Knox v. Earbee

• Decision Date: 25 March 1896
• Citation: 35 S.W. 186
• Parties: KNOX et al. v. EARBEE.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

35 S.W. 186

KNOX et al. v. EARBEE.¹

Court of Civil Appeals of Texas.

March 25, 1896.

Appeal from district court, Falls county; John G. Winter, Special Judge.

Action by M. A. Earbee against J. F. Knox and others to cancel a deed. There was a judgment for plaintiff, and defendants appealed. Affirmed.

Rice & Bartlett, for appellants. J. A. Martin, for appellee.

FISHER, C. J.

The court below filed its conclusions of fact and law, which also state the nature and result of the suit. The findings are as follows:

"This suit was instituted in the district court of Falls county by petition, filed April 23, 1889, making J. F. Knox and his wife, Bettie Knox, defendants, to cancel a deed dated January 29, 1884, executed by plaintiff, M. A. Earbee, to Mrs. Bettie Knox, wife of the defendant J. F. Knox. First amended petition was filed July 19, 1889, and a second amended petition, upon which the cause was heard, was filed February 6, 1892. By first supplemental petition, filed July 17, 1893, and second supplemental petition, filed December 11, 1893, plaintiff suggested the death of Mrs. Bettie Knox, and made her children, Henry Earbee Knox, Ida Floyd Knox, and Corinne Knox,—the last two being minors,— parties defendant, alleging that the children named, together with her husband, J. F. Knox, were her only surviving heirs. The second amended petition alleges that the petitioner is the widow of Floyd Earbee, who died on the ____ day of January, 1884; that during the period of the marriage, by deed dated October 11, 1875, one Thomas Chubb conveyed to the said Floyd Earbee a parcel of land containing 4½ acres of land, situated in the city of Marlin, in said Falls county, and that the land so conveyed was occupied and improved, as the community property of the petitioner and her said husband, until his death as aforesaid; that, upon the death of her husband, petitioner, as the result of feeble health and mental distress, was incapable of thought or action, and incapable to transact any business; that, under these circumstances, placing full trust and confidence in her husband's relatives, she submitted to their suggestions in regard to the property left by him; that the only property left by the husband consisted of the aforementioned land and a life insurance policy, amounting to $800; that the defendant Bettie Knox was the sister of the deceased husband and of one Glover Earbee, a resident of the state of Mississippi, both of whom, with the defendant J. F. Knox, were present at the death of the husband; that the petitioner has no near kindred, or confidential friends or advisers; that the defendants Mr. and Mrs. Knox and the said Glover Earbee, intending to defraud petitioner, did falsely state and represent to the petitioner that the deceased husband had promised and agreed, some years prior to his death, to convey, by deed, to defendant Bettie Knox, one-half of the aforesaid lot of 4½ acres of land, and that, owing to the fact that said defendants had, with the permission of the husband, made some improvements on the land, and with like consent had occupied the same, coupled with the promises aforesaid, petitioner could be compelled to make a deed of conveyance to said Bettie Knox; and that petitioner, relying upon said representations, on the 29th of January, 1884, five days after the death of her husband, did sign a deed conveying to said Bettie Knox the whole tract of 4½ acres and the improvements thereon, reserving to herself a life interest therein. Petitioner alleges that the deed was prepared by the defendant Knox, who was a lawyer, and was executed by her under misrepresentations of facts and undue influence, made and exercised by the defendant Knox and wife and the said Glover Earbee, brother of her deceased husband. Petitioner further charges that the said Glover Earbee borrowed from her the proceeds upon the life of her husband, giving his note therefor, with interest at the rate of 10 per cent per annum, payable on demand, and as security for said payment waived his homestead right in the state of Mississippi. Petitioner alleges that the deed to Mrs. Knox was not her voluntary act, and was without consideration; that the conduct of the defendant Knox, who, with his wife and children, resided with her, was such as to compel petitioner to leave her home. She prays that the deed be canceled, for a writ of restitution, and for general relief. Defendants plead in answer, denying undue influence in the execution of the deed by Mrs. Earbee, and allege that the lot in controversy was purchased with money furnished to Floyd Earbee by Glover Earbee for the purpose of furnishing a homestead for Floyd Earbee and Mrs. Knox; that the defendant Knox erected valuable improvements upon said lots during the lifetime of said Earbee; that he (Knox) paid a part of the purchase money for the lot; that, in his lifetime, Floyd Earbee promised and agreed with defendant Knox, in consideration of such improvements, to convey one-half of the property to him (the said Knox) and his wife, Mrs. Bettie Knox, but that he failed and omitted so to do; that the conveyance by Mrs. Earbee was her voluntary act; that since the death of Floyd Earbee the defendant Knox has made valuable improvements on the property, and expended money for repairs, improvements, and taxes. Defendant prays that the deed from Mrs. Earbee to Mrs. Knox be established, and, in the alternative, that, if the deed be set aside, title be vested in defendants to one-half of the tract in controversy, and that in any event defendants be allowed the value of the improvements as a charge upon the property. It appears that, at the instance of the petitioner, the property was sequestered under a writ issued September 1, 1890, and was replevied by defendant J. F. Knox, then in possession,—the replevy bond being in the sum of $3,000, with J. F. Knox and Bettie Knox as principal, and H. Rickelmann and A. Haltmer as sureties.

"I find, as facts, that prior to and from a time after the war between the states, Dr. Floyd Earbee and the petitioner, his wife, lived in the state of Mississippi, upon a farm owned by Floyd Earbee, and that his mother, his younger brother, Glover Earbee, and his sister, Bettie Earbee, afterwards the wife of J. F. Knox, and the grantee in the deed involved in this suit, made their home with him, and were maintained with him. Glover, when a minor, enlisted in the Confederate army at an early period in the war. After the war he returned to his brother, Floyd Earbee, and made his home with him, assisting in work about the farm. Thereafter Floyd Earbee, with his wife, mother, and sister, Bettie Earbee, moved from Mississippi to Louisiana and made their home there; that, the family being thus constituted, the defendant J. F. Knox intermarried, December 25, 1870, with the said Bettie Earbee, and made his home with the said Floyd Earbee. Thereafter, in the year 1871, Floyd Earbee, with his wife and mother, came to Texas, and settled in Marlin. In July, 1874, Mrs. Knox joined them there, J. F. Knox soon...