Sabinal Nat. Bank v. Cunningham

• Citation: 256 S.W. 317
• Decision Date: 22 November 1923
• Docket Number: (No. 21.)
• Parties: SABINAL NAT. BANK et al. v. CUNNINGHAM et al.
• Court: Court of Appeals of Texas

256 S.W. 317

SABINAL NAT. BANK et al. v. CUNNINGHAM et al.

(No. 21.)

Court of Civil Appeals of Texas. Waco.

November 22, 1923.

Appeal from District Court, Falls County; John Watson, Judge.

Action by Mrs. Fannie Cunningham and others, against Mollie Hughes and the Sabinal National Bank. From the judgment rendered, defendants appeal. Affirmed.

L. Old, of Uvalde, and H. C. King, of Sabinal, for appellants.

Sam R. Scott, of Waco, for appellees.

BARCUS, J.

H. T. Herring and wife, L. J. Herring, were married in 1867, and lived together as man and wife until August, 1919, when Mrs. Herring died, intestate. There was no administration on her estate, and it was agreed that none was necessary. In 1887, E. T. Phillips conveyed to Mrs. L. J. Herring 116 acres of land in Falls county. There was nothing in the deed to show that it was intended as her separate property. Mr. and Mrs. Herring occupied the land as their homestead until the death of Mrs. Herring. Since Mrs. Herring's death H. T. Herring has lived with his daughter, Mrs. Hughes, at Uvalde, Tex., and J. C. Herring, one of the appellees, has been in possession of the land, working same and paying rent to his father, H. T. Herring.

On September 15, 1921, H. T. Herring conveyed his interest in the land to his daughter, Mrs. Mollie Hughes. On October 17, 1921, Mrs. Hughes, a widow, executed a deed of trust on her interest in the property to the Sabinal National Bank, to secure a debt which she owed at that time to the bank of about $2,300.

Appellees, being all of the heirs of Mrs. L. J. Herring, deceased, except Mrs. Mollie Hughes, filed this suit on April 14, 1922, against appellants, Mrs. Mollie Hughes and the Sabinal National Bank, for a partition of the land. Appellees claimed that the 116 acres of land was the separate property of their mother, Mrs. L. J. Herring, and that they owned four-fifths and that Mollie Hughes owned one-fifth interest therein; and that the Sabinal National Bank was entitled to a lien on only the Mollie Hughes' one-fifth interest.

The Sabinal National Bank answered by general demurrer, plea of not guilty, and specially pleaded that it was an innocent purchaser for value, in that, at the time it took its deed of trust to secure the note, it was represented to the bank by Mollie Hughes that she owned a one-half plus a one-fifth interest in the land, and that it did not have any notice of any claim of the appellees to the property at the time it took said deed of trust. The appellant Mollie Hughes by her answer claimed that she was the owner of an undivided one-half of the property by deed of conveyance from her father, H. T. Herring, and entitled to one-fifth of the remaining half interest as an heir of her mother, Mrs. L. J. Herring.

There were two issues submitted to the jury: (1) Was the consideration for the deed of date September 21, 1887, from E. T. Phillips to L. J. Herring paid for out of the separate funds of the said L. J. Herring? (2) Was it the intention of H. T. and L. J. Herring at the time of the execution and delivery of the deed from E. T. Phillips to L. J. Herring to the property in controversy that the same should be the separate (property) of the said L. J. Herring?

The court charged that the burden of proof was upon the appellees to prove by a preponderance of the testimony an affirmative answer to each of said issues. The jury answered each of the questions in the affirmative. The court entered a judgment awarding four-fifths of the property to the appellees and one-fifth to appellant Mrs. Hughes, and limited the Sabinal National Bank's deed of trust to her one-fifth interest, and ordered the property partitioned.

Appellants, by their assignments of error 1 to 5, complain of the trial court's action in permitting the witnesses Fannie Cunningham, one of the appellees, and Gus Scott and W. J. Cheirs, to testify to declarations made to them by H. T. Herring while he and his wife were in possession of the land, to the effect that the land belonged to his wife, that her separate property had paid for the same, and that he had had the deed made in her name, and that at the time the deed was made he told his wife:

"This is yours, bought with your money. You have never been satisfied with the investments we had before, and I hope you will be satisfied with this. This land is yours, and my name is not on record at all."

The objections urged to this testimony were that the record shows that H. T. Herring is living and is able to attend court, and that statements made by him were hearsay and could not be introduced while he was living, and that same was an effort to prove title by parol statements and declarations. These assignments are overruled. The declarations of a person while in possession of land are admissible to show the character of possession he is claiming, and are also admissible against interest; and any statement...