Farmers' State Bank v. Farmer

• Court: Texas Court of Appeals
• Writing for the Court: Hall
• Citation: Farmers' State Bank v. Farmer, 157 S.W. 283 (Tex. App. 1913)
• Decision Date: 10 May 1913
• Parties: FARMERS' STATE BANK OF QUANAH v. FARMER et al.

157 S.W. 283

FARMERS' STATE BANK OF QUANAH v. FARMER et al.

Court of Civil Appeals of Texas. Amarillo.

May 10, 1913.

Appeal from District Court, Cottle County; Jo. A. P. Dickson, Judge.

Suit by Mrs. Eula Farmer and another against the Farmers' State Bank of Quanah. From judgment for plaintiffs, defendant appeals. Affirmed.

W. T. Perkins, of Quanah, for appellant. J. A. Templeton, of Ft. Worth, for appellees.

HALL, J.

This was a suit by appellee Mrs. Eula Farmer joined by her husband, R. A. Farmer, to enjoin a sale under and to cancel a certain deed of trust executed by appellees on May 16, 1911, to secure a note in favor of appellant bank in the sum of $662.50. The trust deed conveyed lots 1, 2 and 3 in block No. 4, in the town of Paducah, in Cottle county. Appellees allege in their petition that at the date of the execution of the deed of trust and for a long time prior thereto, the unincumbered lots were the separate property of appellee Mrs. Eula Farmer; that said property was then being used and occupied by appellee R. A. Farmer as a livery barn, feed stable, etc., which said property had been improved by appellees for that purpose; that the same was then the business homestead of appellee R. A. Farmer and not subject to incumbrance by deed of trust, of all of which appellant had full knowledge; that with knowledge of such facts, appellant induced said R. A. Farmer, and through him the said Eula Farmer, to execute said deed of trust; that the debt secured thereby was the separate and individual debt of said R. A. Farmer and neither the said Eula Farmer nor her property was in any manner liable therefor; that at the time of the execution of said deed of trust said Eula Farmer had been suffering from a malady known as pellagra, and her mind had been affected therefrom to such an extent as to render her incapable of transacting any business; that she did not know what she was doing when she executed the said deed of trust and did not realize that she was executing a deed of trust on her property to secure the debt of R. A. Farmer; that no part of the consideration for which said note was executed was used for the benefit of said Eula Farmer or of her separate property; that she has never in any way ratified said deed of trust and because of said facts appellees allege that said deed of trust is and has always been void.

Appellant answered by general denial and specially that the said deed of trust and note were given by appellees to secure a loan made by appellant to appellees on said 16th day of May, 1911; that appellees were not using or occupying said property for any purpose and never had used or occupied said property for any purpose, but that the same was then and always had been used and occupied by other persons than appellee; that as an inducement to appellant to loan appellees said money appellees represented to appellant that said property was community property of appellees; that they were not using or occupying same for any purpose and had no interest in the business then being conducted on said lots; that they never had any interest in said business and had specially disclaimed any homestead interest therein; that at the date of the execution of said deed of trust, a firm by the name of Day & Anderson owned and conducted the business carried on in said property and had so owned and conducted said business for a month or so prior thereto. Appellant further alleged that the money so borrowed from appellant, evidenced by said note and secured by said deed of trust, was used to pay off and discharge a lien upon the property owned and claimed by appellees as the separate property of Mrs. Eula Farmer; that appellant relied upon said representations made by the appellees and had no notice or knowledge that the same were not true and that appellees were estopped to maintain said suit without first tendering to appellant said money borrowed. Appellant further alleged that if appellees had ever used said lots as a place to carry on any business, the same had been abandoned by them prior to the execution of said deed of trust and that appellee R. A. Farmer, who was the head of the family, was then engaged in another and different business many miles from the town of Paducah and in a different county.

As constituting appellee Mrs. Eula Farmer's title to the lot in question, the following evidence was introduced: (1) Deed from J. V. Guyton and wife to Henry Farmer, dated October 1, 1907, and filed for record the same day. Mrs. Guyton was the daughter of appellee, and Henry Farmer, the grantee, was their son. (2) Deed from Henry Farmer and wife to Mrs. Eula Farmer, dated Feb. 9, 1911, filed for record April 11, 1911. This deed does not recite that the consideration therefor was paid by the said Mrs. Eula Farmer out of her own separate funds and does not purport to convey the property to her for her own separate use and benefit. It appears from the statement of facts that, some time after this deed was recorded, appellees caused the same to be interlined so as to recite that the consideration therefor was paid by Mrs. Eula Farmer out of her own separate funds and conveying the property to her for her separate use and benefit. After this interlineation, the deed was never acknowledged by the grantors but was refiled for record June 24, 1911, and again recorded. Henry Farmer, the son of appellees, testified that some time in May, 1911, while he was living in Wise county, he received a letter from his mother, written in her own handwriting, advising him that the deed made in February to her did not convey the property to her for her separate benefit and requested him to make a new deed that did so recite. He stated that he complied with this request, but it seems that this new deed was never recorded and was not introduced in evidence.

One matter raised by appellant and upon which it relied for a reversal is the failure of the court to comply with the written request of appellant to file findings of fact and conclusions of law. The record fails to show by bill of exceptions or otherwise that appellant's motion was ever called to the attention of the trial judge or that he ever knew such a motion or request had been filed with the clerk. The record does not disclose the fact if appellant ever reserved any bill of exception to the failure of the judge to file his findings and conclusions. This must be considered as a waiver of the motion and of any error resulting therefrom. It also appears that a full statement of facts had been filed, and in the absence of an affirmative showing on the part of appellant that it has been prejudiced by such failure, the error complained of must be disregarded.

The two principal questions involved in this appeal are: (1) Was the property covered by the deed of trust at the time of the execution of such deed plaintiff's business homestead? (2) Were the lots the separate property of Mrs. Eula Farmer, and was she at the time of the execution of the said trust deed mentally incapacitated to execute the same, and, if so, has she since ratified it? If there is evidence in the record to warrant the court in rendering its judgment in favor of appellees upon either of these issues, the judgment must be sustained. Spalding v. Aldridge, 50 Tex. Civ. App. 230, 110 S. W. 560; Appel v. Childress, 53 Tex. Civ. App. 607, 116 S. W. 129; Harris v. Cattle Co., 84 Tex. 674, 19 S. W. 869; Tuggle v. Wakefield, 30 Tex. Civ. App. 393, 70 S. W. 555.

It will not be necessary for us to consider all of the various propositions under the numerous assignments of error presenting the case for review. Appellant's first contention is that Mrs. Eula Farmer was not, as claimed by appellees, mentally incapacitated at the time the trust deed was executed and that the evidence is not sufficient to sustain the trial judgment, if the judgment is based upon that ground. We have carefully read the entire statement of facts and do not hesitate to say that the evidence, taken as a whole, is extremely weak. However, Mrs. Guyton, the daughter of Mrs. Eula Farmer, testified that she was with her mother all through May, 1911, and was with her on May 16th, when the instrument was executed; that her condition was very bad all through that month; that she did not have any strength; that they could not hear her call unless they were close to her; that she was not capable of doing anything at all and the witness further said: "I think the condition of her mind was bad at that time. I do not believe that she could carry on a connected conversation. Her nerves were wrecked; she had nervous spells and at such times she would gasp for breath. I did not try to talk business with her during that time because she could not have talked it. We did not carry on any conversation in the room where she was. We did not bother her in any way at all, because any noise made her nervous and we could not do it on that account." Mrs. Diffy, a resident of Dallas and a sister of Mrs. Eula Farmer, testifying as to the latter's condition in May, said: "When I got there I did not think she would live a week. She was confined to her bed. We had to keep everything just as quiet as could be. We could not carry on any conversation at all where she was. She was in that condition...