Stallings v. Hullum

• Decision Date: 03 February 1891
• Court: Texas Supreme Court
• Parties: STALLINGS v. HULLUM.

15 S.W. 677

STALLINGS v. HULLUM.

Supreme Court of Texas.

February 3, 1891.

Commissioners' decision. Appeal from district court, Midland county.

J. D. Martin, for appellant. B. G. Bidwell, for appellee.

HOBBY, J.

The object of this suit was to recover the plaintiff's homestead, and to cancel a deed thereto executed by her jointly with her husband, but the execution of which she alleged had been fraudulently procured from her by her said husband and the defendant, Hullum. The petition contained averments to the effect that the property described constituted the homestead of plaintiff and her husband, J. E. Stallings, in the town of Midland, Tex.; that her husband, who had conceived the intention to abandon her, which was known to defendant, Hullum, represented to her that the defendant would pay the sum of $2,500 for their homestead, if she would execute with him a deed thereto; that on July 5, 1886, relying upon this statement, she joined her husband in the execution of said deed to the defendant, and acknowledged the same in form of law; that she did not read the deed, nor was it read or explained to her; that the consideration recited therein was $2,000, which was false, and that in fact $1,000 was the only amount paid by the defendant to her husband; that this sum, and no more, had been agreed upon as the true consideration between the defendant and her husband, and was by them fraudulently concealed from her until after the execution and delivery of said deed, with the intent to deprive her of her homestead. She alleges that her husband, on July 8, 1886, after receiving said consideration, and disposing of her household and kitchen furniture to defendant, and the balance of their property to others, abandoned her; that, immediately after such abandonment, she, being still in possession of the homestead, ascertained that it had been sold by her husband to the defendant for $1,000, as above explained, and she refused to deliver possession to the defendant. It is alleged that this was a fraud practiced upon her by the defendant and her husband, to deprive her of her homestead, and she prayed for a cancellation of the deed. The answer denied each of the averments, charging fraud, etc., and by cross-action a recovery of the property was sought. There was a trial by jury, resulting in a verdict and judgment for the defendant. The plaintiff appeals.

The first error complained of is the court's exclusion of two letters of the plaintiff's husband offered in evidence by her, and which were objected to upon the ground of irrelevancy, and because they were written after the execution of the deed and were addressed to a third party. These letters were identified by the plaintiff as having been written by her husband. They were addressed to a third party. The first was dated at "Dallas, Texas, July 8th, 1886;" the second, at "Raleigh, N. C., July 12th, 1886." It is only necessary, we think, to say, in disposing of this assignment, that the letters, in so far as they can be considered as relevant to the issues in this case, tended to show an abandonment of the plaintiff by her husband, and that, therefore, she was authorized to sue alone. They were not admissible upon any other theory. As, however, this was not a controverted fact in the case, and one which had been abundantly shown by other proof, there was no error in excluding them.

The second assignment is that the court erred in excluding the testimony of the witness J. C. Kerr from the jury, and in instructing the jury to disregard the same. This witness testified on the trial that he "was an attorney at law and abstracter of titles. That on the afternoon of July 5, 1886, plaintiff's husband, Stallings, came to him with a blank deed, and requested him to write or prepare it. This occurred at the county clerk's office, where the witness and Roundtree, the clerk, were when Stallings came in. The latter told the witness, when he reached the blank in the form for the grantee's name, to insert the defendant's name, John A. Hullum, and $2,000 as the consideration, which he did. In a short time after this the defendant, Hullum, came to witness' office, and requested him to see if Stallings' title was good. I remarked to him, `You are paying a good price for the house.' He answered, `I am only paying a thousand dollars for it, but don't want anybody to know it.'" The witness stated that he examined the title, and later in the evening saw Stallings and defendant together. "They called me over, and asked how the title was. I said there were two deeds not accounted for, probably recorded in Tom Green county; and there were no liens on the property." The witness considered his work then completed. The following day, July 6, 1886, the defendant and Stallings came to witness' office with the deed, executed by the latter and wife, and acknowledged, "and asked me to insert in the body of the deed a list of the personal property, such as a stove, carpets, lamps, which I refused to do, as the deeds seemed to me to be complete." Witness stated further, that he made a bill of sale from Stallings to defendant of the said personal property, the former saying that any consideration might be stated, as it was all in the same trade and consideration as the former deed. On the same day, at about 11 o'clock, the witness also testified he met the...