Parrish v. Parrish

• Decision Date: 02 January 1926
• Docket Number: (No. 11332.)
• Citation: 280 S.W. 901
• Parties: PARRISH v. PARRISH et al.
• Court: Texas Court of Appeals

Page 901

280 S.W. 901

PARRISH v. PARRISH et al.

(No. 11332.)

Court of Civil Appeals of Texas. Fort Worth.

January 2, 1926.

Appeal from District Court, Archer County; H. R. Wilson, Judge.

Suit by H. I. Parrish against George Parrish and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Taylor, Muse & Taylor and J. L. Lackey, all of Wichita Falls, for appellant.

W. B. Hamilton, of Dallas, and G. R. Pate, of Wichita Falls, for appellees.

DUNKLIN, J.

H. I. Parrish instituted this suit to cancel a deed of conveyance of two tracts of land, one containing 640 acres and the other 320 acres, situated in Archer county, Tex., made by his mother, Mrs. Nancy J. Parrish, to three of her sons, to wit, George, Alvin, and Reuben Parrish. Plaintiff alleged that large sums of money had been collected by the grantees in said deed from oil rentals upon said land, and that Mrs. Nancy J. Parrish had loaned $28,790 and had made the note payable to her said sons. In addition to a prayer for a cancellation of said conveyance, plaintiff sought a recovery of an undivided one-eleventh interest in the amounts so received by said sons from such rentals and as payees of said promissory note.

The three grantees in the deed of conveyance, together with Reece F. Carter, I. G. Balyeat, John F. O'Donohoe, and the Sunshine State & Refining Company, a corporation, were all made parties defendants; they being sued as holders of oil leases upon said lands executed by Mrs. Nancy J. Parrish and her three sons, George, Alvin, and Reuben Parrish. The plaintiff has prosecuted this appeal from a judgment rendered against him in favor of all the defendants upon an instructed verdict.

Mrs. Nancy J. Parrish is still living. She was not made a party to the suit, nor was the suit instituted in her behalf, but solely in the interest of the plaintiff. According to allegations in plaintiff's petition, he is the son and heir of Mrs. Nancy J. Parrish, and as such is entitled to an undivided one-eleventh interest in said land, money, and notes. The ground upon which the suit was based consisted of allegations in plaintiff's petition to the effect that plaintiff's mother was unduly influenced by George, Alvin, and Reuben Parrish, her sons, to convey the property in controversy to them, and also to have the promissory note described in plaintiff's petition executed in their favor, all without any consideration therefor, and for the purpose of defrauding plaintiff of his interest therein; that at the time of the filing of the suit Mrs. Nancy J. Parrish was 70 years old; that she resided with George, Alvin, and Reuben Parrish at the time the deed was executed; and that she was overreached and unduly persuaded by them in all said transactions.

It was further alleged in the petition that the lands in controversy had belonged to the community estate of Mrs. Nancy J. Parrish and her deceased husband, J. E. Parrish, who was plaintiff's father, and that the father had devised the same to Mrs. Nancy J. Parrish by his last will and testament, which had been duly probated. It was further alleged that plaintiff had resided with his parents until he had reached the age of 33 years, during which time he had worked upon the farm with his father and helped to pay for all of said property.

The defendants filed a general demurrer and several special exceptions to the petition, and also filed a general denial and a special answer, setting up the purported will of J. E. Parrish and the order of the court probating the same, for the purpose of showing an absolute and unconditional devise of the fee-simple title to the land in controversy in Mrs. Nancy J. Parrish.

No statement of facts has been brought up to this court, but in lieu thereof appellant relies upon the recitation in two bills of exception approved by the trial judge to show that certain facts were proven upon the trial which rendered the peremptory instruction improper. In the first bill of exception, it was recited that:

The court "believed that the evidence was sufficient on the question of undue influence to submit that issue to the jury, but for the fact that he did not believe that the plaintiffs had such interest in the subject-matter involved in this suit that would authorize him to maintain this suit, and that he was directing said verdict and instructing the jury to find for the defendants upon the sole ground that the plaintiffs did not have such interest in the subject-matter of this suit as would authorize him, as a matter of law, to maintain this said cause."

It is a well-recognized general rule that a bill of exception cannot supply a statement of facts, however full its recital of facts may be. Rountree v. City of Galveston, 42 Tex. 612; Cates v. McClure, 66 S. W. 224, 27 Tex. Civ. App. 459; Dull v. Drake, 48 S. W. 364, 68 Tex. 205. It is also a familiar rule that, in the absence of a statement of facts, every reasonable presumption will be indulged consistent with the pleadings to support the judgment, and in such cases exceptions to the court's charge will not be considered. Lewis v. Black, 16 Tex. 652; Watson v. Birdwell (Tex. Civ. App.) 98 S. W. 407; Royal Ins. Co. v. Texas & G. Ry. Co., 115 S. W. 117, 123, 53 Tex. Civ. App. 154; Williams v. Robertson, 15 S. W. 887, 52 Tex. Civ. App. 599; Elliott v. Waites & Wilkie (Tex. Civ. App.) 124 S. W. 992; Wertheimer v. Hargreaves Printing Co. (Tex. Civ. App.) 180 S. W. 282; H. & T. C. Ry. Co. v. Hughston (Tex. Civ. App.) 165 S. W. 42; I. & G. N. Ry. Co. v. Hood, 118 S. W. 1119, 55 Tex. Civ. App....