Fox v. Lewis, 10812

• Decision Date: 01 March 1961
• Docket Number: No. 10812,10812
• Citation: 344 S.W.2d 731
• Parties: Bera Lewis FOX et vir et al., Appellants, v. H. O. LEWIS et al., Appellees.
• Court: Texas Court of Appeals

Page 731

344 S.W.2d 731

Bera Lewis FOX et vir et al., Appellants, v. H. O. LEWIS et al., Appellees.

No. 10812.

Court of Civil Appeals of Texas, Austin.

March 1, 1961.

Rehearing Denied March 29, 1961.

H. T. McBrayer, Julius F. Franki, Austin, for appellant.

Hammond & Hammond, Burnet, for appellee.

HUGHES, Justice.

Appellants Bera Lewis Fox and husband L. C. Fox, Ruby Lewis Bolm and husband H. S. Bolm sued appellees H. O. Lewis and Cecil C. Lewis, the brothers of Mrs. Fox and Mrs. Bolm, to cancel an instrument dated February 9, 1953, purportedly executed by the father and mother, F. P. Lewis and wife, Florence M. Lewis, to their sons A. T. Lewis and H. O. Lewis, and under which instrument appellees claim full title to the approximately 450 acres of land in Burnet County involved in this suit. Upon obtaining such relief, appellants also sought partition of the property between themselves and appellees in accordance with their respective interests therein.

The cause was tried to a jury which made these findings:

1. Mrs. Florence M. Lewis was not of unsound mind on February 9 and 10, 1953, when the deed sought to be cancelled was signed and acknowledged.

2. That on the same dates F. P. Lewis intended that such deed should be delivered to H. O. Lewis and A. T. Lewis, or either of them, for the purpose of vesting title to the lands therein described in accordance with the terms of such deed.

3. That on February 9 and 10, 1953, when the deed was signed and acknowledged, Mrs. Florence M. Lewis did not intend that such deed should be delivered to either H. O. or A. T. Lewis for the purpose of vesting title to the described lands in them according to the terms of the deed.

4. That after February 10, 1953, and before the death of Mrs. Florence M. Lewis, F. P. Lewis gave such deed to A. T. Lewis with the intention of relinquishing control over it, and with the purpose that it should become effective according to its terms.

5. That the delivery of such deed, as found in 4 above, was authorized either expressly or impliedly by Mrs. Florence M. Lewis.

6. We set out this issue and answer in full:

'Do you find from a preponderance of the evidence that the deed in question dated February 9th, 1953, was never delivered by F. P. Lewis and Mrs. Florence M. Lewis (or by either of them acting with authority, express or implied, of the other), to H. O. Lewis and A. T. Lewis, or either of them?

'Answer 'Yes' or 'No'.

'We, the Jury, answer: No.'

7. That F. P. Lewis was not caused to execute such deed by the exercise of undue influence on him by A. T. and H. O. Lewis, or either of them.

8. Similarly, it was found that undue influence was not practiced upon Mrs. Florence M. Lewis.

9. That A. T. and H. O. Lewis, in good faith, intended to perform their obligation, contained in the deed of February 9, 1953, to take care of their father and mother during their lives.

10. That A. T. Lewis and H. O. Lewis did not fail to substantially perform the obligation to care for their parents during their lives.

Based on this verdict, judgment was rendered that appellants take nothing by their suit.

This is the second trial of this case. The first trial resulted in a mistrial because the jury failed to answer all issues submitted to it.

Appellants' first point is that the Trial Court erred in declaring a mistrial of the first trial because the verdict of the jury in that trial, although incomplete, was sufficient to sustain a judgment in their behalf.

The merits of this point are briefed at length by the parties, but neither affirms nor denies our right or duty to consider this point.

We have concluded that we have no right, and hence no duty, to determine on this appeal the validity of the order declaring a mistrial on the first trial.

The order declaring a mistrial is an interlocutory order and not appealable. W. T. Rawleigh Co. v. Sims, Tex.Civ.App., Amarillo, 108 S.W.2d 332, no writ history.

The rendition and entry of judgment upon a sufficient jury verdict is a ministerial act and this Court, under the authority of Art. 1824, Vernon's Ann.Civ.St., may, by mandamus, compel a trial judge to render judgment under such circumstances. McGregor v. Allen, Tex.Civ.App., Amarillo, 195 S.W.2d 945, writ dismissed.

It is our opinion that the remedy afforded by Art. 1824, in these circumstances, is exclusive.

If we were now to hold that judgment should have been rendered on the jury verdict in the first trial, then this cause would have to be reversed in order that a motion for new trial could be filed and determined as to the first trial, and it is conceivable that this second trial would be all wasted effort. This would be an imposition upon the Trial Court which should not be permitted.

By failing to invoke a plain and adequate remedy for testing the sufficiency of the jury verdict on the first trial, we hold that such question cannot now be raised.

While the question is not precisely the same, there is a similarity between reviewing the Court's action in granting a new trial and a mistrial in a subsequent trial. The 'new trial' problem was discussed at length by this Court in Ebaugh v. State, 342 S.W.2d 221, and it was held that no such review could be made.

If we entertained and sustained the point presented we would, in effect, be granting a writ of mandamus. While this writ is a legal writ its issuance is controlled by equitable principles, and will not be granted in aid of one who is guilty of laches. Callahan v. Giles, 137 Tex. 571, 155 S.W.2d 793. Clearly appellants are guilty of laches. They have not yet specifically sought the relief to which they claim they are entitled. In the meantime, they have consumed the time of the courts and have watched the position of the parties change. This is laches.

Appellants' second and third points are jointly briefed. A special issue was requested and refused inquiring if the instrument of February 9, 1953, was signed by Florence M. Lewis voluntarily and of her own free will by placing her mark thereon as her signature. Appellants assert that this was a material fact issue and that the Court erred in not submitting this issue and in assuming the contrary in his charge.

Appellants pleaded these facts ¹ and conceding that there is some evidence to make them issuable, we are of the opinion that they do not present a controlling issue which should have been submitted to the jury.

A favorable answer to this issue would not have benefited appellants for the reason that Florence M. Lewis by duly acknowledging the execution of the instrument as authorized by law ratified and adopted as her signature mark the signature mark on the instrument even though it may have originally been a forgery. Stout v. Oliveira, Tex.Civ.App., El Paso, 153 S.W.2d 590, writ dism., w. o. m.

The instrument in suit was purportedly signed on February 9, 1953 and acknowledged on February 10, 1953. The acknowledgment is in proper form, and there is no attack made on such acknowledgment by pleading.

It is suggested that there is some evidence to the effect that Florence M. Lewis did not appear before the Notary whose certificate of acknowledgment appears on the instrument for the purpose of acknowledging it. It is not contended that the evidence conclusively established this nonappearance as a fact.

It is our opinion that the failure to plead invalidity of the notarial certificate prevents our consideration of a factual issue regarding it. See Matthews v. General Accident Fire & Life Assurance Corp Ltd., 343 S.W.2d 251, Supreme Court of Texas, decided January 25, 1961.

If a fact issue was made by the evidence regarding the appearance of Florence M. Lewis before the Notary, this issue was waived by failure to plead it. See Small v. Daily, Tex.Civ.App., Galveston, 72 S.W.2d 663, writ dism.

That the Court in its charge may have assumed that Florence M. Lewis signed the instrument in suit, was an assumption of an immaterial fact, and in our opinion, if error, was harmless error under Rule 434, Texas Rules of Civil Procedure.

Appellants' fourth point is that the Court erred in failing to submit the following requested special issue:

'Do you find from a preponderance of the evidence that F. P. Lewis and wife, Florence M. Lewis, never intended for the written instrument in question, dated February 9, 1953, to become operative as a conveyance until after the death of the survivor of them?'

Accompanying this issue was the following definition of conveyance:

'By the term 'conveyance' as used in this charge is meant the act or instrument by which property in real estate is transferred from one or more persons to one or more persons, and whether the estate granted, if any, in such real estate be one of present or future enjoyment.'

Appellants' fiftn point, briefed with point four, is that the Court erred in assuming in its charge, over proper objections, that the instrument in suit was a deed, for the reason that there was evidence from which such instrument could have been held testamentary in nature.

The Court, in its charge, defined 'conveyance' as follows:

'By the term 'conveyance,' wherever used in this charge, is meant a written instrument whereby the grantor or grantors named therein transfer to the grantee or grantees named therein some right, title or interest in real estate or real property.'

The jury made findings, previously stated, that the 'deed' in suit was made for the purpose of vesting title to the land described in it in H. O. and A. T. Lewis, 'according to the terms of the deed.'

We do not find that the Court used the word 'conveyance,' after having defined it, in any of the issues. The word used in them was 'deed.'

We think it obvious that by the word 'deed,' the Court, in its charge, meant to attribute to it the definition of 'conveyance,' and we believe that the jury must have so considered it.

It is our opinion that the definition of the word 'conveyance,' by appellants because it...