Kocourek v. Mark

• Decision Date: 11 January 1881
• Docket Number: Case No. 1239.
• Citation: 54 Tex. 201
• Parties: MARY KOCOUREK v. MARK ET AL.
• Court: Texas Supreme Court

54 Tex. 201

MARY KOCOUREK

v.MARK ET AL.

Case No. 1239.

Supreme Court of Texas.

Jan. 11, 1881.

APPEAL from Fayette. Tried below before the Hon, L. W. Moore.

Appellant, Mary Kocourek, filed her original petition on the 9th day of April, 1880, in which she alleged the following facts, viz.:

That on the 15th day of February, 1880, appellant and her husband, Joseph Kocourek, one of the appellees, were seized and possessed of five tracts of land, containing in the aggregate 221 acres, particularly described in her petition; that appellant and her husband lived on the land, and it was their homestead; that on the 16th of February, 1880, appellant's husband, against her express protests, sold and conveyed to F. Marak, one of the appellees, her said homestead, by executing to him a deed of conveyance therefor, the consideration of which sale was a deed of conveyance to appellant's husband from said F. Marak and his wife, executed on the same day, and conveying to her husband 152 acres of land out of the Wm. Brookfield league, in Fayette county, Texas, with improvements thereon, consisting of an old dwelling house, one saw and grist mill and cotton gin, run by steam power.

That appellant and her husband executed to F. Marak, on the 16th day of February, 1880, one note for $670, with ten per cent. interest from March 25, 1880, and due on the 25th of September, 1880; that appellant's husband transferred to Marak three notes, amounting to $1,200, bearing ten per cent. interest from date, dated the 22d day of September, 1879, executed by Jacob Gela to appellant's husband as part consideration for land sold said Gela by appellant's husband, and due respectively one, two and three years after date; that all of those four notes were given to Marak by appellant's husband as additional consideration for the 152 acres of land.

That by threats of being abandoned by her husband, which were made by him on several occasions prior to her signing and acknowledging the deed of conveyance, appellant was induced to sign and acknowledge the deed before Stephen Kubala, notary public for Fayette county, Texas; that Marak was cognizant of the fact that appellant's husband had to use force and threats to induce her to sign and acknowledge the deed; that about five days prior to the sale of the homestead to Marak, he came to appellant's homestead to look at the same, and when her husband told her that he intended to sell it to Marak for his place, she, appellant, protested against the sale, urging as reasons, that they had a good home, which she was not willing to trade for another place that had nothing more on it than an old dwelling house and some machinery which had to be run by steam; that her husband knew nothing about working steam machinery; that she would not sign the deed; all of which protests were utterly disregarded by her husband, and in answer thereto he threatened to abandon her, should she refuse to sign the deed of conveyance when he requested her so to do.

That on the 16th day of February, 1880, appellant's husband got her to go with him to her brother's home, and when they arrived there Stephen Kubala, the notary, handed appellant an instrument of writing and asked her to sign and acknowledge the same; that when she found it to be a deed of conveyance, by which her husband intended to convey her homestead to Marak, she positively refused to sign and acknowledge it, which fact was reported to her husband and Marak by said Stephen Kubala; that appellant's husband then and there stated, in the presence and hearing of said F. Marak, he would leave and abandon appellant if she would not sign and acknowledge said deed; that on the way to the home of appellant and her husband, appellant was induced by her husband to stop at the house of the Maraks, her husband going into the house a little in advance of her. On nearing the house, appellant heard her husband say to Marak: “It is all right now; my wife is here and will sign the deed; and if she should persist in refusing to sign it, I will leave her forever.” That appellant knowing her husband to be a man who would carry out his threats, and choosing rather to lose her homestead than her husband, did then and there, by reason of the threats, sign and acknowledge the deed of conveyance before Stephen Kubala, who was then and there at the house of Marak and heard the threats; that appellant never gave her voluntary and free consent to said deed of conveyance, and that said deed and note from appellant and her husband to said F. Marak were taken away from her said husband by force by said Marak.

The petition contains other allegations not necessary to notice. A demurrer to the...