Kyles v. Texarkana Production Credit Association
| Decision Date | 23 November 1971 |
| Docket Number | No. 8022,8022 |
| Citation | 474 S.W.2d 302 |
| Parties | Shirley Ann KYLES et al., Appellants, v. TEXARKANA PRODUCTION CREDIT ASSOCIATION et al., Appellees. |
| Court | Texas Court of Appeals |
William E. Wiggins, Texarkana, J. R. Cornelius, Cornelius & Cornelius, Jefferson, for appellants.
Norman C. Russell, Atchley, Russell, Hutchinson & Waldrop, Harry Friedman, Harkness, Friedman & Kusin, Texarkana, for appellees.
On August 12, 1954, Plaintiff-Appellee, Texarkana Production Credit Association, a corporation, (hereinafter referred to as Production Credit Association); filed suit against Defendant, now deceased, Richard Kyles. The suit was on a plain promissory note and a chattel mortgage lien. Production Credit Association took a default judgment against Richard Kyles on September 20, 1954, for Eleven Thousand Five Hundred Forty-two and 07/100 ($11,542.07) Dollars with interest thereon at 6% Per annum from date of judgment until paid, plus One Thousand One Hundred Fifty-four and 20/100 ($1,154.20) Dollars as attorney's fee. The Production Credit Association also foreclosed on the chattel mortgage on certain crops, farm machinery and cows.
On January 3, 1955, Production Credit Association filed an abstract of judgment in the County Clerk's office. On January 5, 1955, Production Credit Association caused an execution to issue on the judgment against Richard Kyles and it was returned by the Sheriff with the notation 'nothing found in Bowie County to levy on.' On June 1, 1964, Production Credit Association secured the issuance of another execution against Richard Kyles. It was returned by the Sheriff of Bowie County, Texas, with the notation, 'nulla bona.' 'Nalla Bona' by a translation means there was nothing found in Bowie County, Texas, belonging to Richard Kyles on which the Sheriff could levy the execution.
Another abstract of judgment was filed by Production Credit Association on January 5, 1970, showing Two Thousand Six Hundred Seventy-five and NO/100 ($2,675.00) Dollars credits. This was offered in evidence but it was objected to. The Trial Court sustained the objection. Production Credit Association has brought the abstract of judgment forward by a bill of exceptions.
We will note here that James Kyles passed away on December 21, 1968, before the case was ever tried. The surviving widow of James Kyles, Shirley Kyles, and their five children were made party defendants to the suit. Richard M. Kyles passed away, intestate, on November 3, 1957.
Prior to these occurrences, James R. Kyles and wife, Shirley Kyles, executed a Warranty Deed to Richard M. Kyles in which they conveyed to him a total of 251.6 acres of land. The deed was executed on June 28, 1952.
On June 29, 1955, Richard M. Kyles and wife, Josephine Kyles, executed a deed to James Kyles on the 251.6 acres of land. This was nearly nine months after the date of the judgment of Texarkana Production Credit Association v. Richard Kyles, dated September 20, 1954. The consideration recited in this deed reads as follows:
'for and in consideration of the sum of One and No/100ths.....($1.00) ..... Dollars, to us cash in hand paid by JAMES KYLES, the receipt of which is hereby acknowledged and confessed and for the further consideration, evidenced by the delivery and acceptance of this Deed, that said Grantee, JAMES KYLES, herein assumes, binds, and obligates himself to pay and to discharge the unpaid balance now due and owing on that certain Deed of Trust Note in the original principal sum of SIX THOUSAND FIVE HUNDRED AND NO/100ths ($6,500.00) DOLLARS date day of , 1952, payable to FEDERAL LAND BANK, of Houston, Texas, and/or its assigns, fully described in and secured by Deed of Trust of record in Volume page of the Bowie County, Texas, Deed of Trust Records, reference to which is hereby made for all purposes.'
Bearing in mind that Richard M. Kyles passed away November 3, 1957, Josephine Kyles alleged and swore that she did not appear before a Notary Public and acknowledge the deed.
It will be noted that the Federal Land Bank of Houston, Texas, had the first lien on the property. Josephine Kyles alleged and swore that there was no consideration paid to her, nor to her husband when the deed was executed to James Kyles. The testimony as to the execution of this deed will be discussed in detail later in the opinion.
On February 17, 1964, Production Credit Association filed this suit against James Kyles; Josephine Kyles, individually, her four minor children, and her three adult children, Sidney Kyles, Freida Jo Kyles, and Michael Kyles; and the Federal Land Bank of Houston, Texas, to foreclose on its judgment lien.
A guardian ad litem was appointed to represent the minor children of Shirley Kyles, viz., Craig Kyles, Randy Kyles, Sawn Kyles and Larry Kyles. A guardian ad litem was appointed to represent the minor children of Josephine Kyles.
The case went to trial before a jury on January 5, 1970. There were eleven special issues submitted to the jury. They were all answered in favor of Production Credit Association and Josephine Kyles and her children. The special issues and the jury's answer thereto read as follows:
'SPECIAL ISSUE NO. 1
'Do you find from a preponderance of the evidence that Richard Kyles, deceased, intended to delay, hinder and defraud Texarkana Production Credit Association in the collection of its debt when he conveyed the land described as 139 acres, 62 acres and 50.6 acres in the W. B. Hawkins Survey, Bowie County, Texas, to James Kyles, deceased?
Answer 'Yes' or 'No'
If you have answered the foregoing Special Issue 'Yes' then answer the following. If you have answered the foregoing Special Issue 'No,' then you will not answer Special Issue No. 2.
'SPECIAL ISSUE NO. 2
'Do you find from a preponderance of the evidence that James Kyles, deceased, knew that Richard Kyles, deceased, conveyed the land described as 139 acres, 62 acres, 50.6 acres in the W. B. Hawkins Survey, Bowie County, Texas, to him with the intent to delay, hinder and defraud Texarkana Production Credit Association?
Answer 'Yes' or 'No'
Answer: Yes
'SPECIAL ISSUE NO. 3
'Do you find from a preponderance of the evidence that both James Kyles, deceased, and Richard Kyles, deceased, did not intend that the deed dated June 29, 1955 should be effective as conveying the properties described as 139 acres, 62 acres, 50.6 acres in the W. B. Hawkins Survey, Bowie County, Texas?
Answer 'They did so intend' or 'They did not so intend.'
Answer: They did not so intend.
'SPECIAL ISSUE NO. 4
'Do you find from a preponderance of the evidence that James Kyles, deceased, did not pay Richard Kyles, deceased, a substantial and valuable consideration for the conveyance of the land described as 139 acres, 62 acres and 50.6 acres in the W. B. Hawkins Survey, Bowie County, Texas on June 29, 1955?
Answer 'He did pay a substantial and valuable consideration' or 'He did not pay a substantial and valuable consideration.'
Answer: He did not pay a substantial and valuable consideration.
'SPECIAL ISSUE NO. 5
'Do you find from a preponderance of the evidence that Richard Kyles, deceased, was not possessed of property within the State of Texas subject to execution sufficient to pay his existing debts immediately after conveying the land described as 139 acres, 62 acres and 50.6 acres in the W. B. Hawkins Survey, Bowie County, Texas to James Kyles, deceased, on June 29, 1955?
Answer 'He was so possessed' or 'He was not so possessed.'
Answer: He was not so possessed.
'SPECIAL ISSUE NO. 6
'Do you find from a preponderance of the evidence that the officer allegedly taking the acknowledgment of Josephine Kyles did not explain the nature of the instrument to her.
Answer 'She did explain it to her' or 'She did not explain it to her.'
Answer: She did not explain it to her.
'SPECIAL ISSUE NO. 7
'Do you find from a preponderance of the evidence that the officer allegedly taking the acknowledgment of Josephine Kyles examined Josephine Kyles apart from her husband?
Answer 'She did examine her apart from her husband' or 'She did not examine her apart from her husband.'
Answer: She did not examine her apart from her husband.
'SPECIAL ISSUE NO. 8
'Do you find from a preponderance of the evidence that the officer allegedly taking the acknowledgment did not inquire of Josephine Kyles whether she willingly signed the instrument and that she did not wish to retract it?
Answer 'The officer did inquire' or 'The officer did not inquire.'
Answer: The officer did not inquire.
'SPECIAL ISSUE NO. 8--A
'Do you find from a preponderance of the evidence that any of the land in controversy constituted a portion of the homestead of Josephine and Richard Kyles?
Answer 'Yes' or 'No'
'You are instructed that it is not necessary that the homestead be all in one tract, but it may be composed of several different parcels detached from each other.
'SPECIAL ISSUE NO. 9
'Do you find from a preponderance of the evidence that the deed from Richard Kyles and wife, Josephine, to the Defendant, James Kyles, dated June 29, 1955, was executed for the purpose of the cancellation of the $15,000.00 Deed of Trust Note held by the said James Kyles in addition to the assumption by him of the $6,500.00 note due and owing to the Federal Land Bank of Houston?
Answer 'Yes' or 'No'
Answer: No
'SPECIAL ISSUE NO. 10
'Do you find from a preponderance of the evidence that the Defendants, Shirley Ann Kyles, surviving wife of James Kyles, Diane Lee Cooper, Larry Rollin Kyles, James Craig Kyles, Randall R. Kyles, and Shann I. Kyles, children of the said James R. Kyles, and those whose title they hold, either in person or through a tenant or tenants have had exclusive possession of the land in controversy, continuously cultivating, using, or enjoying the same and claiming the same under a deed or deeds duly registered for any consecutive period of four years subsequent to June 29,...
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