Hanes v. Hanes

• Citation: 239 S.W. 190
• Decision Date: 22 March 1922
• Docket Number: (No. 248-3448.)
• Parties: HANES v. HANES.
• Court: Supreme Court of Texas

Page 190

239 S.W. 190

HANES v. HANES.

(No. 248-3448.)

Commission of Appeals of Texas, Section B.

March 22, 1922.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

On motion for rehearing. Motion overruled.

For former opinion, see 234 S. W. 1078.

McCLENDON, P. J.

Defendant in error was appellant in the Court of Civil Appeals, and in that court urged six assignments of error, numbered 1 to 7, there being no assignment No. 2. Five of these assignments were overruled by that court, but the sixth (No. 7), to the effect that the deed under which plaintiff claimed was tainted with illegality, in that its consideration in part was an agreement not to prosecute defendant's son, was sustained, the trial court's judgment reversed, and judgment rendered in favor of the appellant in that court, defendant below, and defendant in error here. The cause was brought to the Supreme Court by appellee, plaintiff below, upon one assignment of error, which questioned the ruling of the Court of Civil Appeals upon the issue of the illegality of the deed under which appellee claimed. Appellant's assignments of error which were overruled in the Court of Civil Appeals were not further urged, and in our original recommendation to the Supreme Court we declined to consider them for that reason. Defendant in error in a motion for rehearing now urges all the assignments of error presented in his brief in the Court of Civil Appeals, and it becomes our duty under the holding of the Supreme Court in Holland v. Nimitz (Tex.) 239 S. W. 185, decided March 15, 1922, not yet [officially] published, to consider all questions of law properly raised by the prevailing party in the Court of Civil Appeals. These assignments will be considered in the order in which they appear in appellant's brief. For convenience we will refer to the parties as appellant and appellee.

Appellant offered in evidence a deed executed by appellee, conveying the land in question to appellant for the recited consideration of $100 cash. This deed was executed September 2, 1914, and acknowledged on the following day, but the acknowledgment was not taken in the manner required by statute for married women. The deed was excluded upon the objection that at the time it was executed appellee was a married woman and her privy acknowledgment was not taken. It is contended that this ruling was erroneous, in that the evidence was sufficient to raise the issue that, at the time of the execution and acknowledgment of the deed, appellee and her husband were permanently separated. We have reached the conclusion that the evidence will not support a finding of permanent separation at that time. Appellee and Bryan Hanes were married June 19, 1914. On the same day they went to the home of appellee's parents, where they spent the night. The next day they went to the home of appellant and his wife, where they resided until September 19, 1914, on which date plaintiff returned to her parents. The deed was executed 17 days before appellee left the home of her husband's family, and, while there is some testimony to the effect that at that time she and her husband were occupying different rooms, still we think it is quite clear from the evidence, viewed most strongly as supporting a permanent separation, that such status did not then exist. At most the evidence shows that at that time appellee was in a disturbed state of mind, and was uncertain as to what she should do. She was several years older than her husband, and some of the witnesses testified that she had expressed the view that it would be better for her to leave him. Appellant's wife testified to having counseled with her, and having suggested that she go home and talk the matter over with her own mother. She remained under the same roof and in the family circle with her husband up to September 19th; and we are unable to draw the inference that up to that time there was anything more than a contemplation in her mind of permanent separation. We do not think the evidence would warrant a finding of permanent separation antedating her actual removal from the residence of her parents-in-law. We therefore conclude that the trial court correctly excluded the deed.

It is urged that the first and second special issues were misleading, in that the jury were impressed therein—

"that it was necessary that the duress and threats and force alleged in defendant's answer must be such as to render the defendant incapable of disposing of his property."

It would probably be sufficient to call...