Jones v. Day

• Decision Date: 21 June 1905
• Parties: JONES v. DAY et al.
• Court: Texas Court of Appeals

88 S.W. 424

JONES v. DAY et al.

Court of Civil Appeals of Texas.

June 21, 1905.

Appeal from District Court, Franklin County; P. A. Turner, Judge.

Action by C. J. Jones against Ledger Day and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

L. L. Wood, for appellant. R. T. Wilkinson, for appellees.

EIDSON, J.

This suit was brought by appellant against the appellees, Ledger Day, Della Day, J. J. Bennett, Sarah Bennett, W. E. Riddle, and Alice Riddle, for partition of three promissory notes, each for the sum of $400, of date August 1, 1901, due, respectively, January 1, 1904, 1905, and 1906, signed by the defendant W. E. Riddle, and payable to Lydia Bennett, Alice Riddle, and Della Day; said notes bearing 10 per cent. per annum interest, payable annually to appellee Sarah Bennett. It is alleged that the defendants J. J. Bennett and Sarah Bennett are husband and wife, and that Lydia Bennett, Della Day, and Alice Riddle were their only children; that Ledger Day is the husband of Della Day, and that W. E. Riddle is the husband of Alice Riddle; that Lydia Bennett married the appellant, C. J. Jones, after the notes were executed, and died without issue; that said notes were given in consideration of a tract of land deeded by J. J. Bennett, Sarah Bennett, Lydia Bennett, Ledger Day, and Alice Day to W. E. Riddle on the same day the notes were executed, and the vendor's lien retained; that the principals of these notes belong to appellant, Alice Riddle, and Della Day, and the interest thereon to Sarah Bennett; and appellant prays for partition. Alice Riddle and W. E. Riddle answered, confessing the facts as set up in appellant's petition, and joined him in the prayer for partition. J. J. Bennett, Della Day, and Ledger Day, on the day of and before the trial, filed disclaimers. Sarah Bennett answered, claiming to be the owner of the three notes, and denied the appellant's right to partition. She admitted that the principals of the notes were expressly made payable to her said children, and that the interest was expressly made payable to her, but alleged that there was a contemporaneous parol agreement that the principals of the notes should not be paid to the children during her life, but were to be paid to her, as well as the interest. Sarah Bennett also alleged in her answer that the notes described in appellant's petition were given as the purchase money for land that was her separate property and her homestead, and that the parties named as payees in said notes had no interest in said land, and that it was agreed by all parties that the notes were not to be paid to the payees therein named, except in the event of her death before maturity of them; that said notes were negotiable and were delivered to her, and that she had had possession of them all the time since their execution, and that said notes constitute the only property she has. It was shown by the evidence that at the time of the execution of said notes, since and at the date of the trial, the said Sarah Bennett and her husband, J. J. Bennett, were separated and not living together. The case was submitted to the court without a jury, and judgment was rendered in favor of Ledger Day, Della Day, and J. J. Bennett on their disclaimers and in their favor for costs, and that appellant, plaintiff below, take nothing by his suit, and that Sarah A. Bennett is the legal and equitable owner of the notes described in appellant's petition, and in her favor for costs of suit against appellant, plaintiff in the court below, and W. E. Riddle and Alice Riddle, defendants in the court below.

Appellant's first, second, third, and fourth assignments of error are presented together, and are as follows: "(1) The court erred in admitting in evidence the following testimony of R. L. Day: `I remember the circumstances of this deed having been made. I know why the notes were made payable as they were. They were made payable this way to pacify Mrs. Bennett. At that time Mr. and Mrs. Bennett were separated. She did not want him to have any of the land or any of the proceeds of the land. These notes were made payable to the children to keep him from getting any of it after Mrs. Bennett's death. They were made payable to the children to make them their property as long as she lived'—over plaintiff's objection, as shown by bill of exception No. 1. (2) The court erred in admitting in evidence, over plaintiff's objection as shown by bill of exception No. 2, the following testimony of Sarah A. Bennett, to wit: `It was understood by all the parties that the notes were to be paid to me if I was alive, but, being in bad health, I had them made payable to my children, in order that J. J. Bennett could not collect them at my death. ...