Gavin v. Webb

• Decision Date: 06 November 1936
• Docket Number: No. 13441.,13441.
• Citation: 99 S.W.2d 372
• Parties: GAVIN et ux. v. WEBB et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

99 S.W.2d 372

GAVIN et ux. v. WEBB et al.^*

No. 13441.

Court of Civil Appeals of Texas. Fort Worth.

November 6, 1936.

Rehearing Denied December 11, 1936.

Appeal from District Court, Hunt County; Newman Phillips, Judge.

Suit by Howard Webb and others against Joe D. Gavin and wife. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Clark, Harrell & Clark, of Greenville, for appellants.

Mayo W. Neyland and Morgan & Morgan, all of Greenville, for appellees.

SPEER, Justice.

A. G. Lantznester and his wife, Tennessee Lantznester, lived for many years in Hunt county, Tex., and there accumulated a sizeable estate consisting in the main of farm lands, residential and business property in Greenville, a business house in Oklahoma, along with valuable stocks and bonds, besides money in the banks.

A. G. Lantznester died testate on April 2, 1932, bequeathing to his wife all his property. The wife, Tennessee Lantznester, executed a will of date July 28, 1932, by the terms of which she bequeathed to her daughter Ella Belle, now Ella Belle Gavin, certain property, and later deeded to her the real estate and delivered the personalty. There is no controversy in this suit as to any part of this property and we need not further notice it.

Mrs. Lantznester further bequeathed all the residue of her estate in equal parts, share and share alike, to her grandchildren, Albert L. Webb, Howard C. Webb, Jr., Gordon Webb, and Clara Webb Middelkamp; they being designated as the only children or the descendants of children of a deceased daughter. Thereafter, on July 29, 1933, Tennessee Lantznester executed a codicil to her will.

On June 15, 1934, Mrs. Lantznester executed and delivered a deed to Joe D. Gavin to lot 1, block 6, in the original town of Greenville, upon which was situated a brick building; 84 acres of land in one tract and 40 acres in another tract in Hunt county, Tex. The property conveyed to Joe D. Gavin was a part of the "residue" of her property originally willed to the Webb children after the bequests therein set out to the daughter Ella Belle. The appeal before us grows out of a suit involving the validity of the conveyance to Joe D. Gavin.

Mrs. Tennessee Lantznester died on June 25, 1934, leaving the original will, the codicil thereto, and having executed the deeds above mentioned.

Howard Webb, Albert Webb, Gordon Webb, and Clara Webb Middelkamp, joined by her husband, R. L. Middelkamp, instituted this suit against Joe D. Gavin and his wife, Ella Belle Gavin, in one count in form of trespass to try title of the lands described in the deed from Mrs. Lantznester to Joe D. Gavin, and in another count or in the alternative for cancellation of the said deed, alleged the title did not pass thereunder for the reasons shown.

The plaintiffs alleged that at the time of the execution of her will and at all subsequent times Mrs. Lantznester was the fee owner of the lands in controversy up to the date of her death; that at the time she executed her will she was of sound and disposing mind and memory and in every way possessed of testamentary capacity; but that because of advanced age, continued serious illness, and various bodily and mental afflictions, she was not at the time of the execution of the deed to Joe D. Gavin competent mentally or physically to enter into such a contract and conveyance; and that no title passed thereunder.

Allegations were made that defendants conspired together to and did fraudulently induce Mrs. Tennessee Lantznester to execute the deed to Joe D. Gavin conveying the property in controversy. The conspiracy, and the means employed by defendants in the alleged perpetration of the fraud on Mrs. Lantznester, are elaborately and rather voluminously pleaded, and no good purpose will be served in a discussion of the case to go further into the details of the pleadings; but suffice it to say they are sufficient to authorize the introduction of testimony to make the issues upon which the case was decided.

The defendants denied generally and specially all of plaintiffs' allegations of fraud on their part that the conveyance to Joe D. Gavin was made by Mrs. Lantznester because he was the husband of her only living daughter and because he had been helpful to her and that she had previously expressed herself as being desirous of aiding him in some way in appreciation of his kindnesses, and that she executed the deed of conveyance with full knowledge of its contents and effect. They further answered in the usual form of not guilty of the trespasses alleged.

The will and codicil of Mrs. Lantznester were duly admitted to probate, and defendant Ella Belle Gavin qualified as independent executrix. The estate was administered, and the plaintiffs were delivered the part that came to them under the will and codicil, except that part previously conveyed by Mrs. Lantznester to Joe D. Gavin. Suit was immediately filed as herein shown to cancel the conveyance and to quiet the title to the lands, so conveyed, in the plaintiffs.

The case was tried to a jury on four special issues. These issues and the jury's answers were as follows:

"1. Do you find from a preponderance of the evidence that the defendant, Joe D. Gavin, as a means of and for the purpose of getting the property in controversy conveyed to him, represented to Mrs. Tennessee Lantznester as a fact that if the lands involved in this law suit went to her grandchildren by the terms of the will there would be a large Federal Inheritance tax or taxes chargeable against said lands.

"Answer yes or no as you may find. Answer: `Yes.'"

"2. If you have answered `yes' to the above question and only in that event, you will answer the following question:

"Do you find from a preponderance of the evidence that the defendant, Joe D. Gavin, recommended to Mrs. Tennessee Lantznester that as a means of avoiding payment of the inheritance tax on said lands that she convey the same to him and that at her death he would reconvey the same to her grandchildren, the plaintiffs in this case? Answer yes or no, as you may find. Answer: `Yes.'"

"3. If you have answered `yes' to the two questions above and only in that event, then you will answer the following question:

"Do you find from a preponderance of the evidence that Mrs. Tennessee Lantznester believed the statements, if any, made to her by Joe D. Gavin, relative to taxes, as asked about in the questions above? Answer yes or no as you may find. Answer: `Yes.'"

"4. If you have answered `yes' to the last question above then do you find from a preponderance of the evidence that Mrs. Tennessee Lantznester believed said statements as to inheritance taxes and relied upon said statement, if any, that he would convey the property to her grandchildren at her death and was caused thereby to execute the deed to Joe D. Gavin, in evidence before you? Answer yes or no, as you may find. Answer: `Yes.'"

The court rendered judgment for plaintiffs against defendants canceling the deed of Mrs. Lantznester to Joe D. Gavin and quieting the title of the land in plaintiffs as prayed for.

The defendants, appellants here, moved for a new trial; the motion being overruled, they have perfected their appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District, and by order of the Supreme Court the case has been transferred to this court for consideration.

There are no assignments of error contained in appellants' brief, designated as such. In the transcript there appears an amended motion for new trial consisting of 39 paragraphs; there were no separate assignments of error filed in the trial court nor brought to us in the brief. Under Rev.Civ.St. art. 1844, as now amended, Acts 1931, c. 75, § 1 (Vernon's Ann.Civ. St. art. 1844), it is not necessary that assignments be filed in the lower court, but the rule requiring that assignments of error be copied into the appellants' brief was not obviated by the amendment of the article referred to. By Supreme Court Rule 101a it is provided that in all cases where motion for new trial is filed, such motion shall constitute the assignments of error.

Rule 32 for Courts of Civil Appeals is as follows:

"The brief shall contain verbatim copies of such of the assignments of error filed in the trial court and produced in the transcript as are relied on in the appeal, but their original numbering may be disregarded.

"They shall be set out at the back of the brief, but, if desired they may immediately follow the statement of the case."

Our Supreme Court has held that a substantial copy of the assignment is sufficient if brought forward in the brief. Clonts et al. v. Johnson, 116 Tex. 489, 294 S.W. 844, 846; Albritton v. Commerce Farm Credit Co. (Tex.Civ.App.) 9 S.W.(2d) 193, affirmed (Tex.Com.App.) 17 S.W.(2d) 784; Natkin Eng. Co. v. Aetna Casualty Co. (Tex.Com.App.) 37 S.W.(2d) 740. In the case of Clonts v. Johnson, supra, the court said: "Where an appellant or plaintiff in error wholly fails to copy any assignments of error in his brief, the Court of Civil Appeals should confine its consideration of the case to those fundamental errors apparent on the face of the record. Its authority to revise the action of the lower court is limited to those questions (not fundamental) duly assigned as error, and it has no discretion, even though it thinks the ends of justice require such course, to substitute a method of its own for reviewing the judgment of the lower court for that method prescribed by the lawmaking power. * * * Rule 32, Court of Civil Appeals and 101a, district and county courts; Seby v. Craven Lumber Co. (Tex.Civ.App.) 259 S.W. [1093] 1104; * * * Green v. Shamburger (Tex.Civ. App.) 243 S.W. 601; Carey v. Texas Pac. Coal & Oil Co. (Tex.Civ.App.) 237 S.W. 309; Green v. Hall (Tex.Com.App.) 228 S.W. 183."

It will be seen from the authority from which we have quoted that it is jurisdictional to this court that the rules of procedure be complied with, and that it is not within...