"This suit was filed by appellant, a feme sole, against the appellees, R. W. Kuehn and the North Texas Trust Company, on the 23d day of December, 1918, and, by amended petition, appellees H. T., H. F., Gus, and Ella Behrens, were made new parties defendant on the 4th day of October, 1919. The action was brought to cancel and set aside an agreement of separation and settlement of property rights by and between appellant and appellee R. W. Kuehn, formerly appellant's husband, executed by them on the 28th day of July, 1915, a deed in ratification thereof executed by appellant on the 30th day of November, 1915, and a deed from J. E. Odiorne, trustee named in the separation agreement, to appellee R. W. Kuehn, executed on the 12th day of May, 1916, on the grounds that the terms of the settlement were wholly unfair, inequitable, wanting of sufficient consideration, and that such agreement and deed in ratification thereof were obtained from appellant by fraud, duress, coercion, and undue influence practiced upon her by appellee R. W. Kuehn personally, and through one J. E. Odiorne as his agent; for the determination of appellant's one-half interest in the real and personal estate of herself and husband, at the date of their separation, and establishment and recovery, based thereon, of her equitable interest in the lands described in her petition from the appellee North Texas Trust Company, a corporation, which was in possession of the lands by virtue of sheriff's deeds, which it obtained at its own execution sales against appellee R. W. Kuehn; for a partition of the
lands in controversy as against appellee North Texas Trust Company and the Behrenses; the latter appellees having an undisputed interest in one of the tracts involved. In the alternative the court was asked to determine the value of the equitable interest of appellant at the time of the separation in the community estate of herself and former husband, and fix a lien against the lands in controversy in her favor for such amount as should be found due her, and in further alternative for damages against R. W. Kuehn and North Texas Trust Company.
"By her first amended original petition plaintiff (appellant) alleged, in substance: That she was married to the defendant R. W. Kuehn in or about the year 1885, and was divorced from him, in a divorce action brought by her grounded on acts of extreme cruelty and inhuman treatment committed against her by defendant Kuehn, by a decree of the district court of San Saba county, Tex., entered on the 17th day of November, 1915; that during the time plaintiff and defendant R. W. Kuehn lived together as husband and wife they accumulated community property, real and personal, and had such property, at the time of their separation on the 28th day of July, 1915, of the net value of $67,780; that prior to, and at the time of the execution of the separation agreement between plaintiff and defendant, R. W. Kuehn, said R. W. Kuehn, acting by and through one J. E. Odiorne, as his agent, proposed to plaintiff that they settle their property rights outside of court, and that then plaintiff would be free to obtain a divorce in a suit not involving property rights, and that J. E. Odiorne, as agent for R. W. Kuehn, represented to appellant that R. W. Kuehn was heavily involved financially, and that after his debts were paid he would only have about $20,000 left of community property, and that therefore plaintiff would be entitled to only $10,000 as her portion of the community estate; that plaintiff agreed to and executed the separation agreement, and subsequently the deed of ratification believing that the representations of R. W. Kuehn, through his agent, J. E. Odiorne, were true; that plaintiff did not have the advice of an attorney or any other friendly person capable of advising her in such transactions; that she had no independent knowledge of her husband's financial difficulties and obligations, he having always had the separate management of their community interests, and that she, being unlettered and unlearned, was wholly ignorant of business affairs; that she was worn out, sick, discouraged, and so mentally distressed over the conditions of her marital relations with defendant R. W. Kuehn at that time that she was induced to accept less than the value of her equitable portion of such property in settlement, and that she did so in order to have peace and rest for her mind and body; that she relied upon the truthfulness and representations of the said J. E. Odiorne, agent for R. W. Kuehn, as to the value of their community property and as to the financial difficulties and indebtedness of the said R. W. Kuehn, which representations were, in substance and effect, that the community property of plaintiff and defendant Kuehn was at that time worth, net, the sum of $20,000; that defendant Kuehn further promised at that time that he would take care of, support, and educate Leona, the only child of their marriage, and that he would make an absolute deed of conveyance of their homestead property near the town of San Saba, consisting of 135 acres of valuable farming land, with improvements thereon, together with all household effects, to their said daughter, Leona, as soon as plaintiff executed the proposed separation agreement; that said Odiorne, as agent for defendant Kuehn, then and there threatened plaintiff that, unless she agreed to the proposed settlement, defendant Kuehn would ruin her character in any divorce proceeding she might bring, and prevent her from obtaining a divorce, as well as any part of the property; that such representations as to the net value of the community estate were false and untrue; and that defendant, Kuehn knew them to be untrue.
"Plaintiff further alleged that defendant Kuehn refused to pay the full sum of $10,000 as agreed upon in such settlement, but paid only the sum of $9,000 (the receipt of which she acknowledged, and the court was asked to take that amount into consideration in arriving at the equities of the parties to the suit); that defendant Kuehn wholly failed and refused to convey the homestead to their daughter, Leona, and that his promise to so convey was substantial part of the consideration that moved appellant to make such settlement; that at the time of the filing of the suit it had become impossible for the said R. W. Kuehn to execute his promise to so convey said homestead, he having lost all of his title and interest in the real estate formerly constituting a part of their community estate, through a course of squandering and waste and bad business dealing, which resulted in a large personal judgment being obtained against him by defendant North Texas Trust Company, on which judgment executions were issued and levied upon all of the lands in controversy in this suit; that to the extent of the $1,000 cash which was never paid to plaintiff and the value of said homestead, alleged to be $7,500, the insufficient consideration for such settlement had failed; that defendant R. W. Kuehn had become, at the time of the filing of the suit, totally insolvent, and that by reason of which a personal judgment against him for such amount as plaintiff might show herself entitled to would be worthless, and she could not thereby be compensated for her losses; and that by reason of all the facts alleged she was entitled to have all of her equities and right of recovery enforced against the lands and premises which plaintiff and defendant Kuehn owned at the time of their separation, standing in the name of the North Texas Trust Company at the time of filing of the suit.
"As to the claim of the North Texas Trust Company, defendant, plaintiff alleged that it, having obtained a judgment against defendants R. W. Kuehn and J. E. Odiorne in the district court of Tarrant county, and having fixed attachment liens and foreclosed the same on the lands in controversy in this suit, bought in said lands at its own foreclosure sales as under execution, obtaining deed thereto from the sheriffs of Williamson and San Saba counties, Tex.; that defendant North Texas Trust Company did not pay a valuable consideration for said lands
at the sundry sheriff's sales, but merely credited the amount of its bids on the judgment which it held against R. W. Kuehn and J. E. Odiorne; that the judgment obtained against R. W. Kuehn and J. E. Odiorne, and the sale of the lands thereunder, was without the knowledge or consent of plaintiff, and that at such time the North Texas Trust Company had knowledge and notice of plaintiff's claim and equity in the lands, and of the fraud and undue influence that had been practiced upon her, by which she was induced to part with her record title thereto; that the North Texas Trust Company knew, or could have known, all of the facts concerning the conveyance of said property by plaintiff to defendant Kuehn, if it had exercised proper prudence, care, and diligence in ascertaining such facts; that by reason of the unlawful and wrongful levy and sale of said lands without any consideration moving from the North Texas Trust Company the title acquired by it was subordinate to the equitable title and interest of plaintiff in and to said lands.
"To plaintiff's amended original petition defendant North Texas Trust Company answered by its...
