Kuehn v. Kuehn

• Decision Date: 09 January 1924
• Docket Number: (No. 6695.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 259 S.W. 290
• Parties: KUEHN et al. v. KUEHN.
• Court: Texas Court of Appeals

259 S.W. 290

KUEHN et al. v. KUEHN.

(No. 6695.)^*

Court of Civil Appeals of Texas.

January 9, 1924.

Appeal from District Court, San Saba County; J. H. McLean, Judge.

Action by Emma Kuehn against R. W. Kuehn and others. Judgment for plaintiff and certain defendants appeal. Reformed and affirmed.

Ocie Speer, of Fort Worth, Jno. W. Estes, of Los Angeles, Cal., and Walters & Baker, of San Saba, for appellant North Texas Trust Co.

Flack & Flack, of Menard, for appellant R. W. Kuehn.

Wilson & Johnson, of San Saba, and Burney Braly, of Fort Worth, for appellee.

BAUGH, J.

This is the second time this case has been before this court on appeal. A full statement of substantially the same facts involved is found in 232 S. W. 918. A writ of error was granted, and the opinion of the Commission of Appeals is reported in volume 242, p. 719, of the Southwestern Reporter.

R. W. and Emma Kuehn were married about 1885 and lived together until 1914, during which time they accumulated most of the property involved in this suit. On July 28, 1915, they made a separation agreement whereby all their property was conveyed to J. E. Odiorne, as trustee, with the provision that Emma Kuehn be paid $10,000 by the trustee. It also provided that R. W. Kuehn assume all community indebtedness, and that after payment of the $10,000, the trustee convey all of said property to R. W. Kuehn. Emma Kuehn was granted a divorce on November 17, 1915, and on November 30, 1915, executed a confirmation deed to all said property to R. W. Kuehn, reciting a consideration of $10,000. Only $9,000 was ever paid her. On May 12, 1916, J. E. Odiorne, as trustee, conveyed all of said property to R. W. Kuehn. Kuehn and Odiorne were then partners in the cattle business. In 1916 and 1917 they became heavily involved and finally insolvent. In April, 1917, the appellant, North Texas Trust Company, obtained a judgment against them for $64,000, in Tarrant county, Tex., attached all the lands appearing in the name of R. W. Kuehn, foreclosed its attachment lien, bought in said lands at sheriff's sale, and credited the amount of its bid on its judgment.

The appellee, plaintiff below, filed suit on December 23, 1918, against appellants, seeking to annul, cancel, and set aside said separation agreement, and the deed confirming same, and also that of the trustee to R. W. Kuehn, on the ground that the former were procured through fraud, misrepresentation, overreaching, duress, and undue influence. In her prayer for relief she asked:

(1) That said deeds be canceled; that her title in the lands be declared superior to that of the North Texas Trust Company; that the value of her interest in the community property, both real and personal, on said July 28, 1915, be fixed, together with the profits derived from the lands since the North Texas Trust Company took possession of same; that said lands be partitioned and an amount set aside to her equal in value to her community interest at the date of the separation agreement, plus such share of the profits as she was entitled to.

(2) In the alternative plaintiff asked for cancellation of all said instruments so far as her individual half interest in the community real estate was concerned; that her interest in the personal property and profits from said land since the North Texas Trust Company took possession of same be fixed; that she have judgment against Kuehn for such value of the personalty and against the North Texas Trust Company for her share of the profits from the land since it took possession of same; that a partition of said lands be had, and that a lien be fixed and foreclosed against the trust company's interest in same, to secure her interest in the personalty and in the profits arising from the use of the lands.

(3) In the further alternative, that, if both the foregoing be found impracticable, then that the value of her interest in all the community property at the time she executed the separation agreement be fixed; that she have judgment against R. W. Kuehn for such value; that an equitable lien be fixed upon and foreclosed against the lands taken from R. W. Kuehn by the North Texas Trust Company; and that so much of said lands be ordered sold as were necessary to satisfy such judgment.

Plaintiff admitted in her pleadings receipt from R. W. Kuehn of $9,000, and asked that such amount be credited on her interest in the community property as same existed on the date the separation agreement was executed. The following, taken from appellants' brief, substantially states the issues raised by the North Texas Trust Company, one of the defendants, and appellee's reply thereto:

"The defendant the North Texas Trust Company answered by general denial and further pleaded estoppel as against plaintiff, in that the plaintiff, long prior to the filing of this suit, and after she had obtained a divorce from her former husband, R. W. Kuehn, conveyed to him by warranty deed the real estate described in her pleadings and permitted the title to said property to stand in his name and permitted him to borrow from the defendant company the sum of $64,000 while said property was standing in his name, and thus permitted him to obtain credit upon the faith of title appearing to be vested in him; the defendant further alleged that it recovered judgment against the defendant R. W. Kuehn and another in the sum of $62,400 and more, and under said judgment sold the lands in controversy, at which sale it became the purchaser without knowledge, actual or constructive, that the plaintiff was claiming any interest in the property; that it loaned to the defendant R. W. Kuehn the money for which such judgment was obtained after the plaintiff had executed a deed by which the title to the property in controversy was conveyed to the defendant R. W. Kuehn, believing said transfer to be legal and without knowledge or notice of plaintiff's claim to the property in controversy; that the plaintiff was estopped from setting up any claim in the property by reason of her conduct in conveying the same to R. W. Kuehn and permitting him to use, occupy, and control the property as his own. This defendant denied specially that there was any undue influence brought to bear upon the plaintiff by her husband, the defendant R. W. Kuehn; that the defendant R. W. Kuehn never deceived or misled the plaintiff in any way in regard to the property settlement; that the plaintiff, knowing the facts connected with said settlement made such settlement under the advice and counsel of her attorneys.

"This defendant pleaded in reconvention for a judgment in the alternative against plaintiff establishing a sum of money paid out in discharge of a note and lien of $7,500, a charge upon the lands in controversy, paid by it. It furthermore pleaded that the lands in controversy in Williamson county were the sole and separate property of defendant R. W. Kuehn, and the plaintiff had no interest in the same. This defendant prayed the plaintiff take nothing, and in the alternative that it have judgment for the sum and amount of the note and lien which it had paid.

"The defendant R. W. Kuehn adopted the answer of his codefendant, the North Texas Trust Company.

"By a first supplemental petition, the plaintiff denied generally and pleaded specially that she had no knowledge or notice that the defendant R. W. Kuehn was claiming or using the lands in controversy as his own; that the defendant North Texas Trust Company relied upon the personal security and not to any extent upon the apparent ownership of the defendant R. W. Kuehn of the lands in controversy. She pleaded the pendency of cause No. 2060 in the district court of San Saba county, wherein she was plaintiff, involving the lands in controversy as notice of her rights, and likewise pleaded a lis pendens filed for record in San Saba county, on the 28th of July, 1916. The defendant North Texas Trust Company replied by first supplemental answer excepting to the plea of lis pendens and notice, denying generally and denying specially the validity of the alleged lis pendens notice.

"The other defendants answered, but their answers present no question pertinent to this appeal."

The case was submitted to the jury on special issues. These issues and the jury's answers thereto were as follows:

"First: Was the tract of land in Williamson county, first purchased by R. W. Kuehn, and referred to by the evidence as containing 300 acres or more, the separate property of said R. W. Kuehn?" To which the jury answered: "Yes."

"Second: Was the tract of land in Williamson county, last purchased by R. W. Kuehn, and referred to as containing about 600 acres, the separate property of said R. W. Kuehn?" To which the jury answered: "No."

"Third: What was the total net value of the community property of R. W. Kuehn and his wife, Mrs. Emma Kuehn, on the 28th day of July, A. D. 1915, when said separation deed and agreement was executed?" To which the jury answered: "$47,000."

"Fourth: Did the plaintiff, Emma Kuehn, in the settlement of property rights between herself and R. W. Kuehn, receive the equivalent of one-half of the net value of said community property?" To which the jury answered: "No."

"Fifth: Was the defendant North Texas Trust Company induced to extend credit to defendant R. W. Kuehn, which would not otherwise have been extended, by reason of the separation deed and agreement dated July 28, 1915, and the deed from Mrs. Emma Kuehn to R. W. Kuehn, dated November 30, 1915, and the deed from J. E. Odiorne, trustee, to R. W. Kuehn, dated May 12, 1916, or either of them?" To which the jury answered: "No."

"Sixth: In the negotiations leading up to the separation agreement was J. E. Odiorne representing and acting as the agent of the defendant, R. W. Kuehn?" To which the jury answered: "Yes."

"Seventh: In the negotiations leading up to the separation agreement, was said J. E. Odiorne representing and acting as the agent of the plaintiff,...