Moore v. Moore

Decision Date31 January 1924
Docket Number(No. 37.)
Citation259 S.W. 322
PartiesMOORE v. MOORE.
CourtTexas Court of Appeals

Appeal from District Court, Coryell County; J. R. McClellan, Judge.

Suit by Almer L. Moore against Mrs. Ola Moore. Judgment for defendant, and plaintiff appeals. Affirmed in part, and reversed and remanded in part.

V. L. Garnett and Smith & Woodruff, all of Comanche, for appellant.

H. C. Stinnett and McClellan & Cross, all of Gatesville, for appellee.


Almer L. Moore, appellant herein, brought this suit against Mrs. Ola Moore, appellee herein, to set aside a certain judgment in her favor against him, in which judgment she recovered title and possession of block 19 in the city of Gatesville. He also sued in trespass to try title to recover an undivided half interest in said tract of land and an undivided half interest in certain money and notes alleged to be the proceeds of the sale of a certain farm. He alleged that all said property belonged to the community estate of appellee and her deceased husband, John A. Moore; that he was the only child of said John A. Moore, and as such inherited his undivided half interest in said property, subject to a life estate therein devised to appellee by said John A. Moore; that appellee had taken possession of all said property and was fraudulently claiming the same as her own in fee simple. He also alleged that said John A. Moore owned at his death other property, the nature and description of which was unknown to him at the time, and that the same was in the possession of appellee, and he sued therefor.

Appellee answered by plea of not guilty and by a special denial that her deceased husband, at the time of his death, owned any interest, community or otherwise, in the property sued for. She alleged affirmatively that such property and all the same at and prior to his death belonged to her in her own right and as her separate estate. While her answer showed that all said property was acquired during the existence of the marriage relation between her and her deceased husband, she pleaded in detail the facts and circumstances on which she based her claim of separate ownership. The pleadings are voluminous, and we do not attempt to here state the contents of the same, further than to disclose the general nature and character of this suit.

There was a trial before a jury, an instructed verdict for appellee, and judgment in her favor, except that a certain violin was adjudged to appellant at her death. Appellant has brought the case to this court for review.

The issues involved in this suit with reference to block 19, occupied by appellee and her deceased husband as a home, with reference to the money and notes constituting the proceeds of the sale of the farm, and with reference to the violin, are essentially different, and we will consider them in the order named.

Appellant is the son of John A. Moore by a former wife. He had not lived with his father since childhood. He had not seen his father since he was 14 years old and had not had a letter from him since 1903. He was about 45 years old at the time of the trial of this case. John A. Moore married appellee in 1892, and they lived together as husband and wife until his death, which occurred December 3, 1919. They had only one child, whose name was Willie Ray Moore. John A. Moore, on the 8th of June, 1913, executed a will in which he declared that the entire interest he owned in the property was a community interest with appellee, and in which he devised all his property to appellee for life, with remainder at her death to his said son, Willie Ray Moore, in fee simple. Willie Ray Moore died on July 26, 1913, some six years before the testator, but it appears that the will remained unchanged. Said will was probated, and appellee qualified as independent executrix thereof September 11, 1922.

The home place was deeded to J. A. Moore by warranty deed dated July 6, 1908, for a recited consideration of $1,000 cash and $2,250 in vendor's lien notes. These notes were released on October 11, 1912, by one Graves, to whom they had been assigned, and J. A. Moore was grantee in such release.

Appellee claimed that said home place was purchased with the proceeds of her separate property, and with funds in which her husband at and prior to such investment therein had relinquished his community interest to her, and that the same was her separate property. Appellee, on or about March, 1921, was negotiating for the sale of said home place, and the prospective purchaser demanded a quitclaim deed from appellant. She succeeded in locating him and had a friend, who was also an attorney, write to him, inclosing a quitclaim deed with the request that he sign and return the same. This he declined to do. Appellee, on the 26th of May, 1921, instituted suit against appellant in the district court of Coryell county at Gatesville in trespass to try title to recover said tract of land. Notice, the regularity of which is not questioned, was immediately issued by the clerk of said court, directed to appellant as a nonresident defendant, and duly served on him in Indianapolis, Ind., on the 31st day of May, 1921. Such notice required him to appear in said court and answer appellee's petition on the 11th day of July, 1921. Appellant made some effort to secure counsel and to have an appearance entered and to have the claims asserted by appellee contested. Such efforts were not successful. The 11th day of July, 1921, the return day in said notice, was the day fixed by law for the opening of a regular term of said court, which term was permitted by law to continue for seven weeks. On the second day of said term, no one having appeared for appellant, the defendant in said cause, the court heard the case, and after such hearing rendered judgment in favor of appellee against appellant, adjudging said tract of land to have been her sole and separate property at the date of the death of her said husband, and ordering, adjudging, and decreeing that she recover the same of appellant, and divesting out of appellant all right, title, and interest thereto, and vesting the same in her. This judgment was duly entered on the minutes of the court. Appellant made no attempt to have it set aside during the term of court at which it was rendered. The record does not disclose the date of the filing of this suit.

Appellant alleged, as ground for setting aside said judgment, that appellee's attorney wrote to him that he had no interest in said property, and that appellee could go into court and have judgment in her favor on the facts for absolute title thereto, that he believed such statement, and so believing did not see any reason for employing an attorney to represent him on the trial of said cause.

The evidence shows that Judge Arnold acted for appellee, first as a neighbor and friend, and afterward as attorney, in the matter of attempting to secure said quitclaim deed, and in filing suit and securing the judgment under consideration.

Judge Arnold's first letter was dated May 12, 1921, and inclosed the quitclaim deed and requested appellant to sign the same. Said letter, so far as material to this issue, is as follows:

"At the time of Mr. Moore's death they owned and lived upon as a homestead block No. 19 in Gatesville, Texas, which was their homestead, and upon which the survivor, Mrs. Ola Moore, still resides as a homestead. Under the laws of Texas, you doubtless know that the survivor of a marriage by a man and wife is entitled to live upon and enjoy the homestead for the rest of her natural life. In this instance, however, I feel free to say to you that it was Mr. J. A. Moore's intention for his wife, Mrs. Ola Moore, to have the whole of this property upon his death and for her to have the use and benefit of it thereafter. In fact, there is no question but what she could go into the court and have judgment rendered in her favor on the facts as they exist for the title to this property absolutely and at all events. Feeling that you would feel about this property as I do, and that this deserving widow woman should not be disturbed nor distressed about her title and possession, I have prepared a quitclaim deed to said property which I inclose to you, and will ask you to kindly sign the same and acknowledge it before some notary public in the county and the city of your residence."

Appellant replied to this letter, declining to sign the deed, and expressing in substance his willingness to let the law decide their respective rights in said property. On May 26, 1921, the same day he filed said suit, Judge Arnold wrote another letter to appellant, which letter is as follows:

"I am in receipt of your recent letter and confirming my advice to you in former letter I am today filing suit for Mrs. Ola Moore to have her homestead set apart to her. This piece of property, block No. 19 in Gatesville, Texas, is all the property that was owned by she and her husband at the date of his death. I am sorry you did not sign quitclaim deed as requested in my former letter. In view of your failure to do so, nothing is left but to have it adjudged to her under the law. Mrs. Moore used to keep boarders and in that way, together with some property that came to her from her father and mother, she paid for this homestead. Again, Mr. Moore gave her her earnings in the hotel and boarding house business and this she put into her home that is her place of residence at this time. Your brother, Willie Ray Moore, died several years ago leaving Mrs. Moore a lone widow, to fight life's battles from this time on without the aid of either a husband or a son. I hope yet that you will conclude to save her the trouble and expense of having the court adjudge this property to her as the result of a trial and that you will execute and return to her or to me the quitclaim deed which I sent you. My interest in this matter is because I am a neighbor to...

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