Scott v. Fort Worth Nat. Bank, 13850.

• Decision Date: 13 January 1939
• Docket Number: No. 13850.,13850.
• Citation: 125 S.W.2d 356
• Parties: SCOTT v. FORT WORTH NAT. BANK.
• Court: Texas Court of Appeals

125 S.W.2d 356

SCOTT v. FORT WORTH NAT. BANK.

No. 13850.

Court of Civil Appeals of Texas. Fort Worth.

January 13, 1939.

Rehearing Denied February 24, 1939.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Tarrant County, Sixty-Seventh District; Walter L. Morris, Judge.

Suit by the Fort Worth National Bank, trustee, against Winfield Scott on notes executed by defendant and for installments due under judgment entered in divorce suit requiring defendant to make payments into trust fund for benefit of his daughter. Judgment for plaintiff in the sum of $16,754.54, and defendant appeals.

Affirmed.

Cantey, Hanger, McMahon, McKnight & Johnson, of Fort Worth, for appellant.

Bryan, Stone, Wade & Agerton and B. G. Mansell, all of Fort Worth, for appellee.

SPEER, Justice.

This appeal grows out of a suit filed and prosecuted in the 67th District Court of Tarrant County, by the Fort Worth National Bank, as trustee, for Winifred Scott, to which institution we shall refer as plaintiff, against Winfield Scott, to whom we shall refer as defendant.

Plaintiff alleged that on December 18th, 1929, in cause No. 85,479, pending in said 67th District Court, Charlotte Morgan Scott procured a judgment against her then husband, Winfield Scott, for divorce and a property settlement. That pending the hearing of that cause, the parties entered into a written agreement as to a division of the property. That Mrs. Scott was awarded the custody of their minor daughter, Winifred Scott. That by the terms of the property settlement agreement, Scott agreed and obligated himself, among other things, to create a trust fund for the benefit of their daughter, payable in weekly installments of $50 each, to be deposited in the plaintiff bank, until the child should become twenty-one years of age or die prior to that time. That the judgment of the court in that case appointed plaintiff as trustee for the retention and investment of the trust fund, and adopted the property agreement as a part of said judgment, with a finding that it constituted a fair and just division of the property interests between the parties.

Further allegations were made in the instant case, to the effect that thereafter, defendant paid said installments until the sum paid aggregated $5,850.50. That on September 21st, 1932, defendant procured an order from the said 67th District Court modifying said previous judgment, to the extent that, instead of paying the weekly installment of $50, he was permitted to execute his several notes in denominations of $500 each, at the expiration of any ten weeks' period. That under orders of the court, defendant had been authorized to expend for the benefit of said child the sum of $1,066.50, which amount was allowed by the court as a credit upon his obligation and decree of the court, and that pursuant to the decree of September 21st, 1932, executed notes to plaintiff, as trustee, one on October 19th, 1932, for $483.35, one on December 28th, 1932, for $500 and one on March 8th, 1933, for $500, each note due one year from its date, with interest at four per cent per annum from date, and ten per cent interest per annum after maturity, and providing for the usual ten per cent attorneys fees. That subsequent to the date of the last mentioned note, defendant had refused to make payment of installments due under said judgment and decree of the court, or to execute notes in lieu thereof, as provided by the second decree mentioned.

Prayer was for the amount due and unpaid on the notes according to their terms and for the remaining unpaid installments, for which no notes were given up to the date of the institution of the suit.

Attached to plaintiff's petition is a copy of the judgment of the court in cause No. 85,478 (clearly the discrepancy between the number here given and that in the petition is a clerical one), which decree embraces the whole of the purported property settlement between the parties.

Defendant answered by general denial and by special answer to the effect:

1. That the 67th District Court was without jurisdiction in cause No. 85,478, to enter a judgment against him for future payments for the benefit of said child; that the only judgment the court could properly enter was one for divorce and for partition of the community property between the parties, and it was alleged that at the time of the decree there was no community or separate property belonging to them, or either of them, and the judgment, insofar as it fixed a liability against defendant for the payment of installments claimed by plaintiff, was void.

2. A plea of non est factum was interposed by defendant to the alleged property settlement plead by plaintiff and incorporated into the judgment of the court. In this connection, he alleged that at the time of the separation between him and his wife, he had told her that he would give her $10,000 and $50 per week for the support of their child, and would deposit $50 per week in a trust fund for the use and benefit of the child, but that such statement was purely voluntary on his part and was wholly without consideration. That he expressed his willingness to the foregoing terms in the presence of his wife's counsel, and was asked to put the statement in writing, so that it might be put in the judgment as an agreement for judgment. That his own attorney was present when he made the statement, and subsequently reduced the agreement to writing and signed it as his attorney, although he did not know it was so written and signed, nor did he give to his attorney actual authority to do so.

3. An alternative plea, in answer, was made that if the court should hold he had the power and authority to enter the first judgment on December 18th, 1929, then by virtue of the order of September 21st, 1932, wherein defendant was authorized to execute notes in lieu of payment of weekly installments in cash, he stood ready and willing to continue to so execute notes, as he had previously done on three occasions when the notes mentioned in plaintiff's petition were executed and delivered, provided, however, that no money judgment be rendered against him.

4. By paragraphs 6, 7 and 8 of the answer, it is alleged that conditions have changed since the judgment in cause No. "85,378" (85,478) was entered on December 18th, 1929; that defendant is without funds and his mother had refused to make any payments to said bank (the plaintiff), knowing that the mother and grandmother of said minor would get the benefit of such payments; that it would be inequitable and unnecessary to require defendant to make further payments under the terms of said alleged contract and judgment, because custody of the child had been taken from Charlotte Morgan Scott and awarded to defendant's mother, who had made ample provisions for her support and maintenance; that because of said changed condition and the support and maintenance provided by defendant's mother for the child, no necessity exists for further payments into said trust fund; that said minor is defendant's only heir and will eventually inherit any estate that he may come into possession of.

The prayer in the answer reads: "Wherefore, this defendant prays that plaintiff take nothing herein, and in the alternative nothing herein; that such judgment of date December 18th, 1929, insofar as it provides for a continuing money judgment against this defendant, be decreed to be null and void, and in the alternative that on account of the changed conditions and the inability of this defendant to make such payments, that order be entered herein relieving him of the obligation, if any, to make future payments thereon, and for such other orders as may be proper in the premises."

The court sustained special exceptions to that part of defendant's answer embraced in section four above set out by us, to which ruling the defendant excepted. The court, after hearing the pleadings and based upon the stipulated facts, entered judgment for plaintiff in the sum of $16,754.54, the amount found to be due and unpaid to plaintiff, as trustee, under the terms of the judgment dated December 18th, 1929. Exceptions were taken to the ruling of the court, and the matter is before us for review.

As we view this appeal, there are only two primary questions for determination by us. They are: 1. Did the court err in sustaining the special exceptions above referred to, and, 2. Was the judgment void which was entered by the court in cause No. 85,478, between Charlotte Morgan Scott and Winfield Scott.

The facts, stipulated by the parties to the instant suit, present what is termed the statement of facts. It there appears that in the cause No. 85478, above referred to, a judgment was entered which included what purported to be an agreed property settlement between the parties, which, insofar as pertinent to the rulings by the court on the special exceptions, reads:

"1st. That the care and custody of Winifred Scott, the minor daughter of the parties hereto, shall be awarded to the plaintiff (Charlotte Morgan Scott).

"2nd. That the property rights of the parties hereto shall be settled as follows:

"Defendant (Winfield Scott) shall pay to plaintiff (Charlotte Morgan Scott) the sum of Ten Thousand ($10,000.00) Dollars in cash, and pay to plaintiff the sum of Fifty ($50.00) Dollars each week hereafter, to be used by (for) the maintenance and education of said minor child, Winifred Scott, until such child shall arrive at the age of twenty-one (21) years; * * *".

There are further provisions in that instrument providing for the payment by defendant to plaintiff herein, weekly installments of $50 each for the purpose of creating a trust fund for said child. We shall have occasion later in this discussion to mention that item.

It will be observed that the defenses urged by defendant to which the exceptions apply were based upon alleged changed conditions, such as that he was unable to pay, his mother had refused to make further...