Hall v. Collins

• Court: Texas Court of Appeals
• Writing for the Court: Folley
• Citation: Hall v. Collins, 167 S.W.2d 210 (Tex. App. 1942)
• Decision Date: 02 November 1942
• Docket Number: No. 5480.,5480.
• Parties: HALL et al. v. COLLINS et al.

167 S.W.2d 210

HALL et al. v. COLLINS et al.

No. 5480.

Court of Civil Appeals of Texas. Amarillo.

November 2, 1942.

Rehearing Denied December 14, 1942.

Second Motion for Rehearing Denied January 4, 1943.

Appeal from District Court, Wilbarger County; C. Y. Welch, Judge.

Suit by Nannie Mae Collins against Sarah Elizabeth Hall and others to recover an undivided one-fourth interest in land and for cancellation of certain deeds, wherein S. B. Halford filed a cross action. From an adverse judgment Sarah Elizabeth Hall and husband, and J. B. Halford appeal.

Reversed and rendered in part and affirmed in part.

J. Shirley Cook, of Vernon, for appellants.

Oswalt & Hollars, of Vernon, for appellee Nannie Mae Collins.

L. P. Bonner, of Vernon, for appellee S. B. Halford.

FOLLEY, Justice.

This is the second appeal of this case. Our opinion in the first appeal is reported in 151 S.W.2d 338, wherein we reversed and remanded the case because of violations of the provisions of Article 3716, Vernon's Ann.Civ.Stat., relative to transactions with, and statements of, a deceased person. In order that this opinion may be complete within itself, we shall restate, without quotations, some of the same facts found in the former opinion, making such changes as the present record requires.

This suit is a controversy between the four surviving children of Mrs. Lillie Halford, deceased, involving 640 acres of land in Wilbarger County, Texas, known as the E.¼ of Section 44 and the E.½ and the S.W.¼ of Section 45, all in Block 12, H. & T. C. Ry. Co. Survey. The four children consist of two daughters, Mrs. Nannie Mae Collins and Mrs. Sarah Elizabeth Hall, and two sons, S. B. Halford and J. B. Halford, who are the only heirs at law of Mrs. Halford, deceased.

Mrs. Halford's husband died in 1910, at which time it appears that he and Mrs. Halford owned no real property. In 1923 Mrs. Halford purchased from her parents, D. Magness and wife, the N.W.¼ of Section 45 in said Block 12, which land she owned at the time of her death on December 6, 1935. This one-fourth section, referred to as the home place, is not involved in this controversy except incidentally, as shall hereinafter appear. In 1927 J. B. Halford purchased from his Magness grandparents the E.¼ of Section 44 and the E.½ of Section 45, above described, executing notes for a part of the purchase price. Not being able to pay for the land, on January 16, 1933, which was after the death of his grandparents, J. B. Halford reconveyed this 480 acres to the Magness estate in consideration of the cancellation of the indebtedness thereon. On the same day, in a settlement with the other heirs of the Magness estate, Mrs. Halford acquired from said estate, by deed, this same 480 acres and the S.W.¼ of Section 45 as her separate property. Also, at the same time and in the same transaction, Mrs. Halford, by general warranty deeds, conveyed the S.W.¼ of Section 45 to her daughter, Mrs. Sarah Elizabeth Hall, and the E.¼ of Section 44 and the E.½ of Section 45 to her son, J. B. Halford, the latter receiving the same 480 acres of land which he had, on the same day, conveyed to the Magness estate. The consideration recited in each of the deeds from Mrs. Halford to her son and daughter, respectively, was one dollar and love and affection. At the time these deeds were executed, Mrs. Halford was surety on the indebtedness of her other son, S. B. Halford, to the First State Bank of Vernon, Texas in the sum of about $6,000. The record shows that on this same day this indebtedness was renewed to the bank with Mrs. Halford again surety thereon. Also at such time the other daughter, Mrs. Nannie Mae Collins, had been absent from Wilbarger County for about two years. There was proof to the effect that her whereabouts were unknown to her Wilbarger County relatives, they thinking her to be dead. Mrs. Collins, however, resided in Dallas County, Texas from 1931 until 1937, when she learned that her mother had died in 1935, whereupon she returned to Wilbarger County.

Mrs. Halford died intestate and Mrs. Hall was appointed administratrix of her estate by the County Court of Wilbarger County. Such administration is still pending. The only real property listed in the inventory and appraisement of the estate of the deceased is the N.W.¼ of Section 45 which was valued at $3,000 and was owned by Mrs. Halford at the time of her death, and against which there is now an indebtedness of about $5,000. This indebtedness is the balance due upon the original debt of S. B. Halford to the First State Bank which amounted to more than $5,000 at the time of the transfer of the lands here involved to J. B. Halford and Mrs. Sarah Elizabeth Hall. This indebtedness is now held by Mary Schmoker and is secured by a deed of trust executed by the administratrix upon the 160 acres of land inventoried in the estate of Mrs. Halford. This indebtedness is all that is shown existing against the estate of Mrs. Halford. It also appears that at the time this indebtedness was transferred to Mary Schmoker, S. B. Halford executed a deed, conveying his undivided one-fourth interest in the N.W.¼ of Section 45 to Mrs. Sarah Elizabeth Hall.

With the above factual background this suit was filed by Nannie Mae Collins against her sister, Mrs. Hall, and her two brothers, S. B. Halford and J. B. Halford. Mrs. Hall being under coverture, her husband, William M. Hall, was also a defendant in this suit. Mrs. Collins sought recovery from her sister and brothers of an undivided one-fourth interest in the 160 acres of land deeded to Mrs. Hall and in the 480 acres of land deeded to J. B. Halford. As in the former trial, S. B. Halford filed an answer and cross action in which he sought recovery against all of the other parties of an undivided one-fourth interest in the same land. Both complaining parties again assert that the deeds conveying the respective lands to J. B. Halford and Mrs. Hall were merely conveyances in trust for the benefit of Mrs. Halford and her estate and that J. B. Halford and Mrs. Hall held such lands only in their capacities as trustees for the benefit of the four children of the deceased. In the former trial, as indicated in our former opinion, the recovery was chiefly predicated upon the theory that the grantees in such deeds reconveyed the same property to their mother in other deeds which were not recorded so as to leave the apparent ownership in J. B. Halford and Mrs. Hall. In the instant trial the same theory is pleaded only in the alternative. The claimants rely this time chiefly upon an alleged oral contract between S. B. Halford, on the one hand, and J. B. Halford and Mrs. Hall, on the other, wherein it was agreed that their mother should convey the lands to J. B. Halford and Mrs. Hall, to be held in trust for the benefit of the grantor and her estate, the specific reasons therefor being more fully set out below. Both complainants asked for judgment for their respective one-fourth interests in the land and sought cancellation of the deeds from Mrs. Halford to J. B. Halford and Mrs. Hall. In addition thereto, S. B. Halford asked for cancellation of his deed to Mrs. Hall for his undivided one-fourth interest in the N.W.¼ of Section 45. The pleadings of J. B. Halford and Mrs. Hall are not important.

Upon special issues submitted, as material to this controversy, the jury found that prior to the execution of the respective deeds by Mrs. Halford, it was agreed by and between J. B. Halford, S. B. Halford, and Mrs. Sarah Elizabeth Hall that the grantees in such deeds should hold the land described therein for the benefit of all the children of Mrs. Lillie Halford in equal shares; that at the time such deeds were executed it was agreed between J. B. Halford, S. B. Halford, and Mrs. Sarah Elizabeth Hall that J. B. Halford and Mrs. Sarah Elizabeth Hall would make a deed, conveying back to Mrs. Halford the same land conveyed to them by the deceased; and that no such deeds of reconveyance were ever made or delivered to Mrs. Halford. After overruling the motion of J. B. Halford and Mrs. Hall for a peremptory instruction and their motion for judgment non obstante veredicto, the court rendered judgment that Mrs. Collins and S. B. Halford each recover from the other children, respectively, an undivided one-fourth interest in the 640 acres of land in controversy. It was further adjudged that the deeds conveying the land to J. B. Halford and Mrs. Hall be canceled and that the title thereto be divested out of each of them except for an undivided one-fourth interest therein. The court also decreed that the deed from S. B. Halford to Mrs. Hall, purporting to convey an undivided one-fourth interest in the N.W.¼ of Section 45 was, in fact, a mortgage to secure the payment of the $5,000 loan in favor of Mary Schmoker, and ordered that upon the payment of such indebtedness, his deed be canceled. The latter tract of land was not otherwise affected by the judgment. A one-fifth interest of the recovery of Mrs. Collins was decreed in favor of W. D. Hollars, her attorney. From this judgment the appellants, Mrs. Hall, her husband, and J. B. Halford have prosecuted this appeal. However, since William M. Hall is only a nominal party, our reference hereinafter to the appellants will indicate only J. B. Halford and Mrs. Hall.

From the above findings of the jury, it is apparent that the alternative theory of recovery relative to a reconveyance of the land from the appellants to Mrs. Halford has been eliminated from this case. No reconveyance having been made, the agreement to reconvey must fall because it contravenes the statute of frauds. Vernon's Ann.Civ.St. art. 3995. Allen v. Allen et al., 101 Tex. 362, 107 S.W. 528; Whittenburg et al. v. Miller, 164 S.W.2d 497. The appellees are thus relegated to the asserted contract between S. B. Halford and the appellants, which appellees insist constituted a trust wherein appellants held the land only as trustees for...