Farrell v. Comer

• Decision Date: 31 May 1935
• Docket Number: No. 13171.,13171.
• Citation: 84 S.W.2d 300
• Parties: FARRELL v. COMER.
• Court: Texas Court of Appeals

84 S.W.2d 300

FARRELL v. COMER.

No. 13171.

Court of Civil Appeals of Texas. Fort Worth.

May 31, 1935.

Appeal from District Court, Tarrant County; Marvin H. Brown, Judge.

Trespass to try title by Everett B. Comer against H. T. Farrell. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Shelby S. Cox and Wm. M. Cramer, both of Dallas, for appellant.

S. C. Rowe, of Fort Worth, for appellee.

DUNKLIN, Chief Justice.

This suit was instituted by Everett B. Comer against H. T. Farrell in trespass to try title to recover an undivided one-eighth interest in certain real estate described as lot 5 and the north 24 feet of lot 4 in block 50, situated in the city of Fort Worth, Tex. Judgment was rendered in favor of the plaintiff, and the defendant has appealed.

Plaintiff claimed title under the following instruments which were introduced in evidence: A deed from Mary Bell Boaz, a feme sole, to Clement A. Boaz, L. B. Comer and wife, Ola Boaz Comer, Ernest O. Boaz, and Jessie Boaz Gumm. The consideration recited in the deed was $10 and other considerations paid to the grantor by the grantees, and the deed conveyed to L. B. Comer and wife, Ola Boaz Comer, together, an undivided one-fourth interest in the lot in controversy. That deed was dated December 23, 1919, duly acknowledged and recorded in the deed records of Tarrant county on March 13, 1920. A deed with warranty of title, dated November 8, 1923, executed and duly acknowledged before a notary public, by L. B. Comer to plaintiff, Everett B. Comer, conveying to the grantee all of grantor's interest in the property theretofore conveyed to L. B. Comer and wife by Mary Bell Boaz by the deed mentioned above, dated December 23, 1919. The deed so executed by L. B. Comer was for the recited consideration of "the sum of $10.00 cash paid and love and affection" for the grantee, Everett Boaz Comer. That deed was filed for record in the office of the county clerk of Tarrant county on December 18, 1930, and duly recorded.

In his answer, defendant attacked the deed from L. B. Comer to plaintiff Everett B. Comer on the ground that the same was not executed for a valuable consideration and was invalid as against the creditors of the grantor, L. B. Comer, and particularly H. T. Farrell, the holder of the judgment against him, which is hereinafter recited, it being alleged that H. T. Farrell became such a creditor before the delivery of said deed, and that the execution of that deed was for the purpose of hindering, delaying, and defrauding H. T. Farrell, a creditor, and further that L. B. Comer has no other property out of which the judgment can be collected. The answer concludes with a prayer for a cancellation of that deed. To support that defense the defendant introduced the following instruments:

A judgment against L. B. Comer and W. V. Galbreath, jointly and severally, with an award of execution in favor of H. T. Farrell for the sum of $4,034.05, being the amount of attorneys' fees and costs in a certain suit No. 82107-B, entitled L. B. Comer et al. v. H. T. Farrell et al., in the district court of the Forty-Fourth judicial district of Dallas county, Tex., dated November 17, 1930.

Pluries execution issued on that judgment by the clerk of the district court of Dallas county to the sheriff or any constable of Tarrant county, commanding him to collect the amount of such judgment of L. B. Comer and others jointly liable therefor according to the terms of the judgment. That writ of execution was dated August 5, 1933, and the return thereon recites that it was duly executed on the 19th day of August, 1933, by levying on all the right, title, and interest of L. B. Comer in the lot described above, and by selling the same to the defendant, H. T. Farrell, for the sum of $100 for the purpose of satisfying such judgment, after duly advertising the same as required by the statutes.

A deed to H. T. Farrell, executed by the sheriff of Tarrant county, under and by virtue of said execution sale, dated October 3, 1933, and filed for record in the deed records of Tarrant county, October 16, 1933.

A lease to J. C. Penny Company, Inc., on the lot described above, of date February 15, 1929, executed by C. A. Boaz, E. O. Boaz, Mari Ola Comer and her husband, L. B. Comer, and Jessie Boaz Gumm and her husband, C. C. Gumm, as lessors. The lease recited that it was for a term of 28 years, beginning on March 1, 1929; with rentals payable monthly in advance and being $550 for the first 36 months and increasing thereafter according to a certain stated schedule. That lease was duly acknowledged by all the parties and was filed for record in the deed records of Tarrant county on March 2, 1929. That lease seems to have been issued in lieu of a prior lease that had been in force.

A "supplemental contract," date April 29, 1925, signed by the same parties as the above instrument, in favor of J. C. Penny Company, Inc., in which the lessors agreed to purchase and install a passenger elevator in the building covered by the lease. That instrument was likewise duly acknowledged by all the parties. It implies that a former lease had been executed prior to the one of date February 15, 1929, but the same does not appear in this record.

Everett B. Comer was the only witness introduced upon the trial of the case, and his testimony is shown in the record. The following facts were testified to by him: At the time of the trial, which was on January 9, 1934, he was 27½ years of age, and therefore he was 13 years of age at the time his grandmother, Mary Bell Boaz, executed the deed above referred to, and approximately 16 years old at the date of the deed to him by his father, L B. Comer. He has resided in Fort Worth all his life, where he attended public schools, and later attended college at Virginia Military Institute in Lexington, Va., and later attended the University of Texas in Austin. He first saw the deed from his father to him at the office of his grandmother in Fort Worth when he returned home from his first year at the Virginia Military Institute. The day after his return from Virginia, L. B. Comer, his father, took him to his grandmother's office in Fort Worth where there was an old safe that had been brought from a bank and equipped with 70 or 75 lock boxes. There his father handed him a key to a lock box which belonged to the plaintiff and his mother jointly. The plaintiff opened the box and there found three deeds, one of which was the deed to him from his father, L. B. Comer. Plaintiff read over the deed and put it back in the lock box from whence he had taken it. The lock box was used by him and his mother, where they kept their papers, and in which plaintiff kept his small trinkets and coins. After reading the deed from his father, he replaced it in the box, which he locked, and took the key to his mother. ...