Gabb v. Boston

• Decision Date: 06 June 1912
• Citation: 149 S.W. 569
• Parties: GABB et al. v. BOSTON et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

149 S.W. 569

GABB et al. v. BOSTON et al.^†

Court of Civil Appeals of Texas. Galveston.

June 6, 1912.

Rehearing Denied June 27, 1912.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by Mrs. L. B. Gabb and others against Monroe Boston and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

J. M. Gibson, R. H. Holland, and Jno. B. Warren, all of Houston, for appellants. E. P. & Otis K. Hamblen, Edward H. Bailey, William W. Anderson, and Ingham S. Roberts, all of Houston, for appellees.

PLEASANTS, C. J.

This is an action of trespass to try title brought by Mrs. L. B. Gabb against the appellee Monroe Boston and a number of other defendants to recover an undivided one-half interest in a tract of 94¾ acres of land on the Luke Moore league in Harris county.

The defendants answered by general demurrer and plea of not guilty and by special pleas, the nature of which will be hereinafter indicated. The cause was submitted to a jury in the court below upon special issues, and upon the answers of the jury to the questions propounded to them by the court judgment was rendered in favor of defendants.

The evidence shows that the 94¾ acres of land were, on February 7, 1884, owned by and in the possession of Thomas R. Farrell. On the date mentioned, said Farrell signed and acknowledged a deed, conveying the 94¾ acres to his infant son, B. F. Farrell. This deed was duly recorded in the Deed Records of Harris county on February 8, 1884. The evidence is conflicting as to the circumstances under which the deed was executed and recorded, and the person by whom it was filed for record; but there is testimony sufficient to sustain the finding that Thomas R. Farrell intended that the deed should take the place of a will, and should not be recorded or take effect until after his death. At the time he executed the deed, he was in a precarious condition of health and consulted his attorney in regard to preparing his will, and was advised by the attorney to make the deed, instead of the will, because in the opinion of the attorney, a will was "easier to break." He testified that the deed was never delivered to B. F. Farrell, and that he instructed his attorney, with whom he left the deed after he had executed it, not to record it until after his death, and that he did not know that it was recorded until several months after he recovered from the spell of sickness from which he was suffering at the time he executed the deed. At the time this deed was executed, B. F. Farrell, the grantee, who is the natural son of the grantor, Thomas R. Farrell, was four years old. T. R. Farrell always claimed to be the owner of the land, held possession of it, and never recognized any right or title in B. F. Farrell.

On September 18, 1900, B. F. Farrell conveyed the land to C. J. Ochse for a recited consideration of $3,300 cash and a note for $1,500, due in two years, with interest at the rate of 10 per cent. per annum. At the time this conveyance was made to Ochse, the appellant Mrs. Gabb was his wife. On December 24, 1900, Mrs. Gabb filed a suit for divorce and partition of community property against her then husband, the said C. J. Ochse. The 94¾ acres of land conveyed by B. F. Farrell to C. J. Ochse were claimed by her in this suit as community property of herself and husband. On January 29, 1901, T. R. Farrell and B. F. Farrell filed suit against C. J. Ochse to cancel the deed from B. F. Farrell to Ochse, on the ground that it was without consideration and was obtained by fraud and misrepresentation. It is also alleged in the original petition in said suit that B. F. Farrell had no title to the land conveyed by him to Ochse, but that said land was owned by the plaintiff T. R. Farrell, and the said Ochse knew, at the time he procured the deed from B. F. Farrell, that T. R. Farrell was in possession of the land and held the superior title thereto.

On March 15, 1901, the following judgment was rendered in the divorce suit before mentioned: "Be it remembered, that on this the 15th day of March, 1901, the above numbered and entitled cause came on to be heard, and then the plaintiff by her attorney announced ready for trial, and the defendant by his attorney announced ready for trial, and the plaintiff in open court dismissed as to her demand for partition of community property, and dismissed as to her demand for care and custody of the children by said marriage, and, no jury having been demanded, this cause was submitted to the court for adjudication upon the matters of fact, as well as of law; and the court having heard the pleadings, evidence, and argument of counsel, and being fully advised, herein finds the material allegations in plaintiff's petition true, and finds for plaintiff. It is therefore considered by the court, and so ordered, adjudged, and decreed by the court, that the bonds of matrimony heretofore existing between Mrs. L. B. Ochse, plaintiff, and C. J. Ochse, defendant, be, and the same are here now forever dissolved, canceled, and annulled. It is further ordered that all costs in this behalf expended are adjudged against defendant, C. J. Ochse, for which let execution issue."

At the time this judgment was rendered, the appellant (plaintiff in said judgment) knew that the suit of the Farrells against her husband, C. J. Ochse, for the cancellation of said deed had been brought and was then pending.

On June 11, 1901, T. R. Farrell filed an amended petition in the suit against C. J. Ochse, in which he repeats the allegations of fraud on the part of Ochse in procuring the deed from B. F. Farrell, and also the allegations that the title to the land is in him and was never in B. F. Farrell, and that the deed from T. R. Farrell to B. F. Farrell was never delivered and was recorded by mistake. He prays that B. F. Farrell be made a party defendant, and that both the deed from T. R. Farrell to B. F. Farrell and the deed from B. F. Farrell to C. J. Ochse be canceled and held for naught, and cloud cast upon his title by said deeds be removed. C. J. Ochse answered in this suit by general and special exceptions and general and special denials of the allegations of the petition, and by affirmative plea alleged title to the land and prayed for its recovery. B. F. Farrell filed no answer to the amended petition of T. R. Farrell, asking judgment canceling the deed from said T. R. Farrell to him. The pleadings of the parties in this suit were amended several times; but the causes of action asserted and the defenses remained the same. Mrs. Ochse was not made a party to the suit.

On May 28, 1902, B. F. Farrell conveyed the 94¾ acres of land to J. M. Cobb. On May 29, 1902, J. M. Cobb filed the following petition in intervention in said suit: "Now comes J. M. Cobb, a resident citizen of Harris county, Texas, leave of court being first had and obtained, files this his plea of intervention, and shows to the court that he is the legal owner in fee simple of the land sued for in this suit, and that heretofore, to wit, on the 25th day of May, 1902, he was in the lawful possession of the premises sued for, and that the plaintiff, T. R. Farrell, and the defendant C. J. Ochse and B. F. Farrell unlawfully entered upon said premises and ejected this plaintiff therefrom and now withholds the possession thereof from him. Plaintiff further shows that the land so unlawfully withheld from him is described as follows: [The description is here omitted, because it is the same as the description of the land involved in this litigation and set out in plaintiff's original petition.] Plaintiff also shows that said land was, by deed, dated February 7, 1884, conveyed by plaintiff, T. R. Farrell, to B. F. Farrell for the sum of six hundred ($600) dollars, and that said land was thereafter, by general warranty deed, for a valuable consideration, conveyed to this intervening plaintiff by B. F. Farrell, that the defendant C. J. Ochse is also setting up claim to said land by deed purporting to have been made to him by B. F. Farrell, but that said deed was procured by fraud and without any consideration, but, as it now appears upon the record of Harris county is a cloud upon this intervening plaintiff's title. Wherefore, the premises considered, this intervening plaintiff prays that he have judgment against T. R. Farrell and C. J. Ochse for the land described in this intervention, and that the pretended deed from B. F. Farrell to C. J. Ochse, dated on the ____ day of ____, ____, and recorded in volume ____, on page ____, of the Deed Records of Harris county, Texas, be canceled, and that this intervener have judgment for general and special relief for costs of court, and for all of which he will ever pray."

This suit was finally disposed of on the 3d day of June, 1902, by the rendition of the following judgment: "T. R. Farrell v. C. J. Ochse et al. No. 30,452. On this 3d day of June, 1902, came on for trial the above entitled and numbered cause, when came all parties to this suit in person and by their attorneys, the demand for jury having been withdrawn, and the defendant C. J. Ochse, by his attorneys, having announced to the court that he did not care to defend said cause further, and the plaintiff, T. R. Farrell, and defendant B. F. Farrell, by their attorney, agree that the intervener, J. M. Cobb, is entitled to the land sued for herein: It is therefore ordered, adjudged, and decreed that the plaintiff, John M. Cobb, do have and recover of and from T. R. Farrell,...