Lindsley v. Sparks

• Decision Date: 17 December 1898
• Citation: 48 S.W. 204
• Parties: LINDSLEY et al. v. SPARKS et al.
• Court: Texas Court of Appeals

48 S.W. 204

LINDSLEY et al. v. SPARKS et al.

Court of Civil Appeals of Texas.

December 17, 1898.

Appeal from district court, Dallas county; W. J. J. Smith, Judge.

Action by Fannie Sparks and another against Philip Lindsley and others. There was a judgment for plaintiffs, and defendants appeal. Affirmed.

Henry & Crawford, for appellants. J. R. Cole, Jr., and Cockrell & Muse, for appellees.

STEPHENS, J.

Involved in this controversy is a house and lot in the city of Dallas, mortgaged by James M. Sparks, August 13, 1892, to secure the payment of a note for $600 in favor of James R. Mitchell. In December, 1894, James M. Sparks and his wife, Fannie Sparks, brought suit in the district court of Dallas county to set aside the mortgage, upon the ground that the house and lot was their homestead at the date of the mortgage, and hence not subject thereto. On April 24, 1895, an agreed judgment was entered in that case denying them the relief sought. This suit was brought by Fannie Sparks, joined by her husband, after the adjournment of the court at which the agreed judgment was entered, to set that judgment aside, upon the ground that her name had been forged to the written agreement in pursuance of which it was entered, alleging that it had been so entered without her knowledge or consent, and that she did not learn of the judgment until after the adjournment of the court. Upon a trial of the issues thus made she prevailed. Hence this appeal.

It is first insisted in appellants' brief that her petition was subject to a general demurrer, and especially in that it failed to show a sufficient excuse for not taking steps to set aside the judgment during the term at which it was rendered; but we do not so construe the petition and the law. We think she could not reasonably be expected to have anticipated that an agreed judgment would be entered upon a forged agreement depriving her of whatever rights she had in the premises, and hence that she was not required to do more than allege, as she did, that the fraud thus practiced upon her was not discovered until after it was too late to bring it to the attention of the court during the term at which the judgment was rendered. The fact that her husband alone was guilty of the forgery, thereby deceiving her attorneys, and the further fact that the defendants in the suit were ignorant of the forgery, would make no difference. The judgment was entered under a mistake of fact, and operated such a fraud upon her as that the parties in whose favor it was rendered could not avail themselves of it and remain guiltless, however ignorant they may have been in the first instance. We are therefore clearly of opinion that the petition stated good ground for equitable relief, and that it was not subject to demurrer.

We find no merit in the assignments complaining of the admission and exclusion of testimony.

The judgment rests upon a special verdict finding (1) that Fannie Sparks did not sign the agreement for judgment herself; (2) that her name was not signed thereto by any one having authority so to do; (3) that she did not afterwards ratify the agreement; (4) that she did not know of the agreement, and of the nature and effect thereof, or that a judgment had been rendered, at any time prior to the adjournment of the court for the term at which the judgment was rendered; (5) tha...