Guedry v. Jordan

• Court: Texas Court of Appeals
• Writing for the Court: Hightower
• Citation: Guedry v. Jordan, 268 S.W. 191 (Tex. App. 1924)
• Decision Date: 26 November 1924
• Docket Number: (No. 1100.)
• Parties: GUEDRY v. JORDAN et ux.

Page 191

268 S.W. 191

GUEDRY v. JORDAN et ux.

(No. 1100.)

Court of Civil Appeals of Texas. Beaumont.

November 26, 1924.

Rehearing Denied December 17, 1924.

Appeal from District Court, Hardin County; J. L. Manry, Judge.

Action by G. P. Guedry, administrator of the estate of S. Guedry, deceased, against R. O. Jordan and wife. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Thos. B. Coe, of Kountze, W. W. Cruse and Oswald S. Parker, both of Beaumont, for appellant.

A. L. Bevil, of Kountze, and E. B. Pickett, Jr., of Liberty, for appellees.

HIGHTOWER, C. J.

On the 17th day of March, 1921, S. Guedry, an old gentleman 84 years of age, and a resident of Hardin county, Tex., for many years, died in that county, intestate, leaving no wife or children, but leaving several brothers and nephews as his nearest of kin. On the 7th of March, 10 days before his death, S. Guedry, who for brevity will be hereinafter called Guedry, executed a deed to Mrs. Mary Emma Jordan, wife of R. O. Jordan, the deed being in form a general warranty deed, purporting to convey to Mrs. Jordan 150 acres of land in Hardin county at that time owned by Guedry, and fully described in the deed, and on the following day, March 8th, this deed was duly acknowledged by Guedry before W. H. Cavitt, a notary public in and for Hardin county, Tex. This deed contained, however, after the granting clause, the following reservation:

"Except, however, that the grantor herein reserves, and it is hereby expressly agreed that he shall have, for himself and assigns, the full possession, benefit, and use of the above described (150 acres) premises, as well as of the rents, issues, and profits thereof, for and during his natural life."

This deed was filed for record in Hardin county on March 18, 1921, one day after Guedry's death, and was duly recorded. The consideration for the deed, as recited, was $1, the receipt of which was acknowledged, and "other good and sufficient considerations."

On the 10th day of March, 1921, 7 days before Guedry's death, he executed and delivered to R. O. Jordan the following written bill of sale:

"The State of Texas, County of Hardin.

"Know all men by these presents that I, S. Guedry, of the county of Hardin and state aforesaid, for and in consideration of the sum of fifty and no/100 and other considerations dollars to me in hand paid by R. O. Jordan, the receipt of which is hereby acknowledged, have bargained, sold, and delivered and by these presents do bargain, sell, and deliver unto the said R. O. Jordan of the county of Hardin and state of Texas the following described personal property in Hardin and Liberty county, Tex., to wit, one-half interest in the following property, to wit: All of my cattle and horses branded NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE located in the foregoing counties.

"And I do hereby bind my heirs, executors, administrators, and assigns, to forever warrant and defend the title to the said property unto the said R. O. Jordan and assigns, against every person whomsoever lawfully claiming, or to claim the same, or any part thereof.

"Witness my hand at Batson, Tex., this 10th day of March, A. D. 1921.

                                    S. Guedry
                

"Witnesses at request of grantor:

    "Dunk Fregia."
                

The brand shown in the bill of sale was the individual stock brand of Guedry, and was duly of record in his name. This bill of sale was never duly acknowledged for record by Guedry, and was never filed for record until March 29, 1921, 12 days after Guedry's death. While the bill of sale was never properly acknowledged for record, it was in fact, spread upon the records in Hardin county by the clerk of that county.

After Guedry's death G. P. Guedry, one of his nephews, was duly appointed administrator of his estate, and thereafter, as administrator of Guedry's estate, filed this suit in the district court of Hardin county against R. O. Jordan and his wife, Mary Emma Jordan, seeking to have the deed executed to Mrs. Jordan canceled and annulled and the cloud cast upon the title of the land therein described removed, and also seeking to have the bill of sale executed to R. O. Jordan canceled and annulled and to recover the cattle and horses therein mentioned, and some other personal property which the Jordans claimed was given Mrs. Jordan by Guedry before his death.

As grounds for the relief sought by him, the administrator, G. P. Guedry, alleged, in substance, that the deed to Mrs. Jordan and the bill of sale to Jordan were procured by fraud perpetrated by them upon Guedry, the deceased, and by the exercise of undue influence by Jordan and wife on Guedry, and further that Guedry, at the time of the execution of such instruments, did not have sufficient mental capacity to make and execute the same. The administrator further alleged that the deed and bill of sale were void, in that there was no consideration, or adequate consideration, paid, or contemplated to be paid, to Guedry for the same, and further, that Jordan and wife, and especially Jordan himself, sustained to Guedry such confidential and fiduciary relations as required the Jordans, and especially Jordan himself, in dealing with Guedry, to be fair and honest with him and to take no advantage of him by making an unreasonable and unfair deal with him, and that, in fact, Jordan and wife, and especially Jordan, did take advantage of Guedry in procuring the deed and bill of sale, and that such transactions were wholly unfair and unreasonable to Guedry, and should, therefore, be annulled and canceled and held for naught. This states, in substance, the issues made by the administrator's petition.

The defendants answered by general demurrer, several special exceptions, none of which are before us for disposition, and then denied generally and specially all the material allegations in the plaintiff's petition. Their answer also contained a cross-action in the form of trespass to try title for the recovery, as against the administrator, of the land described in the deed above mentioned.

The case proceeded to trial with a jury, but upon the conclusion of the evidence the trial court, upon motion of defendants, Jordan and wife, peremptorily instructed a verdict in favor of the defendants, and entered judgment upon the verdict so instructed to the effect that the plaintiff, administrator, take nothing by the suit, and that the defendants recover the land involved upon their cross-action. This appeal is prosecuted by the administrator upon the judgment so entered.

Appellant advances several propositions under proper assignments of error as reasons why the judgment should be reversed, and should be here rendered in his favor, both for the cancellation of the deed and the bill of sale, and for the recovery of the stock mentioned in the bill of sale. We shall not dispose of the propositions found in appellant's brief in their order, but will, nevertheless, make such disposition of them as is necessary to dispose of appellant's contentions. Before touching the propositions, however, we will make a brief statement of such of the material facts shown by the record as we deem necessary to a clear understanding of the case.

As we have stated in the beginning, S. Guedry, the deceased, was an old gentleman living in Hardin county, where he had lived for many years, and, having no wife or children of his own, he had for several years prior to his death made his home with some of his other relatives, and perhaps with others, going from one such home to another, as suited him, until he came to live at the home of the Jordans, the appellees here. Just before coming to the Jordan home, Guedry had been making his home with Mayo Fregia, who lived a short distance from the Jordans. On January 1, 1921, Mrs. Jordan invited S. Guedry, the deceased, to take New Year's dinner at the Jordan home, and Guedry accepted the invitation and came over from the Fregia home to take dinner with the Jordans. He never returned after that to the Fregia home, but thereafter, up to the time of his death made his home with the Jordans, and died there on the 17th of March, 1921, as we have stated.

The evidence shows, without contradiction, that Guedry as far back as September, 1920, had importuned Jordan and wife to let him live in their home, stating to them that he was old and feeble, and desired a home where he could be comfortable, and have attention, and that he was not satisfied where he was then living. The Jordans, who were in no way related to Guedry, did not grant this request of Guedry at that time, for the reason, as stated by them, that they did not have room enough in their house to accommodate him, and were not able to build more room for him, and this ended Guedry's efforts at that time to live with the Jordans. In December following, however, Guedry renewed his request to be permitted to make his home with the Jordans, but for the same reason as before the request was not at that time granted, and Guedry continued to remain at the home of Mayo Fregia, but when he came over to take New Year's dinner, as we have stated, with the Jordans, he again requested them to let him remain there and make it his home, and stated to them, in substance, that he would pay for the building of additional room to the house and would be glad to do so, and thereupon the Jordans agreed that Guedry might remain at their home from then on, he paying for his board and attentions to be given him in his aged and infirm condition, and thereafter he did, at his own expense, add more room to the Jordan house and became a member, so to speak, of the family.

The evidence shows that Guedry was possessed of sufficient means in the way of land and cattle and horses and perhaps some money to keep himself in comfort, and that he was liberal with the Jordans in paying for his home and attentions there. The evidence further shows that the Jordans were very...