Mounger v. Daugherty
| Decision Date | 20 May 1911 |
| Parties | MOUNGER v. DAUGHERTY et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Lubbock County; L. S. Kinder, Judge.
Suit by Viola Daugherty and her husband against F. E. Wheelock and others, in which G. W. Mounger, as administrator of R. M. Whittle, deceased, was joined as a party defendant. Judgment for plaintiff against all the defendants, and G. W. Mounger, administrator, appeals. Judgment reversed and remanded as to appellant, and affirmed as to the other defendants.
H. C. Ferguson, for appellant. Dillard & Moore, for appellees.
Viola Daugherty, joined by her husband, instituted this suit against F. E. Wheelock, J. D. Wood, and the unknown heirs of Don Whittle and R. M. Whittle, to correct certain deeds to several lots situated in the town of Lubbock. The deed first mentioned was executed by Wheelock in favor of Rufe and Don Whittle; the second deed was executed by Don Whittle in favor of defendant J. D. Wood; the third was executed by J. D. Wood in favor of R. M. Whittle; and the fourth was executed by R. M. Whittle in favor of plaintiff Mrs. Viola Daugherty. A portion of the property embraced in the three deeds last mentioned consisted of lots 16, 17, 18, and 19, in block 189. Plaintiffs allege in their petition that this was a misdescription, and that a correct description of the lots referred to and intended by the parties to be included in those deeds were lots bearing the same numbers, but situated in block 198 instead of block 189, and that the mistakes were made in drafting the deeds and were mutual mistakes of the parties thereto. G. W. Mounger, as administrator of the estate of R. M. Whittle, joined with the defendants, sued in an answer to plaintiffs' petition disclaiming the title to all property described in plaintiffs' petition except lots 16, 17, 18, and 19, in block 198, and as to said lots they demurred to plaintiffs' petition by special exceptions, in one of which they urged the statutes of limitations of four and ten years. They also filed a general denial and plea of not guilty. The administrator also filed a cross-action against the plaintiffs in the form of trespass to try title, in which he sought to recover the lots last mentioned and the reasonable rental thereof for something like one year prior to the date of the judgment, which he alleged to be $50 per annum. Judgment was rendered in favor of plaintiffs against the the parties sued as defendants and also against the administrator correcting the deeds as prayed for in plaintiffs' petition, and also decreeing that plaintiffs be quieted in their title to said property, and from that judgment the administrator has appealed.
There was no error in overruling appellant's special exception to the plaintiffs' petition based upon the contention that it did not contain an allegation that the lots had been purchased by the respective vendees, as such an allegation is clearly implied from other allegations in the petition.
Nor was there error in overruling appellant's special exceptions to the petition because it contained copies of all the deeds of conveyance sought to be corrected.
The appellant objected to the action of the court in permitting plaintiff B. F. Daugherty to testify to the conversations and statements made by Don Whittle to the witness relative to the sale shown in the deed from R. M. Whittle to plaintiff Viola Daugherty; the ground of the objection being that as R. M. Whittle was dead, and the witness one of the plaintiffs and a party to the transaction, the testimony was not admissible under Sayles' Civil Statutes, art. 2302. This objection was overruled, and appellant has assigned error to that ruling. It appears from other testimony that Don Whittle acted for R. M. Whittle in negotiating the trade resulting in the deed from R. M. Whittle to the plaintiff Viola Daugherty, and as the testimony to which objection was made related to a transaction between the witness and the agent of R. M. Whittle, and not with R. M. Whittle himself, we think that it was not within the inhibition of the statute referred to above. It further appeared in the testimony that Don Whittle was also dead at the time this suit was tried, and, while the testimony was admissible as against the heirs of R. M. Whittle and his administrator, we do not think it would be admissible against the heirs of Don Whittle. Gilder v. Brenham, 67 Tex. 345, 3 S. W. 309; Saunders' Ex'rs v. Weekes, 55 S. W. 33; Wilmurth v. Tompkins, 22 Tex. Civ. App. 87, 53 S. W. 835.
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