Snyder v. Citizens State Bank, 11672.

• Citation: 184 S.W.2d 684
• Decision Date: 21 December 1944
• Docket Number: No. 11672.,11672.
• Parties: SNYDER et al. v. CITIZENS STATE BANK et al.
• Court: Texas Court of Appeals

184 S.W.2d 684

SNYDER et al. v. CITIZENS STATE BANK et al.

No. 11672.

Court of Civil Appeals of Texas. Galveston.

December 21, 1944.

Rehearings Denied January 11, 1945.

On Motion to Correct Opinion January 24, 1945.

Appeal from District Court, Harris County; Phil D. Woodruff, Judge.

Trespass to try title by Lillie Violet Snyder and her husband against Citizens State Bank and others, wherein defendants T. A. Binford, M. B. Traweek, and Zoie Traweek brought a cross-action. There was a verdict for plaintiffs on which a judgment was entered for plaintiffs except that a judgment non obstante veredicto was rendered in favor of defendant T. A. Binford. From the judgment both the plaintiffs and defendants appeal.

Affirmed in part, and in part reversed and rendered.

Richard H. Burks, E. H. Suhr, and Bryan, Suhr & Bering, all of Houston, for Snyder et vir.

L. Edward Mooney, of Houston, for Traweek et ux.

Lewis & Knipp and Ernest A. Knipp, all of Houston, for Binford.

MONTEITH, Chief Justice.

This suit was brought by Lillie Violet Snyder and her husband in statutory form of trespass to try title, for the recovery of the title and possession from M. B. Traweek and wife, Zoie Traweek, of two tracts of, respectively, 108.67 and 4.31 acres of land out of the H. Decrow Survey; for the recovery from T. A. Binford of a tract of 89.23 acres of land in the Wiley Smith Survey, all in Harris County, Texas, and for the recovery from E. C. Carnes of all of said lands. Defendants, T. A. Binford and M. B. Traweek and wife, Zoie Traweek, answered by defensive pleas and by cross action in form of trespass to try title. They pled specially the 3, 5 and 10 years statutes of limitations. By trial amendment, T. A. Binford alleged that he had purchased said 89.23 acres of land out of the Wiley Smith Survey from M. B. Traweek and Zoie Traweek for value and without notice of the claim of Mrs. Snyder thereto; that Mrs. Snyder had expressly ratified and confirmed the acts of E. C. Carnes in conveying said land to Zoie Traweek, and that she was estopped from setting up want of authority in E. C. Carnes to convey said land. He specially pled the two and four year statutes of limitation. No answer was filed by defendant E. C. Carnes.

The jury found in substance:

(1) That Mrs. Snyder executed the deeds conveying the land to E. C. Carnes for the "sole purpose of enabling him to sell" the land.

(2) That she instructed Carnes to sell the land "only for cash."

(3) That M. B. Traweek knew that Mrs. Snyder had an interest in this land at the time of the delivery of the deeds from E. C. Carnes to Mrs. Traweek, conveying this land to her.

(4) M. B. Traweek knew that Mrs. Snyder had instructed Carnes to sell the land "only for cash" at the time the deeds thereto were delivered to Mrs. Zoie Traweek.

(5) That Mrs. Snyder did not know at the time the deeds from Carnes to Mrs. Traweek were delivered that Carnes was trading said land for stock in the Gold Mining Company.

(6) That Mrs. Snyder did not accept the stock after she learned that Carnes had traded the land for it.

(7) That T. A. Binford knew prior to and at the time he purchased the 89.23 acre tract of land from the Traweeks that Mrs. Snyder had an interest therein.

(8) That T. A. Binford knew prior to and at the time he purchased the 89.23 acre tract of land from the Traweeks that Mrs. Snyder had instructed Carnes to sell the land "only for cash."

(9) That T. A. Binford did not have peaceable and adverse possession of said land for a period of three years.

(10) That Mrs. Snyder did not authorize Carnes to file the suit for the recovery of the land in 1935 and to prosecute it for her benefit.

(11) That the words, acts and conduct of Mrs. Snyder prior to the date T. A. Binford paid the $3000 to M. B. Traweek were not such as to lead an ordinarily prudent person to believe that she was not then asserting any title to the 89.23 acres of land.

(12) T. A. Binford failed to prove payment of taxes for five years. There was no evidence of ten years adverse possession by him.

Based on the answers to the special issues submitted judgment was rendered that plaintiff, Lillie Violet Snyder, recover from all defendants the title and possession of said tracts of 108.67 and 4.31 acres of land out of the H. Decrow Survey. The motion of T. A. Binford for judgment non obstante veredicto was granted by the trial court and judgment was rendered in his favor and against plaintiff for the title and possession of the 89.23 tract of land out of the Wiley Smith Survey.

The Snyders concede in their brief that they have no equitable title to the tract of 20.84 acres of land out of said 89.23 acre tract in the Wiley Smith Survey which was conveyed by Mrs. Snyder to E. C. Carnes by deed dated July 16, 1934, and agree that judgment should have been rendered in favor of T. A. Binford for this tract of land.

The plaintiff herein, Lillie Violet Snyder, was the wife of T. R. Wunsche, who died in November, 1933. In December, 1933, E. C. Carnes called upon her at her home on the 89.23 acre tract in the Wiley Smith Survey for the stated purpose of selling her a monument for the grave of her deceased husband. She informed him at that time that she had no funds with which to purchase a monument but that she owned interests in certain lands in Harris County, Texas, with other parties, which she would like to sell. She stated to Carnes, however, that it would be necessary to "straighten out" the title to said property, as she expressed it, before the land could be sold. Carnes informed her that he had known her husband and that he would "straighten it out" for her. At his suggestion, plaintiff executed and delivered to him a power of attorney coupled with an interest in the land, authorizing him to have said lands partitioned for her. Acting thereunder, he employed an attorney who filed suit and secured a partition of the lands in which Mrs. Snyder, then Mrs. Wunsche, had an interest. In said partition the three tracts of, respectively, 108.67 and 4.31 acres in the Decrow Survey, and the tract of 89.23 acres in the Wiley Smith Survey, were set aside to plaintiff. Out of other land set aside to Mrs. Snyder in said partition a 27.40 tract was set aside to E. C. Carnes and a tract of 27.40 acres was set aside to the attorney employed by him to bring said partition suit, as their fees under said power of attorney.

On July 16, 1934, Mrs. Snyder conveyed to E. C. Carnes 20.84 acres of land out of said 89.23 acre tract in the Wiley Smith Survey. She testified that this conveyance was made with the understanding that Carnes would convey the 27.40 acre tract of land acquired by him under said powers of attorney to her. Carnes did not carry out this alleged agreement but later conveyed said 27.40 acre tract to Mrs. Zoie Traweek.

Later E. C. Carnes informed plaintiff that he had found a purchaser for the three tracts of land involved in this suit for the sum of $26,000 cash, and at his suggestion she transferred to him 68.39 acres of land, the balance of said 89.23 acre tract of land in the Wiley Smith Survey, and the tracts of 108.67 and 4.31 acres in the H. Decrow Survey in order that he might consummate said sale for her. By deeds dated January 18, 1935, E. C. Carnes conveyed 89.23 acres of land in the Wiley Smith Survey, being the two tracts of 68.39 and 20.84 acres of land out of said Survey, and the two tracts of 108.67 and 4.31 acres of land in the H. Decrow Survey to Mrs. Zoie Traweek for a recited consideration in each deed of $10 and other valuable considerations. Mrs. Snyder did not know that Carnes had conveyed this land to Mrs. Traweek and that he had accepted stock in a gold mining corporation in consideration therefor. She testified that, in 1940, Carnes for the first time suggested that she should file suit for the recovery of this land and that she then asked M. B. Traweek whether he had paid Carnes any money for the land and that he had told her at that time that he had not. By deed dated April 10, 1935, Mrs. Zoie Traweek and her husband, M. B. Traweek, conveyed said 89.23 acres of land in the Wiley Smith Survey to T. A. Binford.

E. C. Carnes testified that before he sold any of said land to Mrs. Zoie Traweek the terms of the sale were discussed at a meeting at which he, M. B. Traweek and Mrs. Zoie Traweek and T. A. Binford were present and that he informed them at this meeting that he held said land in trust for Mrs. Snyder, then Wunsche, and that he was only authorized to sell it for the sum of $26,000 in cash. He testified that, prior to that time and prior to the time the land was conveyed to T. A. Binford by Mrs. Zoie Traweek and M. B. Traweek, he had told Binford that he held said land in trust for Mrs. Wunsche and that he was authorized to sell it for cash only.

It is undisputed that E. C. Carnes accepted, as a consideration for the sale of said land to Mrs. Traweek, 26,000 shares of stock in the Crown Consolidated Mining Company, an Arizona mining corporation, in which M. B. Traweek and T. A. Binford each owned 250,000 shares. The corporation had an authorized capital of five or six million shares of a par value of $1 per share. E. C. Carnes testified that he had attempted to sell said stock but that he could not get an offer for it. None of this stock was ever given to or received by the plaintiff, Mrs. Snyder, and it is undisputed that she has never received any consideration for the sale of said land.

The record shows that Mrs. Snyder had gone only to the fourth grade in the public school. She testified that she could not read very well; that she did not know what the deeds she had signed at the suggestion of E. C. Carnes stated, and that she did not know what stock was.

A short time after plaintiff had executed and delivered the deeds to said land to E. C. Carnes, M. B. Traweek sent a truck to her home on the 89.23 acre tract of land, which had been conveyed to T. A. Binford, and moved her...