Joy v. Joy

Decision Date17 October 1941
Docket NumberNo. 2165.,2165.
Citation156 S.W.2d 547
PartiesJOY v. JOY.
CourtTexas Court of Appeals

Appeal from District Court, Kaufman County; G. O. Crisp, Judge.

Suit by Helen Ruth Joy, as guardian of the person and estate of her husband M. A. Joy, Jr., against M. A. Joy, Sr., for cancellation of an instrument allegedly executed by M. A. Joy, Jr., at a time when he was of unsound mind. From a judgment in favor of plaintiff, defendant appeals.

Judgment reversed and cause remanded.

Thompson, Knight, Baker, Harris & Wright, of Dallas, Bond, Crofts & Bond, of Terrell, and Fred T. Porter, of Kaufman, for appellant.

Thompson & Meek and Paul McCarroll, all of Dallas, and C. S. Bradley, of Croesbeck, for appellee.

GRISSOM, Justice.

Helen Ruth Joy, guardian of the person and estate of her husband, M. A. Joy, Jr., instituted this suit against M. A. Joy, Sr., for the purpose of canceling an instrument executed by M. A. Joy, Jr., in November, 1933, and designated in the record as a "Release and Conveyance." She alleged that Mrs. Emma Gertrude Joy (mother of M. A. Joy, Jr., and wife of M. A. Joy, Sr.) died in June 1932 leaving a valuable estate; that in 1932 Joy, Sr., filed an application to probate her will dated April, 1917; that the court admitted the will to probate; that in May, 1933, M. A. Joy, Jr. (hereinafter referred to as Martin), filed a contest of said will and sought to set aside the order admitting it to probate and urged the probate of a will dated July, 1918; that while this contest was pending Martin executed the instrument in question in which it was recited that for a consideration of $1 and the love and affection he had for his father that he sold and conveyed to his father all of his rights or claims to the estate of his deceased mother. The instrument recited it was intended as a conveyance of all property of all kinds which Martin had or claimed either as an heir or devisee of his mother, and all rights that Martin had in the cause of action he had instituted for the contest of the will probated by his father, or under the will which he sought to have probated as the last will of his mother. Plaintiff alleged that the defendant falsely represented to Martin that he had no interest in his mother's estate; that she had executed a valid re-affirmation of her 1917 will in 1926 and again in 1932; that said representations were false; that Martin's interest in Mrs. Joy's estate was in excess of $150,000; that Martin was insane when he executed the "Release and Conveyance"; that the consideration received by Martin therefor was $51, $50 of which was paid in the guise of a loan. Plaintiff alleged that said instrument constituted a cloud upon Martin's title to his interest in the estate of his deceased mother, and that said instrument should be canceled because of Martin's insanity at the time he executed it. The defendant, among other things, pleaded the four years' statute of limitations. Art. 5529.

At the conclusion of the evidence the cause was submitted to a jury on one issue which was answered favorably to plaintiff. The court rendered judgment canceling the release executed by Martin to his father in November, 1933. The judgment recited that before the charge was submitted defendant represented he did not desire the submission of the issue of limitation. From this judgment the defendant has appealed.

Appellee introduced in evidence the judgment of the County Court of Dallas County rendered in April, 1939, decreeing Martin to be of unsound mind and appointing his wife his guardian. The issue made by the pleadings and the evidence was whether Martin was of unsound mind in November, 1933, when he executed the instrument denominated a "Release and Conveyance." That issue was submitted to the jury. Another issue was made by the pleadings but was not submitted and its submission was not requested by defendant. That was the issue of limitation; that is, whether appellee's suit was barred by the four years' statute of limitations, Art. 5529. The judgment of the County Court in April, 1939, decreeing that Martin was then of unsound mind did not tend to prove, and was not admissible in evidence on the issue as to whether Martin was of unsound mind in November, 1933, when he executed the release and conveyance to his father. Uecker v. Zuercher, 54 Tex.Civ.App. 289, 118 S.W. 149, 152, writ refused; Black v. Boyer, Tex Civ.App., 21 S.W.2d 1094, writ dismissed; Wright v. Matthews, Tex.Civ.App., 130 S.W.2d 413.

We are further of the opinion that the 1939 judgment of insanity was not material to the issue of limitation. If at the time Martin executed the instrument in November, 1933, or at any time thereafter Martin was sane, limitation then began to run and continued to run, regardless of whether Martin was insane in 1939 when he was so adjudged by the County Court and his guardian appointed. Article 5544 provides "* * * when the law of limitation shall begin to run, it shall continue to run, notwithstanding any supervening disability of the party entitled to sue or liable to be sued." Hoencke v. Lomax, 55 Tex.Civ.App. 189, 118 S.W. 817, 819, writ refused, 102 Tex. 487, 119 S.W. 842; Kimmell v. Tipton, Tex.Civ. App., 142 S.W.2d 421, 431; Chandler v. Alamo Mfg. Co., Tex.Civ.App., 140 S.W. 2d 918, 921; Kuhlman v. Dickson, Tex. Civ.App., 233 S.W. 338, 339.

The 1939 judgment of insanity appears to have been introduced upon the theory that it was necessary for appellee to prove the guardian had legal capacity to sue and recover as such. Article 2010 provides that an answer alleging, among other things, "2. That the plaintiff has not legal capacity to sue. 3. That the plaintiff is not entitled to recover in the capacity in which he sues", unless the truth thereof appears of record, shall be verified by affidavit. The guardian's lack of capacity to sue and recover as such did not appear of record, and the defendant did not make an issue of the right of the guardian to maintain the suit and recover in her capacity as guardian. In the absence of such a pleading by the defendant, there was no issue before the court as to the guardian's legal capacity to sue and recover in her capacity as guardian. We conclude, therefore, that the judgment of insanity and order appointing Mrs. Joy guardian was not admissible for said purpose. Pierce v. Baker, Tex.Civ. App., 143 S.W.2d 681, 682, writ refused; Dolsen v. DeGanahl, 70 Tex. 620, 8 S.W. 321; Schlottmann v. Wiese, Tex.Civ.App., 86 S.W.2d 44, 49; Kaack v. Stanton, 51 Tex.Civ.App. 495, 112 S.W. 702, writ refused. After a careful consideration of the questions presented by the appellant's first eight assignments of error, we have concluded that the court erred in admitting in evidence the order of the court adjudging Martin to be of unsound mind in April, 1939. We are further of the opinion that under the pleadings and conditions that existed on the trial of this cause it was error to advise the jury that Martin had been adjudged of unsound mind.

Plaintiff introduced in evidence a part of Martin's army record, including his enlistment record, court martial record, record of physical examination, certificate of disability for discharge, medical cards, statistics cards, clinical records, proceedings of the board of medical officers and his medical history while in the United States army. These instruments showed his enlistment in the United States army; that he was tried three times in 1917 by a court martial; that he was sentenced to confinement at hard labor for four months and to forfeit two-thirds of his pay for such period; that he was examined by a board of medical officers convened at the base hospital at Camp Bowie, which board after a careful consideration of all the evidence obtainable, and a thorough examination of Martin found Martin to be unfit for service as a soldier because of his "constitutional psychopathic state" which was found to have existed prior to his enlistment, and that such incapacity caused him to be unreliable and a constant annoyance to the command. It further found that he could be released without endangering his life or the lives of others. It was recommended that he be discharged on a certificate of disability, not incurred in line of duty. The records further showed that Martin was a frequent military offender and had spent as much time in the guard-house as he had doing duty. That the "cause of his disease or circumstance under which it appeared" was "unknown". That he was, in view of his occupation as a surveyor, disabled from earning subsistence to the extent of one-fifth. That Martin had been, prior to the finding of the board of medical examiners, under their observation for a period of one week. The record showed the following findings with reference to Martin: "Constitutional psychopathic state. Inadequate personality and borderline criminalism. In line of duty: No. Date of injury or onset of disease: Congenital. Reason for examination: To determine fitness for service." Said records were severally objected to as being ex parte, hearsay, immaterial, irrelevant and incompetent, and as having no probative force in determining the mental condition of Martin at the time he executed the instrument involved, about 15 years thereafter, and as being too remote. The action of the court in overruling said objections and in permitting the introduction of the War Department records are assigned as error and are presented here by appellant's ninth to fifteenth propositions, inclusive.

U.S.C.A. Title 28, sec. 661, provides that copies of records or documents in any of the executive departments authenticated under the seal of such department shall be admitted equally with the originals thereof. We are of the opinion that the diagnosis of the army doctors is admissible in evidence as tending to prove Martin's mental condition at said time. We do not believe that the recitals...

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