Rand v. Davis

• Citation: 27 S.W. 939
• Court: Court of Appeals of Texas
• Decision Date: 27 June 1894
• Parties: RAND v. DAVIS.

27 S.W. 939

RAND v. DAVIS.

Court of Civil Appeals of Texas.

June 27, 1894.

Appeal from district court, Dallas county; Charles Fred Tucker, Judge.

Action by Mrs. J. R. Davis against Theodore D. Rand and others to cancel certain deeds and deeds of trust and notes, to remove cloud from the title to land, and to decree title to plaintiff. From a judgment for plaintiff, defendant Rand appeals. Reversed.

Appellee has filed no brief in this court, nor has she made any appearance. We find the statement of the issues in appellant's brief to be substantially correct, and they are adopted, as follows: This suit was instituted by original petition, filed August 15, 1890, and variously amended down to the fourth amended original petition, filed December 4, 1891, and first supplemental petition, filed February 1, 1892; was brought by Mrs. J. R. Davis, plaintiff, against W. H. Dillon, A. M. Highhouse, W. G. Lipscomb, and the appellant, Theodore Rand. One J. Welborn Jack was a party defendant in some of the amended petitions, but, having died pending the litigation, the case was dismissed as to him on final trial. This appeal is prosecuted by Rand alone, and his pleadings consist of his amended original answer and first and second supplemental answers, filed in due order of pleading. The object of the suit was to cancel certain deeds and deeds of trust and notes described in the petition, to remove clouds from the title of certain real estate, and to decree title therein to the appellee, Mrs. Davis. The allegations upon which this relief is sought are worthy of remark, as bearing upon the admission and relevancy of testimony, and upon the charge of the court to the jury. It is averred in plaintiff's last amended petition that she is the owner of the land described; that the other defendants conspired and colluded with one J. W. Jack and H. E. Bradford for the fraudulent purpose of cheating and defrauding her and depriving her of her homestead, by incumbering it with a lien looking to its final acquisition by them through the alleged cooperation and fraudulent collusion of her agent, the defendant Dillon. She alleged that she had the utmost confidence in said Dillon, and employed him as her agent to sell the land in controversy, and that relying upon his representations, and with implicit faith in his honesty and good intentions, she was instructed to give him first a power of attorney, and afterwards an absolute deed to the property, for the purpose of enabling him, as he claimed, to better carry out the purpose of his agency; that he claimed to have found a defect in her title which required removal, and for this and other reasons fraudulently urged upon her by her said agent, Dillon, she executed the power of attorney and absolute deed as set out in the petition; that he represented to her that the deed did not and could not affect her homestead rights, and was not so intended, and that she executed it and acknowledged it before H. E. Bradford with that understanding, and upon the faith and confidence which she reposed in Dillon; that Dillon and Jack, who was agent for Rand, appellant herein, conspired together in obtaining this transfer from her, and that Jack and the other defendants, all along, had notice and knowledge of Dillon's fraudulent intent and acts; that, in pursuance of this fraudulent conspiracy, Dillon made her believe that Jack was desirous of purchasing the land, and induced her to make the deed to Dillon; that they fraudulently obtained the money from Rand, and divided it between themselves, and that she got no part of it; that Dillon made the note for $1,500 to Rand, and the deed of trust to secure the same to Jack, as trustee for Rand, in pursuance of the same fraudulent design; and that defendant Rand, by his said agent, Jack, had full knowledge and notice of all Dillon's wrongful and deceitful conduct at the time of the negotiation by which the note and trust deed were made. The subsequent acts and transactions of the defendants Highhouse and Lipscomb are alleged to be part of the same scheme of fraud by which plaintiff has been deprived of her homestead, although they took place long after the original loan of $1,500 from Rand by his agent to Dillon, as the agent of plaintiff. Cancellation of these deeds and the original deed of trust and note of Dillon to Rand is prayed, so far as the same cast a cloud upon her title. Plaintiff's first supplemental petition alleges more specifically Jack's agency for Rand during all the transactions about the land, and that the knowledge and notice of Dillon's fraud were communicated to Jack, and known by him in the course of his employment as Rand's agent, and are therefore imputable to Rand himself. Rand is also shown to be a nonresident of this state, and never to have been in Texas, and that the other defendants are insolvent. The appellant's answers deny all notice or knowledge of Dillon's fraud by Rand himself, or by his agent, Jack; deny that Jack was authorized to engage in any such transactions as are described in the petitions; plead innocent purchaser under a recorded and unimpeached title in Dillon, without any knowledge of any fraud practiced by him upon his principal, Mrs. Davis; and pray for judgment for the amount of his note, and the foreclosure of his deed of trust. Appellant's answers also demur generally to plaintiff's several petitions, and contain special exceptions thereto on the grounds that the same do not properly allege fraud or notice thereof on Rand's part; that, if fraud is properly averred, it is shown by the petitions to have been committed by the plaintiff's agent on herself in the course of her dealings with him, and that Rand had no connection with it; that it is shown that plaintiff was dealing with her own property in a legal manner, and through her own voluntarily chosen agent, whom she implicitly trusted, and that, if fraud was committed at all, it was by her agent failing to pay over to her the money he obtained from defendant Rand, — a matter in which Rand had no interest, and in which he could not be chargeable with notice or complicity...