Hatton v. Turner

• Decision Date: 28 August 1981
• Docket Number: No. 1457,1457
• Citation: 622 S.W.2d 450
• Parties: Algie Lee HATTON, Appellant, v. Brutha TURNER, et al., Appellees.
• Court: Texas Court of Appeals

Page 450

622 S.W.2d 450

Algie Lee HATTON, Appellant, v. Brutha TURNER, et al., Appellees.

No. 1457.

Court of Civil Appeals of Texas, Tyler.

Aug. 28, 1981.

Henry T. Skelton, Kugle, Douglas & Skelton, Athens, for appellant.

Kenneth R. Barron, Joe B. Beam, Tyler, for appellees.

SUMMERS, Chief Justice.

This appeal involves a controversy between ten brothers and sisters, or those claiming under them, over ownership of an undivided 108/160th interest in two tracts of land in Henderson County, Texas. One was a 67 acre tract ¹ in the Lindsey Survey, and the other was a 123.89 acre tract in the Cavitt, Hamill and Lowery Surveys.

Appellant, Algie Lee Hatton, claims ownership of the 108/160th interest by virtue of a deed from his father, J. B. Hatton, dated December 2, 1955, and recorded in Volume 433, Page 104, Deed Records of Henderson County. Appellees, Charles E. Hatton, Freddie D. Hatton, A. C. Hatton, Fayrene Dobson, Gertie Poyner, Joe (Jo) Henrickson, Cleo Brand, Herbert J. Hatton and Roberta Hatton (being the eight brothers and sisters of appellant and wife of his deceased brother, Otto Hatton) claim an undivided ownership in the 108/160th interest in said two tracts, as heirs of J. B. Hatton and wife, Threcie Hatton, the deceased father and mother of appellant and eight of the appellees.

This suit was originally filed by appellant, Algie Lee Hatton, on February 21, 1979, as a partition action against the owners of the remaining 52/160th interest ² in said two tracts. In this action appellant claimed full ownership of the 108/160th interest. Appellees intervened in the partition suit and asserted their claim that the 108/160th interest should be divided into ten equal parts, one part for each brother and sister and one part for the sister-in-law.

In addition to a general denial, appellees alleged in their plea of intervention (1) that J. B. Hatton executed the deed in question in order to qualify for old age assistance and that said conveyance should be set aside for failure of consideration; (2) that the deed was invalid as a conveyance of Threcie Hatton's interest since the property was a part of the homestead and was executed without the wife's joinder; and (3) in the alternative, that the property should be impressed with a constructive trust for the benefit of appellees as heirs of J. B. Hatton and wife, Threcie Hatton. In defense of appellees' claim, appellant pled the three, five, ten and four-year statutes of limitation, as well as laches.

Trial was had before the court without the intervention of a jury. The court concluded that a constructive trust existed in favor of the appellees and decreed that the undivided 108/160th interest in said two tracts of land be divided equally between the appellant and appellees, each one owning an undivided one tenth (1/10th) share in said interest. From this judgment, appellant has appealed.

We affirm.

The trial court made and filed extensive findings of fact and conclusions of law, and no additional findings and conclusions were requested. The record on appeal also includes a statement of facts, consisting of 212 pages of testimony and one exhibit, being a copy of the deed in question.

The trial court, in its findings of fact, in part, found the following in support of its judgment:

4. J. B. Hatton on December 2, 1955, executed a deed purporting to convey his interest in the subject land to Algie Lee Hatton, such deed being recorded in Volume 433, page 104, Deed Records of Henderson County, Texas.

5. At the time of the aforementioned conveyance on December 2, 1955, J. B. Hatton was married to Threcie Adaline Malone Hatton. J. B. Hatton and wife were the mother and father of the plaintiff, Algie Lee Hatton, and the Intervenors in the subject suit.

7. There was no consideration passed for the deed from J. B. Hatton to A. L. Hatton dated December 2, 1955.

8. The property described in the above-referenced deed was community property of J. B. Hatton and wife, Threcie Adaline Malone Hatton.

9. The father, J. B. Hatton, conveyed the subject property to the Plaintiff, Algie Lee Hatton, in order to qualify for old age assistance.

10. The deed dated December 2, 1955, remained in J. B. Hatton's possession, specifically his lockbox, until after his death in December, 1962.

11. J. B. Hatton continued to pay taxes on the subject property after December of 1955 until the time of his death.

12. J. B. Hatton was born in 1886.

13. Algie Lee Hatton, the Plaintiff, told several persons, including his brothers and sisters, the Intervenors, that he was holding the subject property for the benefit of the entire family and that he intended to divide the property equally among all the heirs of J. B. Hatton and wife, Threcie Adaline Malone Hatton.

14. Algie Lee Hatton continued stating to others that he was holding this property for the benefit of all the heirs of his father and mother as late as March 24, 1979.

15. J. B. Hatton and wife continued using, exercising dominion over and controlling the subject property until the death of J. B. Hatton, continuing claiming a portion of same as their homestead.

16. J. B. Hatton died intestate in December, 1962, in Henderson County, Texas; Threcie Adaline Malone Hatton died intestate in December, 1972, in Henderson County, Texas. Their heirs at law are the Plaintiff and Intervenors in the subject cause of action.

17. Neither J. B. Hatton, his wife, nor their heirs at law had any knowledge of any intention by Algie Lee Hatton, the Plaintiff, to repudiate his agreement with his father that he would hold the land for the benefit of the family until March of 1979. None of the heirs at law of J. B. Hatton and his wife had any knowledge, or any reason to suspect, that Algie Lee Hatton was holding the property adversely to their claim until March of 1979.

When specific findings of fact and conclusions of law are filed, no additional findings are requested, and a statement of facts is also brought forward, the findings will be sustained if there is any evidence to support them. McWhorter v. City of Winnsboro, 525 S.W.2d 701, 705 (Tex.Civ.App. Tyler 1975, writ ref'd n.r.e.); Mathews v. Warren, 522 S.W.2d 569, 570 (Tex.Civ.App. Austin 1975, writ ref'd n.r.e.); See also 4 R. McDonald Texas Civil Practice § 16.10(b), p. 29 (1971).

Appellant predicated his appeal upon six points of error. In his first and third points he complains that the court erred in finding the property subject to a constructive trust and in failing to find that appellees' action on this basis was barred by the four year statute of limitations. Tex.Rev.Civ.Stat.Ann. art. 5529.

In his second point, appellant complains that the evidence is insufficient as a matter of law to support the court's finding that the father conveyed the property to appellant to qualify for old age assistance.

In his fourth point appellant asserts that the court erred in finding that the deed in question remained in J. B. Hatton's possession until after his death, because the testimony supporting such finding was violative of the Dead Man's Statute.

In his fifth and sixth points appellant contends that the evidence is insufficient as a matter of law to support the court's finding that the 67 acre tract was part of the parent's rural homestead and that the court erred in its ruling that the conveyance of this tract was void for lack of the wife's joinder.

We find no merit in appellant's fourth point of error. When appellees offered testimony from A. C. Hatton that he saw the deed in question in his father's deed box, appellant objected on the grounds that such evidence constituted testimony as to a transaction with the decedent. We disagree. The court properly overruled this objection. Thereafter, A. C. Hatton testified in pertinent part as follows:

Q. Did you ever see that deed? A. A number of times.

Q. Where did you see it? A. At home.

Q. And where is home? A. Opelika, Texas; Route 1.

Q. Is that where your father lived? A. Yes, sir.

Q. Is that where you lived? A. Yes, sir.

Q. Were you living at home during those years? A. Yes, sir.

Q. Were you living at home up until the time of your father's death? A. Yes, sir.

Q. Were you living there after his death? A. Yes, sir.

Q. Now, you saw the deed where? A. In the deed box at home.

Q. Did you see the deed there after your father died? A. Yes, sir.

Q. How long after your father's death did you see the deed in this box? A. About a month.

Q. After that did you see it in the box? A. It disappeared.

Q. You don't know what happened to it? A. Yes, sir, I know.

Q. Well, of your own knowledge do you know what happened to it? A. Yes, sir.

Q. What happened to it? A. It went to Dallas.

Q. The deed did? A. Yes, sir.

Q. Who took it to Dallas? A. Lee.

Q. So Lee got the deed? A. Right.

Q. A month after your father died? A. Yes, sir; about two months.

Q. And took it with him? A. Right.

Q. Up until that time did Lee have the deed? A. No, sir.

Since the prohibition under Tex.Rev.Civ.Stat.Ann. art. 3716 (Vernon 1926) applies only to a "transaction with or statement by" the decedent, there is nothing to prevent a person from testifying as to his own acts if they do not form a part of some transaction with the decedent. 1 R. Ray, Texas Law of Evidence § 329, P. 337 (Texas Practice 3rd ed. 1980) and authorities there collected. It has been held that the rule of the Statute does not apply to facts and circumstances which though disclosing or affecting a transaction with a decedent, constitute no part of it. Horst v. Tobin, 18 S.W.2d 221, 224 (Tex.Civ.App. El Paso 1929, writ refused). The testimony of A. C. Hatton that he observed the deed in question in his father's deed box did not violate the Statute. Although it disclosed the existence of the deed, it did not form any part of the deed transaction.

We shall next address appellant's first and third points as we believe them to be dispositive of the case.

Several witnesses gave...