Long v. McCoy

• Decision Date: 17 March 1927
• Docket Number: (No. 451.)
• Citation: 294 S.W. 633
• Parties: LONG v. McCOY et al.
• Court: Texas Court of Appeals

294 S.W. 633

LONG v. McCOY et al.

(No. 451.)

Court of Civil Appeals of Texas. Waco.

March 17, 1927.

Rehearing Denied May 12, 1927.

Appeal from District Court, Bosque County; Irwin T. Ward, Judge.

Suit by W. B. Long against Mrs. Eva L. McCoy and husband. From the judgment rendered, plaintiff appeals, defendants filing cross-assignments. Affirmed in part, and reversed and remanded in part.

W. V. Dunnam and J. A. Kibler, both of Waco, for appellant.

H. J. Cureton and Jas. M. Robertson, both of Meridian, for appellees.

GALLAGHER, C. J.

This suit was instituted on September 9, 1925, by W. B. Long, appellant herein, against Mrs. Eva L. McCoy and her husband, C. B. McCoy, appellees herein, to recover an undivided one-half interest in and to certain lands and a certain promissory note, and for partition. Appellant's petition contains four counts. In the first count he sues in trespass to try title to recover one tract of land containing 182 acres, another tract containing 702 acres, and a third tract consisting of three certain lots in the town of Clifton, together with the improvements thereon. In the second count of said petition he describes said three several tracts of land and also a promissory note in the sum of $8,000, alleges that he and appellee Mrs. McCoy each own an undivided one-half interest in said lands and note, and prays for a partition thereof. In the third count of said petition appellant alleges that he and appellee Mrs. McCoy are children and the only heirs of Mrs. S. M. Long; that she died on or about the 10th day of November, 1923; that appellees resided with Mrs. Long at the time of her death; that Mrs. Long, on the 23d day of June, 1919, executed and delivered to appellee Mrs. McCoy a general warranty deed conveying said lots in the town of Clifton to her; that on April 16, 1923, Mrs. Long executed and delivered to said Mrs. McCoy a transfer and assignment to her of an $8,000 vendor's lien note, executed by appellees to said Mrs. Long and secured by a lien on said 702-acre tract; that, on and long prior to the dates of the execution and delivery of said respective conveyances, said Mrs. Long was weak and feeble, physically and mentally, was totally blind and bedridden and mentally incapable of entering into a valid or binding contract of any character. He further alleges therein that appellee Mrs. McCoy was a woman of strong and robust health and mentality, domineering in disposition and sharp and grasping in business transactions, and that she took advantage of the weakened physical and mental condition of Mrs. Long and by improper and undue influence induced and coerced the said Mrs. Long to execute and deliver to her said deed to said property in the town of Clifton and said transfer and assignment of said vendor's lien note; that by reason thereof each of said conveyances was invalid. He prays that said conveyances and each of them be set aside and for a partition of said property between him and appellee Mrs. McCoy. In the fourth count of said petition appellant alleges that on January 17, 1910, Mrs. Long executed and delivered to appellee Mrs. McCoy a deed conveying to her said 182-acre tract, and another deed conveying to her said 702-acre tract, and also repeats his allegations with reference to the execution and delivery of said deed to the lots in the town of Clifton and the transfer and assignment of said vendor's lien note, as set out in the third count of his petition. He further alleges that all said property belonged to the community estate of said Mrs. Long and her deceased husband, W. B. Long, who died in May, 1875; that he, his said mother, Mrs. Long, and his said sister, Mrs. McCoy, held all said property as tenants in common during the lifetime of his said mother, and that after her death he and his said sister held the same as tenants in common; that said several conveyances above enumerated were each and all made by Mrs. Long to said Mrs. McCoy and accepted by her in trust for the joint and equal use and benefit of herself and appellant, and that she so held the same. He further prays for partition. Appellees' answer contains a general denial, pleas of not guilty and the 2, 3, 5, and 10 years' statutes of limitation, respectively. Appellant by supplemental petition on the issue of limitation pleads his joint tenancy with appellees of said property, and alleges that the recitals in the deed from Mrs. Long to Mrs. McCoy conveying said 182-acre tract, and under which she claims the same, admit such joint tenancy.

W. B. Long, Sr., owned and resided upon 884 acres of land at the time of his death. Appellant and Mrs. McCoy are the only surviving children of his marriage to Mrs. S. M. Long. On January 17, 1910, Mrs. Long conveyed to Mrs. McCoy 182 acres of said tract of land, describing the same by metes and bounds, and reciting that the consideration therefor was, in part, her equity from her father in said land. On the same day she conveyed to Mrs. McCoy and her husband, C. B. McCoy, the remaining 702 acres of said tract, describing the same by metes and bounds. The consideration recited in said deed is $2,000 cash and two vendor's lien notes, payable to the grantor and signed by the grantees in said deed, one for $2,000 due six months after date, and one for $9,000 due ten years after date, and also the assumption by the grantees of a mortgage note for the sum of $4,000, secured by deed of trust on said entire 884 acres of land. Both said deeds were promptly recorded. Mrs. Long shortly thereafter assigned the $2,000 vendor's lien note, together with the lien securing same, to G. M. Foreman. On the 28th of February, 1910, appellees executed and delivered to said G. M. Foreman their note for the sum of $6,000 and secured the same by a deed of trust on said 702-acre tract. This deed of trust recited that the debt secured thereby was in renewal and extension of the $2,000 note, given by appellees when said land was deeded to them, and the $4,000 note, payment of which they assumed at that time. On October 27, 1915, appellees gave a new deed of trust on said 702-acre tract to another mortgage company to secure a note in the sum of $8,000, reciting that the same was an extension of the original $6,000, and embraced in addition thereto $2,000 paid or to be paid on Mrs. Long's $9,000 note. On the 17th of January, 1920, Mrs. Long executed an instrument acknowledging the payment of her $9,000 vendor's lien note in full and releasing the lien securing the same. On November 16, 1920, appellees gave another deed of trust on said 702-acre tract to the Dallas Trust & Savings Bank to secure the sum of $10,000, due January 1, 1931. This deed of trust recites that it is in lieu and in extension of the $8,000 note described in the preceding deed of trust. According to the testimony, only $1,000 was ever paid on said $9,000 vendor's lien note. It had, however, been renewed for the principal sum of $8,000. On the 16th day of April, 1923, Mrs. Long assigned said note to Mrs. McCoy in consideration of $1 and love and affection. On June 23, 1919, Mrs. Long conveyed to Mrs. McCoy said lots with the improvements thereon situated in the town of Clifton. The consideration recited in said deed is $1, love and affection and the reservation of two rooms during the life of the grantor, and the stipulation that said premises should not be sold nor conveyed during the lifetime of the grantor. The testimony with reference to the value of said 702-acre tract at the time same was conveyed to appellees is conflicting. One of the witnesses placed the value of the same at approximately $50,000. Appellees both testified that they went immediately into possession of both said tracts of farming land at the time they received the deeds thereto, and shortly thereafter made valuable improvements thereon, amounting in the aggregate to between eight and ten thousand dollars. They further testified that all said land was fenced when they received the deeds thereto, and that they had held continuous possession thereof, cultivating, using, and enjoying the same from that time. They further testified that they had paid all taxes thereon annually as they accrued. Mrs. Long resided with appellees, spending her time partly on the farm and partly on the property in Clifton. Appellant was absent from the county continuously from 1909 until 1922, when he paid a short visit to his mother in Clifton. During the greater part of this time he resided in western Texas and in New Mexico. He testified that he learned for the first time during said visit that Mrs. Long had deeded said tracts of farming land to Mrs. McCoy. Other facts will be stated in connection with the issues of law discussed in the opinion.

The case was submitted on special issues. The jury's findings are, in substance, as follows: That Mrs. Long conveyed the lots with the improvements thereon situated in Clifton to Mrs. McCoy, and that she accepted the deed to the same for the joint use and benefit of herself and appellant; that Mrs. Long, at the time she executed and delivered the deed to appellees conveying the 702-acre tract aforesaid, at the time she transferred the $8,000 vendor's lien note to Mrs. McCoy, and at the time she executed the deed conveying to Mrs. McCoy the lots in the town of Clifton, was in such mental condition she did not have the ability to understand the nature and effect of her acts and to exercise her will in relation thereto. The jury also found in response to special issues submitted at the request of appellant that at and prior to the time Mrs. Long executed deeds conveying to Mrs. McCoy the 182-acre tract and to appellees jointly the 702-acre tract, at and prior to the time she executed deed conveying to Mrs. McCoy the lots with the improvements thereon situated in Clifton, and at and prior to the time she assigned the $8,000 note to Mrs. McCoy, she, Mrs. McCoy, had and exercised such improper influence over said Mrs. Long...