Smith's Heirs v. Hirsch

• Decision Date: 12 July 1917
• Docket Number: (No. 225.)
• Citation: 197 S.W. 754
• Parties: SMITH'S HEIRS v. HIRSCH et al.
• Court: Texas Court of Appeals

197 S.W. 754

SMITH'S HEIRS v. HIRSCH et al.

(No. 225.)

Court of Civil Appeals of Texas. Beaumont.

July 12, 1917.

Rehearing Denied October 10, 1917.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Suit by Mary A. Smith against Jules Hirsch and others, in which the heirs of Mary Ann Smith were substituted as parties plaintiff. Judgment for defendants, and plaintiffs appeal. Affirmed.

P. K. Ewing, of Houston, Willett Wilson, of Port Lavaca, and D. F. Rowe, of Houston, for appellants. Wilson, Dabney & King, T. J. Lawhon, Baker, Botts, Parker & Garwood, Andrews, Streetman, Burns & Logue, J. W. Lockett, L. A. Carlton, R. H. Holland, Maurice Hirsch, Geo. A. Hill, Jr., W. H. Wilson, and S. H. Brashear, all of Houston, for appellees.

HIGHTOWER, C. J.

Mary Ann Smith, on the 15th day of April, 1875, owned in her separate right, and in the John Brown Jones one-third league survey in Harris county, Tex., which may be described as follows: (1) 200 acres known as the "Dunman Homestead," and (2) approximately an undivided one-tenth interest in the remaining part of two tracts of 492 and 279½ acres, after deducting therefrom said 200 acres.

Mary Ann Smith, at the date above mentioned, was a married woman, the wife of Nathan W. Smith, and, joined by her husband, on said 15th day of April, 1875, said Mary Ann Smith made and executed to Pleasant S. Humble, of Harris county, Tex., for the recited consideration of $500, the following deed:

"The State of Texas.

"Know all men by these presents, that we, Nathan W. Smith and Mary Ann Smith, of the county of Harris in the state of Texas, in consideration of the sum of five hundred ($500) dollars to us paid by Pleasant S. Humble, of the county of Harris in the state of Texas, have granted, bargained, sold, and released, and by these presents do grant, bargain, sell and release, unto the said Pleasant S. Humble the following piece or parcel of land, including improvements, described as follows:

"Being the homestead of Mrs. Nancy Dunman, including two hundred (200) acres of the headright of J. B. Jones, the same being situated in Harris county, Texas, bordering on the San Jacinto river, and adjoining the survey known as the W. B. Adams headright, and adjacent land to be the same as the county records show to have been transferred from the adjacent Nancy Dunman unto Elizabeth J. Hogan. Also all our interest and claim in or on the above-described property and land, included in the homestead and J. B. Jones survey.

"To have and to hold the above-granted premises to him, the said Pleasant S. Humble, forever, together with all and singular the rights, members, hereditaments, and appurtenances to the same belonging or anywise incident or appertaining. To have and to hold all and singular the premises above-mentioned unto the said Pleasant S. Humble to him, his heirs and assigns, forever; and we do hereby bind ourselves, heirs, executors, and administrators to quitclaim all and singular the said premises unto P. S. Humble, his heirs and assigns, against every person whomsoever lawfully claiming, or to claim, the same or any part thereof.

"In testimony whereof, we, Nathan W. Smith and Mary Ann Smith, have hereunto set our hands and seal, using scroll for seal, this the 1st day of January, A. D. 1875.

                                "Nathan W. Smith [Seal.]
                                "Mary Ann Smith [Seal.]"
                

This deed bears the following acknowledgment:

"State of Texas, Harris County.

"Before me, James Harrington, a justice of peace of the county of Harris in the state of Texas, duly commissioned and qualified, this day came and personally appeared Nathan W. Smith and wife, Mary Ann Smith, of the county aforesaid, to me personally known, who in my presence signed the above deed, and the said Mary Ann Smith, wife as aforesaid, having been examined by me and apart from her said husband, acknowledged the execution of the foregoing deed, dated the 15th day of April, A. D. 1875, and delivered the same as their binding act and deed, for the purposes and considerations herein set forth and contained.

"Given under my hand and seal at my office this 15th day of April, A. D. one thousand eight hundred and seventy-five.

                    "James Harrington
                             "J. P., N. P., H. C. [Seal.]"
                

This deed shows to have been filed for record in Harris county, Tex., May 14, 1875.

Mary Ann Smith, on May 30, 1901 (she being then a widow), made, executed, and delivered to Sidney Westheimer, for a recited consideration of $5, the following deed:

"State of Texas, County of Galveston.

"Know all men by these presents, that I, Mary Ann Smith, a widow, of Chambers county, being an heir of Elizabeth Hogan, who was an heir of Joseph and Nancy Dunman, for and in consideration of $5, to me in hand paid by Sidney Westheimer, the receipt whereof is hereby acknowledged, have granted, bargained, sold, and conveyed and by these presents do grant, bargain, sell, and convey unto the said Sidney Westheimer, all my right, title, interest, and claim in and to all that part of the John Brown Jones original survey (which survey lies on San Jacinto river in Harris county, Texas), which was formerly owned by Jos. Dunman and Nancy Dunman, his wife, or by my mother, Elizabeth Hogan. To have and to hold said interest in said land unto said Sidney Westheimer, his heirs and assigns forever.

"Witness my hand at Galveston, this the 30th day of May, A. D. 1901.

                  "[Signed]           Mary Ann Smith."
                

This deed bears the acknowledgment of Mary Ann Smith, which is in the usual and regular form for a single woman, and which is certified by Thos. L. Cross, a notary public of Galveston county, Tex., on May 30, 1901.

This suit, as originally filed, was an action of trespass to try title simply, and was brought by Mary Ann Smith, as sole plaintiff, on December 7, 1904, against Jules Hirsch, Sidney Westheimer, and others unnecessary to name, to recover from said defendants the title and possession of the land described in the above deeds. The action remained one of trespass to try title until the filing of plaintiffs' third amended original petition, by which, for the first time, the plaintiff, Mary Ann Smith, also sought to cancel and set aside the deed from herself to Westheimer, above described, on the alleged ground that said deed was obtained by fraud practiced upon her by Westheimer. Afterwards, plaintiff, Mary Ann Smith, filed her fourth amended original petition, by which, in addition to the allegations of trespass to try title and the allegation that said deed to Westheimer was obtained by fraud, she also sought to cancel and annul said deed to Westheimer on the ground of mutual mistake in its execution. A fifth amended original petition was filed by the plaintiff, Mary Ann Smith, containing substantially, the same allegations and prayer contained in her fourth amended petition.

Mary Ann Smith, on January 5, 1915, died, and on September 22, 1915, by the sixth amended original petition, Arthur Smith, Harry Smith, S. J. Smith, Thomas Smith, Elizabeth Keller, and her husband, A. F. Keller, Sadie Nelson, a feme sole, Della George, and her husband, E. M. George, Lilla Stephenson, and her husband, Lex Stephenson, and Lula Pettit, and her husband, R. N. Pettit, the sole surviving heirs of said Mary Ann Smith, made themselves parties plaintiff, in the stead of Mary Ann Smith, and were permitted to continue the prosecution of this suit as the heirs of Mary Ann Smith.

The sixth amended original petition, which is quite lengthy, in addition to the action of trespass to try title, also alleges that the deed from Mary Ann Smith to Westheimer, above described, was procured by fraud perpetrated upon Mary Ann Smith by said Westheimer, or, if not so procured by fraud, that then the same was the result of a mutual mistake, and that, in either event, it ought to be held by the court that said Westheimer was simply a trustee of the legal title of said land for the benefit of said Mary Ann Smith, with the equitable title in her. Plaintiffs further alleged that the defendants, other than the defendant Westheimer, claimed through him under said deed, and were not innocent purchasers, but, if held to be so, plaintiffs had the right to recover from their vendors, in each instance, the value of the land at the time of trial, or the price for which sold, with lawful interest, as should be to the advantage of the plaintiffs, and as they might elect. There were other averments in the petition, which it is unnecessary here to mention. All of the defendants duly answered by general denial, plea of not guilty, pleas of innocent purchaser, and pleas of limitation.

After conclusion of the evidence, the trial court peremptorily instructed a verdict in favor of all defendants, and judgment was entered in favor of the defendants upon such verdict, and plaintiffs were allowed to take nothing by the suit. To this action on the part of the court plaintiffs duly excepted, and the case has been properly brought here for review.

Appellants' first assignment of error is as follows:

"The court erred in peremptorily instructing the jury to return a verdict in favor of defendants, over the objection and exception of the plaintiffs, duly taken and preserved, because the defendants were not entitled to a verdict as matter of law, but, on the contrary, the evidence was amply sufficient to warrant a finding by the jury under the issues entitling plaintiffs to recover against the defendants, or some of them, as shown by plaintiffs' bill of exceptions No. 11."

The first proposition under this assignment is:

"The evidence reasonably warranted the jury in inferring, in connection with the other requisite facts, that the quitclaim deed from Mary A. Smith to Westheimer was obtained under circumstances of fraud, or, if not, of mistake, as alleged, entitling plaintiffs to relief."

There are other propositions under the assignment, by which it is contended that defendants were not...