Oaks v. West

• Citation: 64 S.W. 1033
• Parties: OAKS et al. v. WEST et al.
• Decision Date: 13 November 1901
• Court: Court of Appeals of Texas

64 S.W. 1033

OAKS et al. v. WEST et al.

Court of Civil Appeals of Texas.

November 13, 1901.

Appeal from district court, McLennan county; John G. Winter, Special Judge.

Action by Mrs. Sumner F. Oaks and others against John C. West, administrator of the estate of Peter McClelland, and others. From a judgment for defendants, plaintiffs appeal. Reversed.

Eugene Williams, for appellants. Wm. L. Prather and Clark & Bolinger, for appellees.

KEY, J.

Appellants brought this action in trespass to try title to recover from the estate of Peter McClelland, deceased, 23/35 of two lots in the city of Waco. The defendants, the legal representatives of the estate of Peter McClelland, deceased, pleaded not guilty, the statutes of limitations of three, five, and ten years, stale demand, and improvements in good faith, and prayed to be quieted in their title. In a supplemental petition the plaintiffs, among other things, pleaded certain matters in avoidance of the defendants' pleas of limitation and stale demand. The case was submitted to a jury upon special issues, and after verdict a judgment was rendered against the plaintiffs and quieting the defendants' title.

The case is presented in this court on numerous assignments of errors, but it would extend this opinion beyond proper limits to consider them in detail. While the chief ground upon which we reverse the judgment appears to be raised by the tenth assignment, the error is fundamental, and would require a reversal without being formally assigned. It is this: According to the plaintiffs' contention, the jury found that the property in controversy, when purchased by their father, under whom the defendants claim, was paid for with money which was the separate property of the plaintiffs' mother, now deceased, and McClelland had notice of that fact; and the court found as a fact that he took it in payment of an antecedent debt. The jury also found that the plaintiffs were ignorant of the facts upon which they based their claim as a resulting trust to the land in controversy until a few weeks before this suit was brought. If the findings be as stated, and were not set aside by the court, the plaintiffs were entitled to recover. The plaintiffs based their title upon the theory that a tract of land, called the "Sutton Tract," deeded to their father during the lifetime of their mother, was paid for with the separate means of the mother, and therefore her separate property, and that after her death the father sold that tract of land, and used part of the purchase money received therefor to pay for the lots in controversy. In passing on the issue of the proceeds of the Sutton tract being used to pay for the lots referred to, the jury answered, "Yes; as adduced by oral evidence of W. M. Arnold in this trial." In passing on the question whether the Sutton tract was paid for with the separate means of Mrs. Arnold, and intended by her husband to be her individual property, the jury answered, "Yes; as adduced by oral evidence of W. M. Arnold and the written evidence of Mrs. Riddle." It is contended on behalf of the defendants that these responses by the jury constitute no findings of fact, but merely refer to the evidence of certain witnesses, and that the evidence referred to will not support affirmative findings on the issues submitted. If the correctness of this construction of the verdict be conceded, then two of the vital issues in the case were not decided by the jury, and the court should have sustained the defendants' motion to set aside the verdict, but without further trial should not have rendered judgment for the defendants. The jury found no other facts that rendered the issues referred to immaterial; and, the jury having either decided those issues in favor of the plaintiffs or not decided them at all, the court should have either rendered judgment for the plaintiffs or set the entire verdict aside and awarded a new trial. Of course, if we could agree with defendants' counsel that under the testimony the court might properly have instructed a verdict against the plaintiffs, then the judgment would be correct, and should be affirmed; but no such instruction should have been given, and the rule referred to does not apply. The plaintiffs submitted testimony tending to establish their case, and it would not have been proper to withdraw it from the jury. However, in view of the errors committed during the trial, as pointed out by the defendants, we are not willing to render a final judgment in this court for the plaintiffs, even if their counsel is correct in his construction of the verdict.

The record shows that the defendants objected to the case being submitted upon special issues, and stated in writing that the only issue to be determined was whether or not the Sutton tract of land, purchased prior to the death of Mrs. Arnold, was her separate property, and because the submission of special issues was calculated to confuse the jury. They also objected to the special issues prepared by the plaintiffs' counsel and submitted by the court (1) because they involve conclusions of law, as well as of fact, and could not be determined by the jury in the absence of proper instructions as to the law; (2) because the questions as propounded by the plaintiffs were leading; and (3) because the issues submitted by the plaintiffs were not germane to the main issue, were argumentative, and tended to mislead the jury. In the defendants' motion asking the court to set aside the findings of the jury in response to the issues submitted at the instance of the plaintiffs, other objections are pointed out to some of the issues referred to. Many of the objections were tenable, and should have been sustained. For instance, the objection that the questions as prepared by the plaintiffs were leading is well founded as to nearly every issue submitted by request of the plaintiffs.

As a fair specimen of the manner in which these issues were submitted, we here copy in full the fourth, with the jury's answer thereto: "4. (a) Is it not a fact that De Cordova recovered judgment against Sutton in 1854, and that in this judgment the vendor's lien on said Sutton tract, securing the debt due by Sutton as part of the purchase money, when he bought said Sutton tract from Mrs. St. John, was foreclosed against Sutton and B. D. Arnold, and that under this foreclosure Sheriff Twaddell sold the said Sutton land, and that under this foreclosure and sale the sheriff executed the deed, with B. D. Arnold's name as grantee, of date May 1, 1855, and delivered the same to Mrs. Clementine Arnold? (b) And is it not a fact that Mrs. Clementine Arnold in person paid the sheriff the purchase money in the presence of Mrs. Margaret Riddle? (c) And is it not true that B. D. Arnold gave this money to his wife, Clementine Arnold, by delivering it to her himself out of the identical money B. D. Arnold brought from Mississippi? (d) And did he not give it to her for the purpose of paying for said Sutton tract, to be her own property? And is it not a fact that B. D. Arnold intended that this Sutton tract, when so paid for, would be the individual property of Clementine Arnold, his wife, free from any right or interest on his part? And did he not hold the title in his name for her use and benefit until her death, to be her own individual property? Ans. 4. (a) Yes. (b) Yes. (c) Yes. (d) Yes; as adduced...