Lindly v. Lindly

• Decision Date: 21 March 1908
• Citation: 109 S.W. 467
• Parties: LINDLY v. LINDLY et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

109 S.W. 467

LINDLY v. LINDLY et al.^*

Court of Civil Appeals of Texas.

March 21, 1908.

Rehearing Denied April 11, 1908.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

Action by J. M. Lindly against Harlin Lindly and others. From the judgment, plaintiff appeals. Affirmed.

Thompson & Manning and Jones & Connor, for appellant. T. D. Starnes, Mulkey & Hamilton, and Looney & Clark, for appellees.

TALBOT, J.

Appellant instituted this suit in the district court of Hunt county, Tex., on the 25th day of April, 1906, against the appellees for partition of 600 acres of land situated in Hunt and Delta counties, alleging in his petition that he was the owner in fee simple of an undivided one-half interest, and that appellees were the owners of the other undivided one-half interest in said lands. On the 22d day of May, 1906, all of the defendants, except Sallie Lindly, filed their original answer, consisting of general demurrer and general denial. On the 4th day of February, 1907, the defendant, Sallie Lindly, filed for herself an answer, stating, in substance, that the land described in plaintiff's petition was the community property of herself and her deceased husband, Jahu Lindly; that her said husband died March 19, 1906, and on the 6th day of April of the same year she deeded to the plaintiff her entire interest in said land, with the understanding that she should have the rent thereof for the year 1906, and that she did not claim any title to or interest in her said husband's interest in said land. She further alleged that no demand had been made upon her for possession of the land, or a partition of the same, and that she desired to account to her codefendants for the rent of their undivided one-half interest in all of said lands, pay the same to them, and deliver possession of their interest in said lands to them. On the 12th day of February Asa Jernigan, acting as the next friend of Sallie Lindly, filed an answer in her behalf, alleging that she was a person feeble and of unsound mind; that she was 88 years old, illiterate, and so weak and infirm in mind and body that she was unable to comprehend her property rights or to manage her affairs; that for many years the plaintiff had been the confidential manager and agent of the said Sallie Lindly, enjoying her implicit confidence; that immediately after the death of her said husband the plaintiff, although having received more from the estate than any other heir, and more than his entire share, at once began to devise a scheme whereby he could get possession of and title to one-half of all of the property of the said Sallie Lindly and Jahu Lindly, deceased, consisting of about 600 acres of land; that so completely was the said Sallie Lindly under the influence and control of plaintiff that she was willing to sign any sort of an instrument or conveyance he might require her to sign, and that, because of her great age, her weak mind, and the undue influence exercised over her by the plaintiff, she executed the deeds under which plaintiff claims title to the lands involved in this suit; that plaintiff procured said deeds to be executed for the purpose of defrauding the said Sallie Lindly out of the land conveyed, and that, if said deeds are allowed to stand, she will be left without any property, and on the mercy of her friends and relatives. The said Jernigan, as her next friend, further pleaded that the said Sallie Lindly was entitled to a life estate in all of the lands described in plaintiff's petition, and that the answer filed by her on February 4, 1907, was signed by her at the instance of and through the influence of plaintiff. The prayer of this pleading was that the deed by Sallie Lindly to plaintiff be canceled, and that a receiver be appointed to take charge of her property and manage the same for her. On the 6th day of May, 1907, the defendants other than Sallie Lindly filed an amended answer, wherein they pleaded a general denial, and, in substance, that the lands in controversy on the 28th day of January, 1899, were the community property of Jahu Lindly, deceased, and Sallie Lindly, and on that date, for love and affection, the said Jahu Lindly conveyed all of said land to the said Sallie Lindly for life, with remainder to those of their children to whom they had not given any land; that the defendants were such children, and that they and the said Sallie Lindly received and accepted said deed, and that the said Sallie Lindly claimed the land thereunder, using and enjoying the same until some time after the death of Jahu Lindly, which occurred March 19, 1906. These defendants further alleged that plaintiff was one of the children of the said Jahu and Sallie Lindly, and that they, before the deed of January 27, 1899, was executed, had deeded to him as a gift tracts of land in Hunt county; that plaintiff had no title to the property in controversy, and should be excluded from participation in the ownership thereof. On the same date appellant and his mother, Sallie Lindly, by her attorney, J. S. Sherrill, filed motions to strike out the answer of Asa Jernigan, filed as next friend of Sallie Lindly. These motions were overruled, and Sallie Lindly by her attorney filed her first supplemental answer in reply to the Asa Jernigan answer, specially denying that he had any authority to act for her, that the answer was filed without her knowledge or consent, and further specially denying the allegations therein, to the effect that she was mentally incapable of understanding the nature and effect of the deed she made to her son, and that he procured the same through undue influence, alleging in her answer that she made the deed of her own free will and accord, and that it was then, and is yet, her desire for him to have her part of the community estate. On the same date appellant filed his first supplemental petition, demurring to defendant's first amended answer, and specially replying, set up in substance, that the deed from Jahu to Sallie Lindly did not convey her community interest in the land and, that, if it did or could have that effect, she did not so understand it, if in fact it was ever accepted by her; that at the time the deed was made she and her husband, Jahu Lindly, were both upwards of 80 years old; that her interest in the community estate so attempted to be conveyed was of the reasonable value of $15,000, and that she did not give up or intend to give up the same for the privilege of using her husband's one-half of the land for the remainder of her life; that, after the deed was made, said Jahu and Sallie Lindly lived together as husband and wife until the date of his death, March 19, 1906, and occupied, used, and enjoyed the property together, and that on the 6th day of April, 1906, she conveyed to appellant her interest therein. Appellant also filed a reply to Asa Jernigan's pleadings in behalf of Sallie Lindly, consisting of a general demurrer and a general denial. The court overruled appellant's general demurrer to defendants' special answer above referred to. The case was tried before a jury, and at the close of the evidence appellant presented to the court a motion for peremptory instructions, which was overruled, and the case was submitted to the jury on special issues. Upon the jury's findings the court entered judgment to the effect that the conveyance from Jahu Lindly to Sallie Lindly et al., dated January 27, 1899, conveyed her community interest in the land; that appellant was her agent, and adviser with respect to her property, was in a position to exercise undue influence upon her, and did in fact exercise such influence to procure the deeds from her to him; that her mind was so impaired by age, etc.; that she did not comprehend her property rights sufficiently well to make a valid deed, and adjudged that plaintiff take nothing by this suit. It was further adjudged necessary, and the court appointed a receiver to take charge of all the lands and manage them for Sallie Lindly's benefit. From this judgment, appellant has appealed.

Appellant's first assignment of error complains of the court's action in overruling his motion to strike out the answer filed by Asa Jernigan as the next friend of Sallie Lindly. The contention is that, said Jernigan and Sallie Lindly being codefendants and before the court, the act of the said Jernigan in filing said answer for her as next friend was unauthorized by law; that, when it was alleged that the said Sallie Lindly was of unsound mind, it became the duty of the court to ascertain whether or not that condition of mind existed, and, if so, to appoint a guardian ad litem to represent her. This probably would have been the more regular course to pursue under our statutes; but we think the court's action did not constitute reversible error. Asa Jernigan was the son-in-law of Sallie Lindly, and, while he and his wife were parties to the suit, neither of them had any interest in the controversy that was antagonistic to the interest of Sallie Lindly. The answer filed by Jernigan was a cross-action, in which Sallie Lindly, through him as her next friend, became the plaintiff and the appellant the defendant, and it is clear under the decisions of this state that Jernigan, in the capacity in which he sued, could have maintained, under the facts alleged, an original suit for the relief sought in the cross-action. There seems to be no substantial difference, under our practice, between a next friend and guardian ad litem. Besides, Asa Jernigan was permitted by the court to act in Sallie Lindly's behalf, and recognized throughout as a suitable representative for her in the case. This was tantamount to an appointment of him for that purpose by the court, and the fact that the answer or cross-bill was filed upon his own initiative and prosecuted as next friend instead of as guardian ad litem is we think immaterial. Railway v. Styron, 66 Tex. 421, 1 S. W. 161. It was a matter of...