Garner v. Risinger

• Decision Date: 04 April 1904
• Parties: GARNER v. RISINGER.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

81 S.W. 343

GARNER v. RISINGER.^*

Court of Civil Appeals of Texas.

April 4, 1904.

Appeal from District Court, Red River County; Ben H. Denton, Judge.

Action by J. D. Risinger and wife against J. R. Garner and others. After death of the wife, judgment was rendered for the surviving plaintiff, and defendant Garner appeals. Affirmed.

This is a suit to cancel a deed and to remove cloud from title, resulting in a judgment for the plaintiff, and J. R. Garner, one of the defendants, has appealed. The trial judge filed the following conclusions of fact and law:

"(1) I find, from the admissions of plaintiffs and defendants, that on the 19th day of October, 1901, the title to the land described in the plaintiffs' petition was in the plaintiffs. (2) I find that since the institution of this suit one of the plaintiffs, to wit, Lucy G. Risinger, has died, and that she willed all of her interest in the land described in the plaintiffs' petition to the plaintiff J. D. Risinger, and that said will has been duly and legally probated. (3) I find from the evidence that on the 19th day of October, 1901, plaintiffs, J. D. Risinger and Lucy G. Risinger, made a deed to the land described in the plaintiffs' petition to the defendant Minnie Q. White; that the consideration specified in said deed was $600; that nothing was paid by the said Minnie Q. White for said land, and that said deed was never delivered to her by the said J. D. Risinger, nor Lucy G. Risinger, nor with their consent; and that said deed was taken out of their possession without their knowledge or consent by Minnie Q. White, and that the same was by her filed for record in the county clerk's office of Red River county, Tex., on the 3d day of January, 1902. (4) I find that on the 15th day of January, 1902, the defendant Minnie Q. White sold said land to the defendant James R. Garner for the sum of $600, which was paid by him, and that at the time he bought said land and paid for the same he did not know that said deed from J. D. Risinger and wife to the defendant Minnie Q. White had never been delivered to her, and had no notice of the trouble between them. (5) I find that, ever since said deed from J. D. Risinger and wife to Minnie Q. White purports to have been made, the plaintiff and his tenants have been in the possession of the land, and have paid all taxes thereon, and that neither of the defendants have ever been in possession of said land or paid any taxes thereon.

"I therefore conclude, as a question of law, that, said deed never having been delivered by the plaintiffs to the defendant Minnie Q White, nor to any one else for her, no title was passed or has ever passed from the plaintiffs, and that the defendant Garner got no title by reason of his purchase from the defendant Minnie Q. White. I therefore find for the plaintiff against both of the defendants for the cancellation of the deed from J. D. Risinger and wife to Minnie Q. White, and for plaintiff for the land described in plaintiff's petition, and for costs of suit."

W. S. Thomas and J. S. Patrick, for appellant. Chambers, Doak & Kennedy, for appellee.

KEY, J. (after stating the facts).

1. The first assignment is addressed to the...