Knight v. Waggoner

• Decision Date: 30 April 1919
• Docket Number: (No. 1514.)
• Citation: 214 S.W. 690
• Parties: KNIGHT v. WAGGONER et al.
• Court: Texas Court of Appeals

Page 690

214 S.W. 690

KNIGHT v. WAGGONER et al.

(No. 1514.)

Court of Civil Appeals of Texas. Amarillo.

April 30, 1919.

Rehearing Denied June 25, 1919.

Appeal from District Court, Wichita County; Edgar Scurry, Judge.

Suit by Olga V. Knight, as guardian of the estate of Mrs. C. E. Rogers, a lunatic, against W. T. Waggoner and another. Judgment for defendants, and plaintiff appeals. Reversed, and cause remanded.

M. M. Hankins and W. T. Perkins, both of Quanah, and A. H. Carrigan, of Wichita Falls, for appellant.

Miller & Miller, of Ft. Worth, and J. T. Montgomery, of Austin, for appellees.

BOYCE, J.

This suit was brought by appellant, Olga V. Knight, as guardian of the estate of Mrs. C. E. Rogers, a lunatic, against appellees, W. T. Waggoner and Joe Terry, to recover certain land in Wilbarger and Wichita counties. The suit was filed in the district court of Wichita county on February 6, 1911, and is numbered 4043 on the docket of said court. In addition to the regular allegations of a suit in trespass to try title, plaintiff specifically sought to set aside a conveyance of said land made by the said Mrs. C. E. Rogers to Joe Terry, dated March 6, 1906, and a judgment of the district court of Wichita county dated January 31, 1907, rendered in cause No. 3607, in favor of the said W. T. Waggoner and against the said Mrs. C. E. Rogers for said land and confirming said deed. Plaintiff alleged that the said Mrs C. E. Rogers had been for a long time prior to the sale of said land and up to the time of the trial of the present suit continuously insane; that she was incapable of making a valid contract for the sale of said property; that this fact was known to the said W. T. Waggoner and Joe Terry, but said persons, for the purpose of procuring the title to said property for less than its true value, and in a manner not authorized by law, procured said conveyance from said insane person to be made to the said Terry upon an insufficient consideration; that the said Terry was acting for the said W. T. Waggoner in such matter, and on the same date of conveyance from Mrs. Rogers conveyed said land to said Waggoner, who in fact paid the consideration therefor; that the said W. T. Waggoner on October 12, 1906, as a part of the said plan to acquire said land and to cover up the fraud by judicial sanction, instituted said suit No. 3607, and procured judgment to be rendered therein; that the plaintiff in said suit fraudulently and falsely represented to the court that Mrs. Rogers was sane at the time of the conveyance by her, and that the sale was in all things fair; that upon said hearing L. H. Mathis was appointed guardian ad litem for Mrs. Rogers; that he was disqualified from acting by reason of being interested in said suit, and made no defense thereto, but judgment was entered upon admissions made by the said guardian ad litem upon hearing of said cause. The plaintiff tendered to the defendant Waggoner the amount paid for said land. The defendant, in addition to exceptions and general denial, pleaded res adjudicata, setting up in detail in support of this plea the facts as we shall hereafter state them.

Upon trial the court instructed the jury peremptorily to find for the defendant; this charge being "founded upon his conclusion that no testimony whatever has been introduced tending to raise the issue of fraud in the rendition of the judgment in cause No. 3607."

Evidence was introduced upon the trial that would have warranted the jury in finding the following facts: Mrs. Rogers conveyed the land to Joe Terry by deed dated March 6, 1906. Terry on the same day conveyed the land to defendant Waggoner, who was in fact the purchaser from Mrs. Rogers. The deeds from Mrs. Rogers to Terry and from Terry to Waggoner were in the handwriting of L. H. Mathis, and the acknowledgment of Terry to the deed made by him was taken by the said Mathis. The consideration from Waggoner was paid to Mathis for Mrs. Rogers, and he received a commission of $150 out of such proceeds. Mrs. Rogers was at this time, and had been for several years prior thereto, insane, and this fact was known to the defendant Waggoner. The land was worth from $5 to $10 more per acre than the price paid for it—$10 per acre. Mrs. Rogers, after the sale, did not vacate the premises, and on October 6, 1906, Waggoner filed suit, No. 3607, against her for the recovery of the land; the petition being in the regular form of trespass to try title. No mention of the insanity of the defendant was made in this pleading, but on January 23, 1907, plaintiff's attorney suggested to the court that the defendant was insane; whereupon the court appointed L. H. Mathis as guardian ad litem for Mrs. Rogers. Plaintiff's attorney testified that he did not remember that he suggested that Mathis be appointed, though he knew that such attorney had been representing Mrs. Rogers in certain transactions, and he may have done so. On January 31, 1907, said guardian ad litem filed an answer, setting up the fact that the defendant still had on hand "the entire proceeds of the sale to Joe Terry, less certain small amounts actually used by her for the necessary expense incident to the consummation of the sale of said land"; that the defendant at the time of the answer was of unsound mind as to certain subjects, and should not be intrusted with the exclusive possession of said money; that the sale of the land to Terry was a fair transaction; that the defendant, at the time, understood the nature and consequences of her act therein; that she had received the reasonable value of said land; and that it was to her best interests that said sale should be confirmed. In a supplemental petition replying to this answer plaintiff alleged that Joe Terry purchased the land, paying full value therefor in good faith, believing defendant was sane, and that after Terry procured the deed he sold the land to plaintiff. In this pleading a statement is made of the amount paid Mrs. Rogers and the disposition she had made of the same, and it appears therefrom that the "sum of $150 was paid to L. H. Mathis as a commission on the sale of said land, he acting as agent for the defendant." Plaintiff again prayed that he recover the land, or in the alternative that he have judgment for the money paid defendant and it be decreed to be a lien on said land. On the trial of said cause the deeds from Mrs. Rogers and from Terry to Waggoner were introduced, and the guardian ad litem made a verbal statement, whether under oath or not does not appear, to substantially the same effect as made in the answer filed by him. No other evidence was introduced, and on January 31, 1907, judgment was entered in which it was found by the court:

That "Mrs. C. E. Rogers was sane at the time of the execution of the deed to Terry; that said sale was in all respects just and fair and free from any fraud, and was made in good faith by the said Terry, and that said land was sold for its full and fair value, and that it is for the best interest of the plaintiff (it is apparent that the use of the word `plaintiff' here instead of `defendant' was the result of clerical error) that the said trade be not canceled."

And upon such finding judgment was rendered for the plaintiff. Appellant was appointed guardian of the person and estate of Mrs. Rogers, who was at the same time adjudged to be a lunatic, in February, 1910.

The facts on which appellee founded his plea of res adjudicata are as follows: There was a mistake in the entry of judgment in cause No. 3607, as rendered and entered on January 31, 1907, the land being described therein as section 92, instead of section 2, the proper description. After the filing of this suit, No. 4043, plaintiff, in cause No. 3607, filed a motion to correct said entry, serving notice of said motion on Mrs. Rogers, L. H. Mathis, guardian ad litem in cause No. 3607, and on Mrs. Knight, the legal guardian of Mrs. Rogers. On the hearing of said motion the court appointed M. M. Hankins guardian ad litem to represent Mrs. Rogers in such matter. The guardian ad litem so appointed and the appellant filed separate answers to said motion, though they were the same in substance. Following a general denial and plea of limitations, these answers set out in what is termed a "special answer" to said motion substantially the same facts as are alleged in the petition in this cause, and prayed that said deed and the judgment in cause No. 3607 be canceled and set aside, and that defendant recover title and possession of said land. In the answer filed by appellant the pendency of said cause No. 4043 was suggested, and the court was asked to consolidate the "suit to correct the judgment with said cause No. 4043." These answers were filed on July 18 and 19, 1911. No reply to the answer was filed by the defendant. On hearing of the motion to correct judgment these answers, in so far as issues were presented by the special allegations referred to, were apparently ignored. The only evidence offered on the hearing of the motion was as to mistake in the entry of the judgment, and on July 19, 1911, the court sustained the motion to correct the judgment in cause No. 3607, and entered an order to such effect. This order, among other things, recited:

"On this day came on to be heard by the court the motion hereinbefore filed by the plaintiff * * * to correct the entry upon the minutes of this court of the judgment herein rendered on the 31st day of January, 1907, so that the entry upon the minutes of said judgment should conform to the judgment actually rendered by the court, * * * and the court, having heard said motion, the evidence introduced, the argument of counsel, and being fully advised as to the law, is of the opinion that said motion is well taken and should be sustained. It is therefore ordered, adjudged, and decreed by the court that the entry of the judgment rendered herein * * * be corrected * * * so as to hereinafter read as...