McLean v. McCollum

• Decision Date: 15 March 1948
• Docket Number: No. 5870.,5870.
• Citation: 209 S.W.2d 959
• Parties: McLEAN et al. v. McCOLLUM.
• Court: Texas Court of Appeals

209 S.W.2d 959

McLEAN et al. v. McCOLLUM.

No. 5870.

Court of Civil Appeals of Texas. Amarillo.

March 15, 1948.

Rehearing Denied April 12, 1948.

Appeal from District Court, Hockley County; Daniel A. Blair, Judge.

Action by W. D. McCollum against Ella S. McLean and Joe McLean for cancellation of a mineral deed. From the judgment, defendants appeal.

Judgment affirmed.

Bradley & Wilson and Vickers & Vickers, all of Lubbock, and Carl E. Ratliff, of Levelland, for appellants.

Allison & Chandler, of Levelland, and F. D. Brown, of Lubbock, for appellee.

PITTS, Chief Justice.

This suit was filed by appellee, W. D. McCollum, against appellants, Ella S. McLean and husband, Joe McLean, for the cancellation of a mineral deed purporting to convey three-fourths of the mineral interest in and under forty-three acres of land situated in Hockley County, Texas.

The case was tried to a jury on special issues resulting in a verdict for appellee upon which a judgment was rendered for appellee and appellants have perfected an appeal to this Court.

The instrument in question was signed by appellee on April 17, 1947, at a time when he was eighty-seven years of age. Appellees pleaded lack of consideration, no legal delivery of the instrument, mental incapacity of appellee, duress and undue influence. Appellants answered joining issues with appellee and further pleading that prior to the execution of the mineral deed in question appellee had entered into a verbal agreement with appellant, Ella S. McLean, to the effect that she would provide a home and care for him for the remainder of his life in return for which he would convey to her the mineral rights in question by the execution of the deed in question.

The jury found a lack of mental capacity on the part of appellee to execute the instrument, failure of delivery of the instrument, that it was executed because of duress and undue influence, and that no prior agreement was made between appellee and appellant, Ella S. McLean, to execute the instrument in question as was claimed by appellants. Upon the verdict of the jury the trial court rendered judgment cancelling the mineral deed in question and removing the cloud from appellee's title.

Appellant's predicate their appeal upon ten points of error complaining in effect in nine of the points that the evidence was insufficient to support the findings of the jury in their last point they charged that improper evidence was heard and considered by the jury.

To test the sufficiency of the evidence to determine if it will support the verdict of the jury, we must give credence only to the evidence and circumstances favorable to the verdict and disregard all evidence and circumstances to the contrary. Cartwright v. Canode, 106 Tex. 502, 507, 171 S.W. 696; Underwood v. Security Life & Annuity Co. of America, 108 Tex. 381, 194 S.W. 585; and Alexander Marketing Co. v. Medford, Tex.Civ.App., 170 S.W.2d 809, and other authorities there cited.

In the observance of another rule we are not authorized to disturb the verdict of the jury if there is evidence of probative force to support the jury findings. On the contrary the rule is well settled that it is our duty to uphold the verdict of the jury unless its findings are manifestly erroneous and they will then be overruled only when they are without any evidence to support them or where they are found to be so against the greater weight and preponderance of the evidence as to be manifestly wrong. Leonard v. Smith, Tex.Civ.App., 186 S.W.2d 284; Custer v. McGough, Tex. Civ.App., 184 S.W.2d 668; Gossett, Banking Commissioner v. Green, Tex.Civ.App., 153 S.W.2d 500; Belstrom v. Belstrom, Tex.Civ.App., 144 S.W.2d 614.

The case was heard in the trial court on September 22, 1947. Dr. John D. Dupree, a physician and surgeon, after qualifying as such testified as a witness that he had known appellee six or seven years, during which time he had attended him professionally several times; that he had seen him professionally twice in April or May, 1947, and had examined him recently; that as a result of his observations and examinations of appellee he would say appellee had a bad memory, was physically weak and was afflicted with senile dementia; that his mental functions had deteriorated to such an extent that he could not take care of himself; that in his opinion appellee had not been mentally or physically able to look after his own business for several years, during which time he was not competent to understand the nature and consequences of his own acts. Appellee testified at length before the jury and was carefully cross-examined by counsel for appellants. The jury had an opportunity to observe his demeanor and hear him examined as a witness. Although the issue was controverted it is our opinion that the evidence and circumstances were amply sufficient to support the first finding of the jury to the effect that appellee did not have mental capacity to execute the deed in question. This finding alone is sufficient to invalidate the deed in question.

However appellants next contend that the evidence does not support the jury's finding to the effect that there was no delivery of the deed in question. In connection with the submission of this issue, the trial court defined the term "Delivery" about which definition there is no complaint and the jury found no delivery of the instrument was made. In support of this issue appellee testified that on the day the instrument was signed by him, appellant, Joe McLean, pushed him into an automobile over his protest and drove him to Levelland, Texas, without telling him why they were going to town other than to tell him he must hign some papers since the will he had previously signed was all wrong; that he told Joe McLean he wanted to talk to his attorney, Al Allison, before signing any papers but Joe would not let him talk to his attorney; that Joe said, "I am your lawyer and your guardian and your administrator and I am going to take care of you and make you some money;" that, after they got to Levelland, appellant, Joe McLean, pulled him out of the car, pulled him into an office, placed the deed in question on a table before him and told him to sign it; that he hesitated and Joe said, "Now sign right there, Mc, she's all right" and showed him where to sign the instrument; that he signed the instrument and left it on the table after which he was dragged out of the office by Joe, placed in the car and driven home; that he had not read the instrument nor heard it read and did not then know what he had signed but thought from what Joe had said he was making a change in his will; that nothing was said to him about the instrument he was signing being a mineral deed to a part of his land; that he never at any time had the instrument in his possession and never gave it to anybody and had not seen it since; and that he never at any time intended to convey to appellant, Ella S. McLean, any part of his mineral rights to his land....