Jones v. Ford

• Citation: 118 S.W.2d 333
• Decision Date: 22 April 1938
• Docket Number: No. 13751.,13751.
• Parties: JONES et al. v. FORD et al.
• Court: Court of Appeals of Texas

118 S.W.2d 333

JONES et al. v. FORD et al.

No. 13751.

Court of Civil Appeals of Texas. Fort Worth.

April 22, 1938.

Rehearing Denied June 24, 1938.

Appeal from District Court, Tarrant County; Walter L. Morris, Judge.

Suit by Emma Jones and others against W. S. Ford and another to cancel a deed. From a judgment sustaining a plea of privilege and ordering the cause transferred, the plaintiffs appeal.

Affirmed.

Clark & Stegall, of Fort Worth, for appellants.

James B. Henderson, Edwin T. Phillips, Jr., and Phillips, Trammell, Estes, Edwards & Orn, all of Fort Worth, for appellees.

SPEER, Justice.

Plaintiffs, Emma Jones and others, sued defendants, W. S. Ford and Roy L. Fisher, in the 67th District Court of Tarrant County, Texas, on May 21st, 1937, to cancel a deed conveying lands in Marion County, Texas, alleging that the defendants resided in the latter county, but that the deed sought to be canceled was procured by fraud and misrepresentations perpetrated and made in Tarrant County, Texas; it was claimed the deed had been recorded in Marion County and cast a cloud upon their title, and they prayed for a decree canceling the purported conveyance, "and that all claims of said defendants to any and all of said tracts of land above described, be cancelled and for naught held, and that the title in and to said lands be vested in plaintiffs according to their share under the laws of descent and distribution of the State of Texas, and for their damages against the said defendants," and for general and special relief.

Defendants timely filed their pleas of privilege to be sued in Marion County. Within the time prescribed by statute the plaintiffs filed their controverting affidavit, in which it was alleged the action was one to cancel and annul certain leases, assignments and deeds to certain lands in Marion County, Texas, "as shown by plaintiffs' petition which is attached hereto and marked Exhibit `A' and made a part hereof for all purposes." The controverting plea further stated that the relief sought was based upon the grounds of fraud perpetrated by defendants in Tarrant County, and that said suit comes within exception 7 of Article 1995, Rev. Civ.St., Vernon's Ann.Civ.St. art. 1995, subd. 7, and that "plaintiffs claim and seek only to cancel, annul and set aside said instruments." A copy of the original petition was attached to the controverting answer as alleged.

On May 21st, 1937, about a month after the plea of privilege and controverting affidavit were filed, the plaintiffs, with leave of court, filed an amended petition, in which they alleged their cause of action in substantially the same language as that used in the original petition, in so far as it charged a fraud in the procurement of the deeds and leases, but omitted the original allegation that said wrongful acts cast a cloud upon their titles and prayed for the cancellation of the instruments, omitting therefrom the relief sought in the original, which prayer was for removal of the cloud from title and divesting out of defendants and vesting in plaintiffs the title to the lands described.

On July 13th, 1937, the venue issues were tried to the court. Judgment was entered sustaining the plea of privilege and the cause ordered transferred to the district court of Marion County, Texas. The appeal is from that judgment.

No transcribed statement of facts proved, is before us, but the trial court filed his findings of fact and conclusions of law based thereon. No objection is made to the facts found; appellants (plaintiffs below) attack the conclusions of law found by the court, upon which the decree was entered.

The fact findings by the court relating to the controversy were substantially as follows: The plaintiffs (appellants) were the owners of the real estate described in their pleadings, prior to the time of the wrongs complained of; that on about May 15th, 1936, defendants (appellees), in Tarrant County, Texas, by fraud, deceit and misrepresentation, procured from plaintiffs the leases and deed sought to be canceled. It was further found as a fact that the original petition of appellants contained allegations that the instruments had been placed of record in Marion County, and cast a cloud upon plaintiffs' title, and that prayer was for the cancellation of instruments and the removal of the cloud; that the controverting affidavit made the petition a part thereof, and, among other things, stated: "Plaintiffs claim and seek only to cancel and annul and set aside said instruments." That after the filing of the plea of privilege and controverting plea, plaintiffs filed their amended petition, by which they only sought a cancellation and rescission of said instruments, with general and special relief, both in law and equity, including costs, and omitted from their amended pleadings any prayer for removal of the cloud, divestment of title out of defendants and investment in them.

The conclusions of law filed by the court, upon which judgment sustaining the plea was entered reads: "From and under the foregoing findings of fact, the court concluded and found as a matter of law that subdivision 7 of Article 1995 (Vernon's Ann.Civ.St. art. 1995, subd. 7) did not apply in this case, but that subdivision 14 of Article 1995 applied and that said plea of privilege should be sustained, which was accordingly done by the judgment and order heretofore entered on said plea of privilege."

Subdivision 7 of the general venue statutes, Article 1995, R.C.S. (Vernon's Ann. Civ.St. art. 1995 subd. 7) reads: "7. Fraud and defalcation.—In all cases of fraud and defalcation * * * suit may be brought in the county in which the fraud was committed or defalcation occurred or where the defendant has his domicile."

Subdivision 14 of the same venue statute reads: "14. Lands.—Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie."

There can be no serious doubt that appellants' action as disclosed by their original petition, is one coming under the provisions of subdivision 14 of Article 1995. They do not deny this; in fact, with commendable frankness upon the part of their counsel, it is admitted that the amended pleading was filed for the purpose of avoiding that contingency. They contend that by the subsequent amendment, the former pleadings were abandoned and were superseded for all purposes. They cite Article 2001, R.C.S., and cases construing that article. As a general rule, their contention is sound, but we do not believe the amendment filed in the main suit on its merits, and not designed as an amendment to the pleadings in the venue question, as well as the original action, will serve that purpose. We are cited to the case of People's National Bank v Montgomery, Tex.Civ.App., 37 S.W.2d 1111, as supporting the contention. That was a suit for specific performance of a contract to convey land, as disclosed by reference to a companion case, Montgomery v. Owen, 37 S.W.2d 1107, in which the amended pleading was by reference made a part of the controverting affidavit. The court there held that a party's right to amend his pleadings under Article 2001, R.C.S., was in no wise impaired because a plea of privilege had been interposed by an adversary based upon the original pleadings. With respect to pleas of privilege and controverting affidavits, it was there said (page 1112): "The right to amend pleas of privilege and controverting affidavits may be exercised by the parties filing same under said article 2001; same being pleadings of the parties." The correctness of the rule there announced cannot be successfully assailed. But as we understand the amendment filed in the case before us, it was not designated nor intended as an amendment to the pleadings in the venue issue; its effect was limited to a substitution of the original petition in the main suit.

Appellant calls our attention to the case of Witt & Sons v. Stith, Tex.Civ.App., 265 S.W. 1076, as one in which the amended petition was substituted for the original that had been plead in connection with a controverting affidavit. But in that case the amendment was designated by the pleader as (page 1077)...