Sparks v. Taylor

• Decision Date: 08 January 1906
• Citation: 90 S.W. 485
• Parties: SPARKS et al. v. TAYLOR.
• Court: Texas Supreme Court

90 S.W. 485

SPARKS et al. v. TAYLOR.

Supreme Court of Texas.

January 8, 1906.

Error from Court of Civil Appeals of Fourth Supreme Judicial District.

Action by Florence L. Taylor against John Sparks and others. There was a judgment of the Court of Civil Appeals affirming a judgment for plaintiff (87 S. W. 740), and defendants bring error. Reversed.

Newton & Ward, Turner & Boyce, J. H. Garnett, and W. O. Davis, for plaintiffs in error. Taliaferro & Neill, Fiset & McClendon, M. W. Stanton, Jas. H. Robertson, and J. W. Veale, for defendant in error.

BROWN, J.

On the 3d day of May, 1902, Florence L. Taylor instituted this suit in the district court of Sherman county against J. W. Taylor and John Sparks to recover from them seven sections of land in controversy in this suit. At a subsequent date, not important to name, the original petition was amended, and T. S. & S. D. Meador, composing the firm of Meador Bros., were made parties defendant to the suit. The plaintiff's petition is quite voluminous, and in the view we take of the case it is unnecessary to state its contents more fully than to say that she claimed, as against J. W. Taylor, who was her husband, and the other defendants who claimed under him, that the property in controversy was her separate property, and that J. W. Taylor had induced her to furnish him money with which to acquire the said property under the promise that he would take the deed in her name, but, instead of complying with his promise, he took the deed in his own name, sold a greater part of the property to other persons, and conspired with John Sparks and Meador Bros. to defraud her out of her rights in the said property, and to accomplish that purpose J. W. Taylor made a deed to Sparks on the 1st day of March, 1902, and Sparks subsequently conveyed the same property to Meador Bros. The pleadings of both plaintiff and defendants were sufficient to authorize the introduction of evidence to establish the following facts, and there is evidence in the record which tends to prove the facts hereinafter stated:

On the 16th day of June, 1900, J. W. Taylor, being then unmarried, entered into a written contract with Josiah F. Crosby and his wife, Josephine Crosby, for the purchase of 30 sections of land in Sherman county; the purchase price being $9,600, of which Taylor at the time paid $1,000 in cash. Afterwards, and in the same month, J. W. Taylor and the defendant in error were married in the state of Michigan; the wife's residence theretofore being at Toledo, Ohio. Mrs. Taylor owned valuable property in Toledo, Ohio, which was her separate estate. Taylor and his wife returned to El Paso, in El Paso county, Tex., and lived together for about 60 days at the end of which time they separated and she returned to Ohio. In a short time after that Taylor went to Ohio, where he accomplished a reconciliation with his wife, and induced her to execute a mortgage upon her real estate in Toledo to secure a note for $5,000, signed by himself and her, payable to a bank in that city, for the purpose of getting money to discharge the balance of the indebtedness on the land purchased from Crosby and wife. The $5,000 was raised upon the note and turned over to Taylor. In order to induce his wife to execute the mortgage and the note, Taylor represented to her that he would pay off the balance of the purchase money on the land, using the money procured by her for that purpose, and would take the title to the said land in her name. The parties returned to El Paso, and Taylor paid off the balance remaining of the purchase money due to Crosby and wife; and, on the ____ day of November, 1900, Crosby and wife conveyed the 30 sections of land to Taylor. Taylor sold out all of the land, except seven sections, without informing his wife of the fact. In February, 1902, Taylor and his wife again separated, and she instituted a suit for divorce against him on the 1st day of March, 1902, in the district court of El Paso county; but Taylor, being absent from the county, was not served with citation for some days thereafter. In the petition for divorce Mrs. Taylor claimed a partition of the property which belonged to herself and her husband, and sued out an injunction to restrain him from selling any of that property. He was notified of the injunction by a message sent to Stratford, in Sherman county, on the 3d day of March, 1902. The injunction also embraced the Lowden National Bank of El Paso, and restrained it from delivering to Taylor any papers or money in their possession belonging to the said Taylor and wife, or either of them.

On the 15th day of February, 1902, C. F. Rudolph, who was authorized by J. W. Taylor to sell the land in controversy, entered into a written contract with Meador Bros. to sell to them the seven sections of land for the sum of $6,798.50, of which amount Meador Bros. paid $100 in cash and agreed to pay the balance so soon as an abstract of title was furnished, showing a good title in Taylor to the land, and when Taylor should sign and deliver a warranty deed to them for the seven sections of land. On the 23d day of February, 1902, C. F. Rudolph wrote a letter to T. M. Wingo, the cashier of the Lowden National Bank at El Paso, stating in effect that he inclosed therewith a deed for the seven sections of land from J. W. Taylor to Meador Bros., and also inclosed a draft for $5,659.27, and that, when Taylor should execute the deed, the draft would be credited to his account, or order, and the deed sent by the bank either to Rudolph or to Meador Bros., as the latter might direct. Meador Bros. directed the deed to be sent to them. This letter was accompanied with an abstract of the title, and sent to Meador Bros., instead of the bank. When Meador Bros. received the letter and abstract they submitted the papers to W. O. Davis, an attorney at Gainesville, who pronounced the title good, and Meador Bros. then procured a draft for the amount named in the letter from a bank at St. Joe, in Montague county, on a New York bank, and inclosed it, with the deed and the letter of Rudolph, to the Lowden National Bank at El Paso, which was received by it in due course of the mail.

On the 1st day of March, 1902, J. W. Taylor was in Stratford, Sherman county, and Rudolph informed him of the contract for the sale of the land to Meador Bros., when Taylor stated that he had already sold the land to John Sparks, and on that day he made the deed to Sparks for the land, which was recorded in Sherman county on the same day. Taylor said that he would endeavor to get Sparks to convey the land to Meador Bros., so as to fulfill the contract which Rudolph had made; and in pursuance thereof Sparks did, on the 18th day of April, in the same year, make a deed for the land to Meador Bros., and sent it to the Lowden National Bank at El Paso, with instructions to place the money for the purchase of the land to his credit, which that bank did. Rudolph had instructed the bank to pay the money over to Taylor when the deed should be executed and delivered, as shown by the letter before given, and Taylor instructed the bank that, when Sparks should deliver his deed to the bank conveying the land to Meador Bros., it should pay the money to Sparks. Meador Bros. did not know Sparks in the transaction. On the 26th day of April, 1902, Wingo, the cashier of the bank, telegraphed to Meador Bros., at St. Joe, that Sparks' deed was in the bank, to which Meador Bros. replied, inquiring as to what Sparks had to do with the transaction. The bank then telegraphed that "Taylor deeded to Sparks, and Sparks to Meador Bros." This was on the 28th day of April, 1902, and soon thereafter one of the Meador Bros. went to Stratford to look into the matter, and learned that a suit in favor of Mrs. Taylor against J. W. Taylor and John Sparks, for the recovery of the land, was pending in that county. On the 9th day of May, 1902, the bank, upon the request of Sparks, remitted to him the money Meador Bros. had paid for the land. Meador Bros. did not pay Rudolph's commission, who instructed the Lowden National Bank to hold the deeds from Taylor to Sparks and from Sparks to Meador Bros. until he should direct it to deliver them. The deeds were not delivered until some time in November, 1902, after Meador Bros. had knowledge of this suit.

Citation had not been served on Taylor in the suit for divorce at the time he executed the deed to Sparks. Therefore the doctrine of lis pendens does not apply, and it is unnecessary to pay further attention to it. Smith v. Cassidy, 73 Tex. 165, 12 S. W. 13. It is likewise claimed that the deed from Taylor to Sparks was void under article 2983 of the Revised Statutes of 1895, which reads as follows: "On and after the day on which the action for divorce shall be brought, it shall not be lawful for the husband to contract any debts on account of the community, nor to dispose of the lands belonging to the same, any alienation made by him after that time shall be null and void, if it be proved to the satisfaction of the court that such alienation was made with a fraudulent view of injuring the rights of the wife." It is unnecessary for us to construe that statute, for the reason that the deed was made and recorded on the same day the suit was filed, and the evidence does not show that the petition was filed at an hour prior to the making and recording of the deed. Clearly it could not be held that a deed delivered prior to the filing of the petition for divorce would be void under that statute, and, if the plaintiff claims that the suit was in fact filed before the deed was made, she should have established that fact by evidence. Meador Bros. have the legal title, and Mrs. Taylor is setting up an equity in the land growing out of a trust relation between her and J. W. Taylor. To entitle her to prevail against Meador Bros., the evidence must show that the latter are not bona fide purchasers. Barnes v. Jamison, 24 Tex. 362; ...