Garza v. De Leon

• Decision Date: 04 April 1946
• Docket Number: No. 2668.,2668.
• Citation: 193 S.W.2d 844
• Parties: GARZA et al. v. DE LEON et al.
• Court: Texas Court of Appeals

193 S.W.2d 844

GARZA et al. v. DE LEON et al.

No. 2668.

Court of Civil Appeals of Texas. Waco.

April 4, 1946.

Appeal from District Court, Bexar County; C. K. Quin, Judge.

Suit by Santos Garza and others against Carlota Garza de Leon, Angelina de Leon, and others, for partition of certain lots and for certain personalty, wherein Carlota Garza de Leon filed a cross-action. From a judgment adverse to the plaintiffs and Angelina de Leon, a minor, and in favor of Carlota Garza de Leon on her cross-action and awarding title and possession of the property to her, the plaintiffs appeal.

Judgment affirmed.

Chas. T. Haltom, of San Antonio, for appellants.

Loughridge & Edwards, of San Antonio, for appellees.

TIREY, Justice.

Plaintiffs brought this suit for partition of Lot 62, Block 3, City Block 6233, in San Antonio, Texas, and for certain personal property not pertinent here. The cause was tried to the court without the aid of a jury and upon conclusion of the evidence the court took the matter under advisement and thereafter found against all plaintiffs and the defendant, Angelina de Leon, a minor, and found in favor of Carlota Garza de Leon on her cross-action and awarded the title and possession of said property aforesaid to her. All of the plaintiffs and the minor, acting through her guardian ad litem, excepted to the judgment, but only the plaintiffs perfected their appeal. No request for findings of fact and conclusions of law were made and none was filed.

Appellants first point is: "The court committed reversible error in not requiring cross-plaintiff to plead more fully the facts of the purported resulting trust, or, specifically, the error of the court in overruling the special exceptions set out in Plaintiffs' First Supplemental Petition." We overrule this contention.

Defendants (Carlota) in their first amended original answer and cross-action, specially pleaded substantially that the property in question belonged to her "absolutely" and that the title thereto was taken in the name of her mother, Petrolina B. de Garza, at the time of its purchase as a matter of convenience because such defendant was at that time a minor; that such property was purchased from Santiago Botello and wife, Francisca P. Botello, on May 16, 1933, for the sum of $300, which sum of money belonged to and was the property of defendant, Carlota Garza de Leon, and had been entrusted to her said mother because said defendant was about thirteen years of age at the time, and further that "under the circumstances hereinabove set forth, there resulted a trust in favor of the said defendant, and she is the real owner thereof; and that neither the plaintiffs nor defendant, Angelina de Leon, have any interest therein." In her cross-action against all parties plaintiffs and defendant minor, she alleged among other things: "That heretofore, to-wit, on or about May 16, 1933, Santiago Botello and wife, Francisca P. Botello, executed and delivered a deed conveying Lot 63, Block 3, NCB 6233 in the City of San Antonio, Texas, to Petrolina B. de Garza, the mother of cross-plaintiffs and all of the cross-defendants except Angelina de Leon, who is her granddaughter; that the consideration for such conveyance was the sum of $300.00 and the money so paid therefor was the property of and belonged to the cross-plaintiff Carlota Garza de Leon, who at the time of such transaction was a minor thirteen years of age; that such funds belonging to the said cross-plaintiff was the full and complete consideration for such conveyance. That by reason of the aforesaid facts, there resulted a trust in favor of cross-plaintiff Carlota Garza de Leon in such property and that she is the real owner thereof, and that the aforesaid cross-defendants who are asserting some character of claim to such property have no interest whatsoever therein." She prayed for title and possession. Plaintiffs, in their first supplemental petition, in paragraph (1), denied the allegations of the first amended answer and cross-action, except (a) the date the property was deeded to Petrolina B. de Garza; and (b) that Petrolina B. de Garza is the mother of plaintiffs and all of the defendants except Angelina de Leon, a minor. These exceptions from (a) through (f) assail the defendants' pleading substantially on the ground that it did not state whether the trust was in writing or parol; that it did not specifically state how Carlota acquired the $300, nor how the money was paid, nor the date the alleged trust should end; nor state the reason why Carlota never required her mother to deed the property to her when she married or when she reached her twenty-first birthday; nor did said pleading state whether Petrolina ever admitted that she was holding the land in trust for Carlota.

We overrule these contentions for two reasons: (1) "In drafting a pleading the ultimate rather than the evidentiary or primary facts should be alleged * * *." 33 T. J. pp. 436, 437, par. 22, and collation of authorities. See also: Taylor v. Catalon, Tex.Civ.App., 155 S.W.2d 965, points 8 and 9; Richards v. Frick-Reid Supply Corporation, Tex.Civ.App., 160 S.W.2d 282, points 5 and 6. (2) It is obvious that said special exceptions were not filed in due order of pleading, in that the general denial preceded the special exceptions. See Rules 80 and 81, Texas Rules of Civil Procedure.

Point 2 assails the judgment because the court did not find that the cross-plaintiffs were guilty of laches. Plaintiffs attempt to raise such issue by special exception in their amended pleading and then plead as a defense that defendants "are guilty of laches in asserting her claim to all of said property, and therefore said claim should be denied." The special exception was not good for the reason we have heretofore stated. The issue thus presented by plaintiffs' pleading is an affirmative defense to the defendants' right to recover the property, or it may be called a plea in bar. Rule 94, Texas Rules of Civil Procedure. It follows that plaintiffs had the burden of establishing such defense by a preponderance of the evidence. Since the trial court rendered judgment for Carlota, it follows that the trial court was of the opinion that the plaintiffs had not discharged their burden. We have considered the evidence carefully and we see no reason to disturb the judgment in this behalf. Wright v. O'Neal, Tex.Civ.App., 161 S.W. 2d 348, points 2-3, p. 350, and for collation of authorities. See also La Force v. Bracken, Tex.Civ.App., 163 S.W.2d 239; Hardin v. Abbey, 57 Tex. 582; 27 T.J. pp. 22, 30 and 33.

Point 4 is substantially to the effect that the court committed reversible error because he perm...