Pitman v. Holmes

• Decision Date: 10 February 1904
• Citation: 78 S.W. 961
• Parties: PITMAN et al. v. HOLMES.
• Court: Texas Court of Appeals

78 S.W. 961

PITMAN et al. v. HOLMES.

Court of Civil Appeals of Texas.

February 10, 1904.

Error from District Court, Bexar County; S. J. Brooks, Judge.

Action by Lydia R. Holmes against H. A. Pitman and another. Judgment for plaintiff. Defendants bring error. Affirmed.

H. B. Salliway and Ed Haltom, for plaintiffs in error. Bell & McAskill, for defendant in error.

NEILL, J.

Defendant in error (plaintiff below) on the 23d day of January, 1902, exhibited her original petition in the district court against plaintiffs in error, Hester A. Pitman and her husband, C. R. Pitman, defendants below, praying for a cancellation of a certain partition of lands evidenced by the deeds of the respective parties, made between them on the 21st day of October, 1884. In the first amended petition, on which the case was tried, it is alleged, in substance: That on the 1st day of January, 1871, plaintiff's father, T. J. Vivian, died intestate, leaving defendant Hester A. Vivian (now Pitman), his wife, and plaintiff, then an infant two months old, surviving him, as his only heirs, and that there never was any administration upon the estate, nor partition of the property, save such as is by this suit sought to be set aside. That at the time of his death Vivian resided in Bexar county, and owned personal property, consisting of money, cattle, and horses, of the value of $12,000, all of which was acquired before his marriage to Hester A., and was at the date of his death his separate estate. That, when plaintiff was two years old, her mother, Hester A., married her codefendant, C. R. Pitman, and that from then plaintiff resided with them until she was married, on the 17th day of July, 1884, in her thirteenth year, to one J. L. Johnson. That, upon the death of her father, her mother took possession of his money, horses, and cattle, assumed absolute control thereof, and used, managed, and invested the same as she saw fit. That on the 13th day of May, 1873, her mother invested $2,500 of T. J. Vivian's money in a tract of 850 acres of land situated in Bexar county, Tex., which she purchased for that sum from Samuel Hutton. The land is particularly described in plaintiff's petition. That, by reason of the fact the land was purchased with money of the separate estate of her father, plaintiff became the owner of, and entitled to, an undivided two-thirds interest in the same, and her mother to the remaining one-third interest. That afterwards, on the 9th day of July, 1872, the defendant Hester A. Pitman (then Vivian), in violation of plaintiff's rights in said lands, made a pretended sale of about 200 acres thereof to her father, Robert Adams. The land thus alleged to have been conveyed to him is also specifically described in plaintiff's petition. That on the 21st day of October, 1884, a short time after plaintiff's marriage to J. L. Johnson, and while she was a mere child, of immature judgment, with no business experience, still under the influence of her parents, incapable of guarding and protecting herself against their misrepresentations and fraud, she and her husband entered into a partition agreement with defendants, by the terms of which she received from them a deed to about one-half of the 638 acres of land retained by her mother after her conveyance of 200 acres out of the 850 acres originally purchased to Adams; that is to say, they conveyed her 319 acres, specifically described by metes and bounds. And at the same time, and in the same manner, plaintiff and her then husband conveyed to defendants all their right, title, and interest in the other one-half of said land; the quantity of land conveyed being 319 acres, which is specifically described in the deed, and such description set out in her petition. That, at the time of said partition and execution of the partition deeds, defendants knew said lands had been purchased with the money belonging to the separate estate of plaintiff's father, acquired by him prior to his marriage to her mother, but that plaintiff had no knowledge of such fact, and did not know of it until many years thereafter. That, for the purpose of cheating and defrauding plaintiff, defendants fraudulently concealed such fact from her, and, for the purpose of inducing plaintiff to make said partition, and to accept one-half of the 638 acres as her share, falsely and fraudulently represented to her that said lands were purchased by defendant Hester A. Pitman, while Hester Vivian, with the money belonging to the community estate of herself and deceased husband, and that in consequence it was community property, and that plaintiff was entitled to but one-half of the property. That, with full faith and childish confidence in said representations of her parents, and relying thereon, plaintiff executed said deed, believing, as defendants stated, that said land was purchased with community funds, and not with the separate funds of her deceased father, and, so believing, she accepted the deed to the 319 acres of land as her share of the 638-acre tract. That in 1885 her husband, J. L. Johnson, died, and plaintiff again became an inmate of her mother's household, where she continued to reside until the 19th day of December, 1886, when she married Solomon Holmes, and moved with him from Bexar county, far away from her relations and relatives of her father, and did not return until 1901, when, for the first time, she discovered that defendants had practiced the fraud upon her in the partition of said lands. Then she learned for the first time that the lands had been purchased and paid for with money acquired by her father previous to his marriage with her mother, and discovered that defendants' statements and representations made at the time of the partition, and on divers occasions prior thereto, were wholly false and fraudulent. Plaintiff prayed that her deed to defendants be annulled and canceled, and that she have judgment out of the 319 acres held by defendants for such additional number of acres as would give her two-thirds of the 638 acres, and for possession of that portion of same as the court may ascertain and declare to be her property. By the trial amendment, plaintiff alleged that she had no means of discerning the deceit and fraud complained of in her first amended original petition, as the facts therein alleged were known to her mother and Robert Adams, and her father's relations, who knew of her father's having separate means; that defendant and Robert Adams did not tell her the facts, but informed her of the matter as alleged in her first amended petition; that she did not live near her father's relatives, was not acquainted with them, had no means of communicating with them, and had no reason to suppose that they knew anything beneficial to her, nor did she have any reason to think or believe that any one else had any information that would be beneficial to her in the matter, but placed implicit trust in her mother's representations that the same was community property; that there was no record to acquaint her of the money and property left by her father, and she had no means of discovering the fraud perpetrated upon her, nor reason to suspect the same, nor notice and information of such knowledge on the part of anybody, or reason to suspect anybody knew of such facts; and that she knew of no facts or circumstances calculated to put an ordinarily prudent person upon inquiry as to the existence of the true state of facts in regard to the purchase of the land with her father's separate property. The defendants answered by general and special exceptions, a general denial, and pleas of the several statutes of limitations. The case was tried before a jury, and resulted in a verdict and judgment in favor of plaintiff, from which defendants prosecute this writ of error.

Conclusions of Fact.

As no assignment of error calls in question the sufficiency of the evidence to support the verdict, we deem it unnecessary to summarize and discuss the evidence, or do more than state that, from a careful examination and consideration of it, we have concluded that it is reasonably sufficient to sustain the verdict upon every material allegation in plaintiff's petition.

Conclusions of Law.

1. It is contended by defendants, under their second and third assignments of error, that the allegations of plaintiff are not sufficient to prevent the statute of limitations from running against her cause of action from the time the partition sought to be annulled was made between the parties, and that therefore plaintiff's petition shows upon its face that her action was barred when this suit was instituted. It is elementary that when a party, by his own fraud, has prevented the other party from coming to a knowledge of his rights, he cannot, in good conscience, avail himself of the statute, if the fraud was concealed from the plaintiff by the defendant, or was of such a character as necessarily...