Huss v. Wells

• Decision Date: 18 November 1897
• Citation: 44 S.W. 33
• Parties: HUSS v. WELLS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

44 S.W. 33

HUSS v. WELLS.¹

Court of Civil Appeals of Texas.

November 18, 1897.

Appeal from district court, Houston county; J. R. Burnett, Judge.

Trespass to try title by S. E. Huss against Moses Wells. From a judgment in favor of defendant, plaintiff appeals. Reversed and rendered.

Nunn, Nunn & Nunn, for appellant. Adams & Adams, for appellee.

PLEASANTS, J.

In 1887 appellant and J. W. Price, her then husband, owned the land in controversy in this suit, and while occupying the same as their homestead they executed and delivered to appellee and his brother James Wells a deed for the premises, with general warranty. James Wells soon after the purchase conveyed his interest in the premises to the appellee. The deed was not acknowledged by the appellant. Some ten days or two weeks after the purchase by appellee from Price and wife they vacated the premises, and removed to Navarro county, and when they left the place, or shortly thereafter, appellee took actual possession thereof, and has continued to reside thereon, and has made valuable and permanent improvements, taking in more land, building more fences, improving the dwelling house, and erecting new outhouses. Shortly after appellant and her husband arrived in Navarro county they separated. Price, as the appellant avers, abandoned her and her children, and left them without means of support, and she returned to Houston county; and in 1892 she obtained a divorce from Price, and afterwards married a man named Huss, from whom she separated before the institution of this suit, and they have continued to live apart. Her former husband, Price, is dead. This suit was brought on September 13, 1895, nearly eight years after the purchase of the place by appellee from Price and appellant. She describes the land in her petition, and alleges it to be her separate property, and the homestead tract of herself and her former husband. The action is one of trespass to try title. The appellee pleaded not guilty, and he further pleaded specially: (1) The three, five, and ten years' statutes of limitations; (2) tenancy in good faith and the erection of valuable and permanent improvements; (3) conveyance from appellant and her husband, J. W. Price by deed with general warranty, in consideration of $550 paid them, and estoppel against the wife. Appellant filed supplemental petition, in which she pleaded coverture in avoidance of pleas of statute of limitations and estoppel by appellee. The case was tried by the judge, without the intervention of a jury, and judgment rendered against the plaintiff that she take nothing by her suit, and that the defendant recover his costs; and the plaintiff excepted, and gave notice of appeal. The plaintiff has never had a homestead since she left the premises in controversy. It is also true that at the time of the execution of the deed under which the appellee asserts title the premises were occupied by appellant and Price, and were their homestead. The property was purchased by them during their marriage, and much of the purchase money was paid out of her separate funds; but this fact is immaterial, since the deed does not convey the land to the appellant as her separate property, and there is no evidence whatever that appellee or his brother knew, when they purchased the property, that any part of the purchase money was paid out of the separate estate of appellant. The evidence is conflicting as to whether the sale was made with the consent of the wife, or whether she, as she alleges to be the fact, signed the deed through fear of personal injury from her husband. She testifies that she did not desire to sell the place, and did not know that her husband contemplated selling it until the day before the deed was executed; and, when informed by him that he had bargained the land to appellee and his brother, she declared that she would not join in the deed of conveyance, and thereupon her husband threatened her with personal violence if she refused to join in the deed, and that he not only threatened her, but actually inflicted violence upon her person, before she signed the deed; and she further testifies that she never left the premises voluntarily, but that she was compelled by her husband to do so. On the other hand, several witnesses testify for the appellee that the sale of the premises was effected mainly through her instrumentality; that she declared that she wished to sell that she might go to Navarro county, and be near her sister, who resided in that county; that she requested appellee to buy the place, and proposed to sell to others also; that she received the money for the place; that it was counted into her lap, and that she seemed much pleased at receiving it; that she signed the deed when her husband was not present, he being out in the field; that she offered to go before an officer, and acknowledge the deed, but appellee was advised by an ex-justice of the peace that it was not necessary to take her separate acknowledgment; that only attesting witnesses were necessary; and that the deed was witnessed and authenticated by the affidavit of one of the witnesses, made before the clerk of the county. But it was admitted that Price was illiterate, and unable to count the money paid for the land; and it was shown by the...