Himes v. Himes, 12723.

• Decision Date: 22 October 1932
• Docket Number: No. 12723.,12723.
• Citation: 55 S.W.2d 181
• Parties: HIMES et al. v. HIMES et al.
• Court: Texas Court of Appeals

Page 181

55 S.W.2d 181

HIMES et al. v. HIMES et al.

No. 12723.

Court of Civil Appeals of Texas. Fort Worth.

October 22, 1932.

Rehearing Denied November 26, 1932.

Appeal from District Court, Tarrant County; James E. Mercer, Judge.

Suit by J. E. Himes and others against J. M. Himes and others. From the judgment, defendants appeal.

Affirmed as modified.

McLean, Scott & Sayers, of Fort Worth, for appellants.

Clark & Clark, of Fort Worth, for appellees.

CONNER, C. J.

This litigation is between the children and heirs of G. W. Himes, deceased. G. W. Himes became non compos mentis about December 1, 1924, and continued so until his death on April 26, 1929. He died intestate, owning the following property, to wit: A promissory note for $910 executed by appellant J. M. Himes and secured by a deed of trust upon 60 acres of land hereinafter described; $1,044.60 cash in bank; several rent houses; and 40 acres of land.

The record shows that, from the time G. W. Himes became insane until the date of his death, appellant J. M. Himes took possession of the property specified and cared for his father. There was no administration, or necessity therefor, of the estate of G. W. Himes, and J. M. Himes during the period specified collected in rents from the houses that belonged to his father $810, and owed the further sum of $240 of rents on said 40 acres of land.

This suit was instituted by J. E. Himes and other brothers and sisters of appellant J. M. Himes for an accounting and partition of the property of their said father.

Appellant's evidence was to the effect that the moneys in bank and the rents received from the houses as above specified were used by him for the benefit and in the care of his father, and the appellees are not now and here complaining of this fact or seeking any recovery on account of said appropriation of the moneys in the care of their father. The vital issues now and here relate to the said note of $910 executed by J. M. Himes and the status of the 60 acres of land upon which the said trust deed rested. As to these items the appellant pleaded that his father had given him the promissory note for his care and attention to him, and that the 60 acres of land upon which the trust deed rested constituted a part of his homestead, and therefore was not subject to the lien of the trust deed.

Among other findings not necessary to mention in view of what we have already said, the jury, in answer to special issues, found that, in addition to the moneys in bank and rents collected from his father's rent houses, appellant was due as rents on the 40 acres of land mentioned $60 a year for the years 1925 to 1928, inclusive, aggregating $240, that appellant had not paid the promissory note for $910, and that the 60 acres of land securing it by deed of trust was not at the time of the execution of the note and trust deed appellant's homestead. Upon the verdict of the jury, the court entered judgment against appellant for the principal, interest, and attorney's fees due upon said note, which aggregated $1,668.30, and found that this sum was secured by a deed of trust upon the 60 acres of land therein described, foreclosed the lien, found the properties were incapable of partition, ordered the sale of the 40 acres of land that belonged to the deceased, and divided and apportioned the proceeds to the respective parties in shares, of which no complaint is made, and of which, therefore, no detailed statement is necessary. From the judgment so rendered appellant J. M. Himes has appealed.

But two controlling questions are presented for our determination. The first is whether under the circumstances the court erred in excluding appellant's tendered testimony to the effect that his father had given to him the promissory note in litigation as alleged in his answer; second, whether the 60 acres of land upon which the trust deed rested was at the time of the execution of the note and trust deed a part of appellant's homestead.

While the assignment of error raising the question first stated is perhaps not sufficiently specific to require consideration, we have nevertheless concluded to dispose of it.

The appellant, after pleading demurrers and a general denial, presented the following special plea: "Further answering herein, defendant would show the court that the note in the sum of $910.00 mentioned in plaintiffs' second amended original petition has been fully paid and satisfied, as shown by the allegations hereinafter contained; and further, that the alleged lien created by the execution of a deed of trust on the part of this defendant on the 1st day of December, 1922, and the land described therein, as shown by said deed of trust (being the same land and premises mentioned and described in plaintiffs' second amended petition) and the description of said land mentioned therein, which is of record in the deed of trust records of Tarrant County, Texas, in vol. 176, page 307, is void and of no force and effect, for the reason that said property and premises so described in said deed of trust and against which said lien is claimed, was at the execution of said deed of trust, and is now, and has been during all of said intervening times, the homestead of this defendant and his family; that this defendant at the time of the execution of said deed of trust, and now, and during all of the intervening times, has been a married man, living upon said premises, using, enjoying and cultivating the same as a homestead in the support and maintenance of his family, which consists of his wife and two dependent children."

Upon the trial the plaintiffs, appellees here, called the defendant John Himes as a witness in their behalf, and he was interrogated by counsel for plaintiffs. In answer to questions in behalf of plaintiff, he testified that the signature to the deed of trust shown him was his; that he signed and executed it and got $910 in December, 1924. And he was asked the following question: "You have never paid that have you? Answer: No, sir."

In answer to further questions in behalf of plaintiffs, he testified: "That it was his signature to the deed of trust in controversy; that he had signed and executed the $910.00 note; that he had already owed his father something like half of the amount of the note; that his father filed the deed of trust. That after his father was stricken he drew some of the checks but he did not ask his father about all of them. That he had not paid his father any rent on the 40 acre farm since 1924."

Witness was also interrogated as to various other transactions and conversations by the plaintiff on direct examination which we do not think pertinent to the questions under consideration and which therefore need not be detailed.

After the lengthy direct examination, on cross-examination he was asked by his counsel the following question: "Q. He (meaning G. W. Himes) told you and your wife that he wanted you to have everything that he had? A. Yes, sir; he said they all had turned him down, and he wanted us to have everything that he had."

To this counsel for plaintiffs objected, and the court sustained the objection. Counsel for defendant excepted to the ruling, stating that: "This is their witness; they put him on the stand, on the witness stand, and this is an exception to the general rule."

Mr. Clark for plaintiffs: "We are not asking for any conversation."

Mr. Binion for defendant: "And we here now would like to prove what and show what he did say."

Defendant was thereupon examined by counsel for plaintiffs and the following appears:

"Q. And if you get the money now, when you sell your place, why then, are you not going to pay it? A. Not going to pay the note?

"Q. Yes. A. My father gave me the note.

"Mr. Clark: That was ruled out yesterday and he repeatedly makes that statement.

"The Court: You are instructed not to consider the answer of the witness, that his father gave him the note for any purpose."

Thus far it is plain that all of the testimony of the defendant relating to the alleged gift was voluntary, was properly excluded, and affords defendant no right to claim plaintiffs have relinquished the right granted them by article 3716.

On further redirect examination by counsel for plaintiffs, the defendant John Himes testified as follows:

"Q. He (meaning G. W. Himes) didn't have confidence enough that he didn't get you to come to town and sign up a deed of trust for this money that you were borrowing off of him? A. No, but he had mind enough to give it to me.

"Q. He had mind enough to give it to you; he took a lien on the land in order to see that it was paid, didn't he? A. Yes, sir.

"Q. And you came to town and signed up, and he took it over here? A. When he saw that I had kept him, he said, `John, you can have it.' He said, `John I will give it to you.' He said `you and your wife can have everything I have got.' He said `you are the only ones that will take care of me. They have all turned me down, and when you turn—'

"Q. You mean that your father told you that his daughter, Mrs. Reeves back there had turned him down? A. Yes, sir, she did, honestly.

"Q. Why didn't he mark that note paid, if he was going to let you have it; why didn't he mark it paid? A. He couldn't write at all.

"Q. He couldn't write; why didn't you get some witnesses in there to that? A. I never thought anything about it; I thought that he had a right to do what he pleased with his property.

"Q. You know that it was a cloud on the title, and after he died that it would have to be cleared up, didn't you? A. I never thought anything about that; I didn't know anything about any law suit.

"Mr. Clark: Now, he has volunteered statements as to what his father told him, and of course we are willing for it, if we can go in and show what the father said; otherwise we want the court to strike it out.

"The Court: Gentlemen of the jury: You will not consider for any purpose the statements made by the witness's fat...