed' to Mollie Edwards; that Williams knew that was their opinion and did nothing 'to contradict or disagree with this opinion'; that Harriet E. Williams lived for about twelve years after her husband died; that she died in 1938; that between 1926 and 1934 Harriet E. Williams spent more than one-half of her time living at the home of Mollie Edwards and during the last four years of her life she lived continuously in the home of Mollie Edwards and was supported by Mollie Edwards and her family. Plaintiff attached the affidavit of Jesse Edwards, who married a son of plaintiff, that 'on several occasions after 1929 and prior to 1938 she heard Harriet E. Williams make statements to the effect that she had 'fixed' Mollie Edwards' part of the property; that she understood this to mean that Harriet E. Williams had deeded and/or willed one-half of her property to Mollie Edwards,' and that it was common knowledge in the community that Mollie Edwards had a share in the property; that Williams knew of that opinion but did nothing to 'refute any claim' Mollie Edwards made to the land. Plaintiff also attached the affidavit of James Porter Edwards 'that at least four or five times during the period of time from about 1931 until about 1937, he heard his grandmother, Harriet E. Williams, make statements saying that his mother, Mollie Edwards, had a share of the land in question and that her share had been 'fixed'.'
The court, upon consideration of said motion, pleadings and affidavits, sustained defendant's motion for summary judgment and rendered judgment for defendant. Mollie Edwards has appealed.
Appellant contends the court erred in granting defendant's motion for summary judgment because the record shows issues of fact were raised as to whether (1) the deed was procured by fraud, undue influence or mistake; (2) the possession of Williams was adverse and (3) plaintiff's cause of action, if any, was barred by limitation.
Mrs. Edwards petition was based solely on an allegation that Williams procured the deed by undue influence. In connection with this sole asserted ground for cancellation it was alleged that when the deed was executed Mrs. Williams was elderly, unable to read or write and incapable of handling or knowing the consequences of business transactions and that after execution of said deed Mrs. Williams often made statements to the effect that part of the land had been conveyed to Mollie Edwards and that, until thirty days before this suit was filed in 1955, Williams 'acquiesced in the knowledge' that Mollie Edwards owned a one-fourth interest in the land. In other words, the only ground alleged for cancellation was that the deed was procured by undue influence and the only apparent purpose for alleging that the grantor was elderly, unable to read or write and incapable of handling or knowing the consequences of business transactions was to show the grantor was susceptible to undue influence. Plaintiff did not allege insanity as a ground for cancellation. The evident purpose of plaintiff's allegation that Williams, by his acts and demeanor, 'acquiesced in the knowledge' that plaintiff had an interest in the land was to anticipate a plea of limitation by defendant.
Texas Rules of Civil Procedure, rule 166-A(e) provides that affidavits in proceedings for summary judgment shall be made on personal knowledge, shall set forth...
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