Smitheal v. Smith

• Decision Date: 09 May 1895
• Citation: 31 S.W. 422
• Parties: SMITHEAL et al. v. SMITH et al.
• Court: Texas Court of Appeals

31 S.W. 422

SMITHEAL et al. v. SMITH et al.

Court of Civil Appeals of Texas.

May 9, 1895.

Appeal from district court, Grimes county; J. M. Smither, Judge.

Action by W. T. Smitheal and others, as executor and devisees of Louisa Smith, deceased, against Mortimer Smith and another, to set aside a conveyance. From a judgment for defendants, plaintiffs appeal. Reversed.

H. H. Boone, for appellants. A. C. Brietz, for appellees.

GARRETT, C. J.

This action was brought in the district court of Grimes county on May 12, 1891, by W. T. Smitheal, his wife, Mary L. Smitheal, Eliza Jane Peterson, Margaret Ann Fisher, and J. J. Creagor, as the executor and devisees of Louisa Smith, deceased, against Mortimer Smith and Philip A. Smith, to set aside a deed of conveyance executed by the said Philip A. Smith, who was the surviving husband of said Louisa Smith, to said Mortimer Smith, during the last illness of said Louisa, for blocks 7 and 12, Noland's addition to the town of Navasota, Grimes county, Tex., belonging to the community estate of said P. A. and Louisa Smith, which they alleged had been executed either without consideration or a grossly inadequate consideration, with the intent to cheat and defraud the said Louisa Smith and her estate and heirs out of their interest in said property, and to recover one-half of said property and rents, with prayer for partition. The defendant P. A. Smith filed a disclaimer of any interest whatever in said premises. Mortimer Smith pleaded misjoinder of parties, demurred to the petition, and also pleaded not guilty and a general denial. The demurrers were overruled by the court, and the case went to a jury, which returned a verdict for the defendants.

Louisa Smith and P. A. Smith were married in 1868. At that time she was a widow, Lofton, but had previously been married to one Creagor, who was the father of the plaintiffs Mary L. Smitheal, Eliza Jane Peterson, Margaret Ann Fisher, and J. J. Creagor. When she married Smith, she was the owner of considerable property, much more than he had. She died September 7, 1890, leaving a will, with W. T. Smitheal as executor and the other plaintiffs as devisees of her estate. The deed to Mortimer Smith was dated May 16, 1890. It was signed by P. A. Smith alone, and was acknowledged by him August 14, 1890, before J. E. Teague, a notary public, who had died before the trial, and was filed for record August 15, 1890. Mortimer Smith is a brother of P. A. Smith, and came to Navasota in 1881, in poor circumstances. He had a wife and two children, whom he left at his old home for about a year, when they came also. He went to work for his brother at a small salary, about an hotel which the latter was running, and afterwards took charge for him of a furniture business, in which it was shown that his services were worth from $900 to $1,000 a year.

The defense relied on was that the conveyance was made in good faith, for a valuable consideration, in pursuance of a parol contract, followed by possession, improvements, and payment of purchase money long before the date of the execution of the deed. Both of the Smiths testified that P. A. Smith bought the property in the year 1881 from one Gabert for $2,250; that about that time he agreed with Mortimer Smith to sell it to him at the same price; that he would advance money for the repair of the property, and pay the taxes, and, when the services of Mortimer and the rents amounted to enough to repay P. A. Smith, he would then convey the property to him. Mortimer moved upon the premises in 1882, and occupied one of the dwelling houses thereon ever afterwards. There was one other dwelling house thereon, and a stone building used for different purposes. They testified that Mortimer paid $500 in money received from the sale of property in New York, where he came from, and by 1887 the premises in controversy were fully paid for, but that P. A. Smith objected to making a deed then, because he was under bond as postmaster, from which he was not relieved until 1890. On the other hand, it was shown that P. A. Smith mortgaged the property as his own in 1881; that in 1886 he instituted a suit in his own name to enjoin the city of Navasota from opening a street on one side of it; that he paid taxes thereon; received the rents; and that the property was commonly known as his property until after the death of his wife. It also appeared that P. A. Smith had transferred to Mortimer a note for about $1,800, belonging to the community estate, which they claimed was for his services rendered subsequent to 1887. There was also evidence tending to show that...