Jenkins v. Adcock

• Decision Date: 23 November 1893
• Citation: 27 S.W. 21
• Court: Texas Court of Appeals
• Parties: JENKINS et al. v. ADCOCK et al.<SMALL><SUP>1</SUP></SMALL>

27 S.W. 21

JENKINS et al. v. ADCOCK et al.¹

Court of Civil Appeals of Texas.

November 23, 1893.

Appeal from district court, Jefferson county; W. H. Ford, Judge.

Action by Elizabeth J. Jenkins and others against Nancy R. Adcock and others to cancel or reform a deed. From a judgment for defendants, plaintiffs appeal. Affirmed.

Appellant Elizabeth Jenkins, joined by her husband, brought this suit to cancel or reform an instrument which was in form of a deed conveying plaintiff's interest in a tract of 200 acres of land to her sister, Mrs. Adcock, the appellee, but which was alleged in the petition to have been intended to operate simply as a will, and to devise to appellee such interest in the land as plaintiff might have remaining undisposed of at her death. The petition charged that, by mutual mistake of herself and her sister, as well as of the draughtsman of the paper, it was made to assume the form of a quitclaim deed, conveying the land absolutely, but to take effect at her death, when the intention of all the parties was that it should be a will, leaving in plaintiff the power of revocation, and of control and disposition of the land during her life, and bequeathing to her sister only such portion as should remain undisposed of at plaintiff's death. It was also charged that the defendant procured the instrument by fraud, misrepresentation, and undue influence; that the instrument was without consideration, was never delivered, and was not intended to be recorded, but that defendant had obtained possession of and recorded it, and was asserting title under it. A further allegation was made that the instrument was not intended to embrace the 200 acres, but only a tract of 5 acres of same, which already belonged to the parties jointly. The defendants pleaded general denial. The court below rendered judgment for defendants, which is brought in review in this appeal. The instrument in question is as follows: "The State of Texas, County of Jefferson. Know all men by these presents, that I, Elizabeth Jane Hays, a feme sole, of the state of Texas and county of Jefferson, for and in consideration of the sum of fifty dollars to me paid by Nancy R. Adcock, have granted, sold, and conveyed (to take effect at my death), and by these presents do grant, bargain, and sell, to the said Nancy R. Adcock, of said county and state, my entire interest in and to two hundred acres of land of the Hezekiah Williams survey, situated in Jefferson county, state of Texas, on the west bank of Neches river, including the homestead and ferry of our mother, Ellen R. Collier, and being the same land bequeathed to us, the said E. J. Hays and N. R. Adcock, by our said mother in her last will and testament, and which said land and ferry is now held and occupied by our said mother until her death, when the said E. J. Hays is to hold and occupy the same until her death; and, at my death, my entire interest in said land and premises is by these presents conveyed to my said sister, Nancy R. Adcock, to have and hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said Nancy R. Adcock, her heirs and assigns, for ever; and I do hereby bind myself, my heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto the said Nancy R. Adcock, her heirs and assigns, against every person whomsoever lawfully claiming or to claim the same, or any part thereof. Witness my hand, this the 22nd day of June, A. D.

                                    her
                1889. Elizabeth Jane X Hays. Witness: J. E
                                   mark
                

Charpiot. W. L. Rigsby." The evidence showed the following facts: Mrs. Ellen Collier, the mother of both plaintiff and defendant, owned, as her homestead, a tract of 200 acres of land, besides other property. She had on the 31st day of March, 1879, conveyed to the plaintiff and defendant five acres out of the tract, to be held by them jointly during the life of the plaintiff, at whose death the whole was to vest in the defendant Mrs. Adcock and her heirs. She also, at some time in 1879, made her will, by which she devised to plaintiff and defendant jointly the land in controversy, other property being also devised to them and other heirs. On the 22d of June, 1889, when the instrument in question was executed, Mrs. Collier sent for her attorney, and had him examine her will to see that all of the children were included, and that the property was properly disposed of. Finding that the will was as she desired it to be, she stated that she did not wish her homestead (the land in dispute) to be divided, but wanted it, with the five acres previously conveyed to plaintiff and defendant, kept together, and, at plaintiff's death, wanted it...