Morris v. Ratliff

• Decision Date: 16 March 1956
• Docket Number: No. 15039,15039
• Citation: 291 S.W.2d 418
• Parties: Mary MORRIS, Appellant, v. Beulah Holden RATLIFF, Individually and as Administratrix, et al., Appellees.
• Court: Texas Court of Appeals

Page 418

291 S.W.2d 418

Mary MORRIS, Appellant, v. Beulah Holden RATLIFF, Individually and as Administratrix et al., Appellees.

No. 15039.

Court of Civil Appeals of Texas, Dallas.

March 16, 1956.

Rehearing Denied April 27, 1956.

Further Rehearing Denied May 25, 1956.

Wm. Andress, Jr., Dallas, for appellant.

Virgil R. Sanders, Frank Cusack and W. R. Herring, Dallas, for appellees.

DIXON, Chief Justice.

Our opinion heretofore rendered in this case is withdrawn and the following opinion is substituted therefor:

This suit was brought by appellees Mrs. Beulah Holden Ratliff, individually and as administratrix with will annexed of the estate of Lillian Holden, deceased, and her husband, W. W. Ratliff, as plaintiffs, against appellant Mary Morris and First Baptist Church of Dallas, as defendants, to cancel two deeds and to quiet title to certain real estate consisting of a house and lot in Dallas, Texas. Neither appellant Mary Morris nor appellees are kin of the decedent Lillian Holden.

Appellees alleged that on April 6, 1951 Lillian Holden, a person advanced in years, executed a deed to the property in question to the appellant Mary Morris for a consideration of $5 cash, and the agreement by Mary Morris to procure an attendant to stay with her, Lillian Holden, as long as she was ill, and thereafter to pay for her funeral expenses, and to erect a marker upon her grave.

Appellees further alleged that First Baptist Church in Dallas was claiming some right, title or interest in the property by virtue of an instrument purporting to be a deed dated about April 17, 1951.

Lillian Holden died May 8, 1951. Appellees alleged that she left a will designating appellee Mrs. Beulah Holden Ratliff as devisee of the real estate which is the subject matter of the suit.

Appellees sought cancellation of the two deeds above mentioned on the ground that at the time the instruments were executed Lillian Holden, grantor, did not possess sufficient mental capacity to understand the nature and effect of her acts in executing the deeds. They prayed not only for cancellation of the deeds but that title be quieted in Beulah Holden Ratliff; and that Beulah Holden Ratliff have judgment for rents collected by Mary Morris who has been in possession of the property since the death of Lillian Holden.

The First Baptist Church of Dallas filed a disclaimer. It did not further appear in the trial, and is not a party to this appeal.

Appellant Mary Morris filed a plea of not guilty, a general denial, recited her deed of April 6, 1951, and pled that in conformity to her agreement she procured and paid for the services of an attendant for Lillian Holden, paid for her funeral expenses and a marker on her grave, and various of her other expenses, regularly paid taxes and mortgage installments, and in addition had made repairs on the property. She prayed that appellees take nothing and in the alternative that she be reimbursed for her expenditures.

Trial was to a jury. After appellees had put on their evidence and rested, appellant filed a motion for instructed verdict on the ground that appellees had failed to make out a prima facie case in trespass to try title. The motion was overruled. Appellant then declined to offer any evidence. The jury thereafter returned a verdict finding that at the time Lillian Holden executed the deed to Mary Morris she did not have sufficient mental capacity to know and understand the subject matter of such deed and the consequences of her act in signing it. The rental value of the property was found to be $70 per month. Judgment was rendered cancelling and setting aside the two deeds, awarding title and possession of the property to Beulah Holden Ratliff, as administratrix, and granting her as administratrix judgment against Mary Morris in the amount of $1,446.50, being the rental value of the property from May 11, 1951 to December 7, 1954, less expenses paid by Mary Morris.

Appellant's first and second points assert error in awarding title to appellee as administratrix because there are no pleadings to support such award, and because title vested upon the death of testatrix in her devisee, not in her executrix.

In our opinion the two points are not well taken. Plaintiff's petition expressly states that Mrs. Beulah Holden Ratliff comes into court individually and as administratrix and that she sues in such dual capacity. Our statutes provide that suits for title and possession of lands, or for any right attached thereto may be instituted by executor, and that every executor shall use diligence to collect claims and recover possession of property. Arts. 1981 and 3429, V.A.C.S. It is true, as appellant says, that when a person dies leaving a lawful will, all of his estate vests immediately in the devisees or legatees. Art. 3314, V.A.C.S. But the devisees take subject to the lawful administration of the estate and an executrix in her representative capacity, as part of her full administration of the estate, must secure and collect the assets for the estate in order to comply with the terms of the will and distribute the assets to the parties, including creditors, entitled to receive them. Harrison v. Craddock, Tex.Civ.App., 178 S.W.2d 296; 14 Tex.Jur. pp. 334-337. Moreover appellant did nor challenge the capacity or authority of appellee to sue by filing a verified pleading as provided by Rule 93(c) and (e), Texas Rules Civil Procedure. Boothe v. Blanchette, Tex.Civ.App., 208 S.W.2d 105; Cheatham v. Riddle, 12 Tex. 112. Appellant's first and second points are overruled.

Appellant says that this is a suit in trespass to try title and that appellees are not entitled to recover because they did not establish a chain of title from the sovereign of the soil, or from a common source.

As we view it, this is not a statutory action in trespass to try title. It is first and foremost a suit to cancel two deeds though it does incidentally involve title. It is the settled law of this State that a deed executed by a person of unsound mind is voidable, not void. Until it is set aside it conveys the entire title to the land in question. A peson claiming adversely to such deed cannot recover title until the deed is set aside. Therefore an action in trespass to try title will not lie to recover the land. The proper action is one to cancel the deed, and that being done, the court may then do justice by entering judgment vesting title as a consequence of the relief primarily granted. Neill v. Pure Oil Co., Tex.Civ.App., 101 S.W.2d 402 (writ ref.); Harrison v. Craddock, Tex.Civ.App., 178 S.W.2d 296. Appellant's third and fourth points are overruled.

In her fifth point appellant says that the probate court had no jurisdiction to appoint appellee as administratrix because the claim to cancel appellant's deed is the only property right of decedent known to exist, consequently there was no estate to be administered.

We see no merit in this contention. Appellee administratrix testified that she did not file an inventory, and that she did not know the extent of the estate. However the record before us includes her original application for appointment as administratrix, in which application she alleges that decedent died seized and possessed of real and personal property of a probable value of $8,000, including the real property involved herein, and that there was a necessity for administration in that there existed two or more debts against the estate. The probate court's order appointing her recites that due proof was taken in the manner required by law and that there was a necessity for administration upon the estate. We find no other evidence in the record touching on the extent of decedent's estate.

Under such circumstances the validity of appellee's appointment is not subject to collateral attack. Unless it affirmatively appears that the court did not have jurisdiction, appellee's appointment cannot be questioned in this suit. Though there may be omissions in the record, that fact will not support an inference in a collateral attack that the court lacked jurisdiction to appoint an administratrix. Mills v. Herndon, 77 Tex. 89, 13 S.W. 854; Old Volume 13, Tex.Jur. 686, sec. 105, 'Decedents' Estates.' Appellant's fifth point is overruled.

Appellees offered in evidence a purported deed from decedent to the First Baptist Church of Dallas dated April 17, 1951. Appellant's deed from decedent was dated April 6, 1951. Appellees in their brief say, 'The fact of the execution of the deed dated April 17, 1951 to the First Baptist Church was not for the purpose of establishing a chain in the title, but solely on the issue of mental capacity of Lillian Holden.' The assumption that decedent had executed two deeds to the same property to different persons only eleven days apart was referred to by one medical witness as a fact which supported his conclusion that decedent was suffering from senile dementia. It was also used by appellees' attorney in propounding questions to another witness. Further, appellant says in her brief, and it is not contradicted, that it was the basis of emphatic argument to the jury by appellees' counsel.

Appellant objected to the introduction of this deed on the ground that as to appellant it was hearsay and further that it had not been properly proven. The court overruled the objections and the instrument was introduced into evidence.

In our opinion it was error under the circumstances to admit the deed in evidence. We need not concern ourselves with the legal effect of a compliance with Art. 3726, V.A.C.S., for it is undisputed that neither the original deed nor a copy of it was filed among the papers in the suit three days prior to the date of the trial. Wiggins v. Fleishel, 50 Tex. 57. Rule 93(h), T.R.C.P. is not applicable for two reasons: (1) This is a fact situation in which a third party, not appellant herself, is charged with having executed the instrument; and (2) so far as appellant is concerned the...