Stephens v. Hewett

• Decision Date: 20 December 1899
• Citation: 54 S.W. 301
• Parties: STEPHENS et al. v. HEWETT et al.
• Court: Texas Court of Appeals

54 S.W. 301

STEPHENS et al. v. HEWETT et al.

Court of Civil Appeals of Texas.

December 20, 1899.

Error from district court, Bell county; Marshall Surratt, Judge.

Action by Susie Hewett and others against S. A. Stephens and others. From a judgment for plaintiffs, defendants bring error. Reversed.

A. M. Monteith, for plaintiffs in error. A L. Curtis, for defendants in error.

KEY, J.

Mrs. Susie Hewett, joined by her husband, A. J. Hewett, brought this suit against S. A. and W. W. Stephens to set aside a former judgment rendered by the same court, and to recover a one-sixth interest in 200 acres of land, rent for its use, and for partition. There was a nonjury trial, resulting in a decree establishing the rights of the plaintiff as alleged in her petition, awarding to her $100 for rent, and appointing commissioners to partition the land. The defendants have brought the case to this court by writ of error.

No conclusions of law and fact were filed by the trial judge. There is but little conflict in the testimony, and the essential facts are as follows: It was agreed that Mrs. Mary Jane Midkiff, the plaintiff's mother, who died in 1876, was common source of title; the land being her separate property at the time of her death. In 1878 C. S. Midkiff, the surviving husband of Mary Jane Midkiff, was appointed by the county court of Bell county, and qualified, as guardian of the estates of his minor children, including Susie Midkiff, now Mrs. Hewett. In 1881 C. S. Midkiff and his second wife, Nancy E. Midkiff, conveyed 200 acres of land, including the land in controversy, to W. W. and J. H. Stephens. In 1885 J. H. Stephens conveyed his half in trust to W. W. Stephens, and in 1888 W. W. Stephens conveyed the entire tract to his wife, S. A. Stephens. These deeds were duly recorded, and the appellants showed such possession of the land as would rest title in them under the 5 and 10 years' statute of limitations, had it not been shown that Mrs. Hewett, the appellee, was a minor up to the time of her marriage, in April, 1897. January 23, 1888, C. S. Midkiff having waived his right to the guardianship, the county court of Bell county granted an application made by J. C. Midkiff to be appointed guardian of the estate of Susie Midkiff, and fixed his bond at $2,000; and on May 15, 1890, said court granted a second application made by J. C. Midkiff for such guardianship, and fixed his bond at $1,500. He failed to give any bond, to take the oath, and to return an inventory; and it was not shown that the county court ever recognized or treated him as guardian of the minor's estate. In 1892 J. C. Midkiff and others brought an action in the same court in which this suit originated, and against the same defendants, to recover the 200 acres of land, of which the land in controversy is part. The petition in that case purports to make Susie Midkiff a party plaintiff, "by her guardian, J. C. Midkiff." That case was tried July 11, 1893, and resulted in a judgment in favor of the defendants and against all of the plaintiffs for the 200 acres of land, which judgment has never been vacated or set aside. It shows that it was based upon a verdict sustaining the defendants' pleas of 5 and 10 years' limitations; and the record in that case, which was put in evidence in this case, shows that the court refused to allow proof of Susie Midkiff's minority, because there was no pleading authorizing such proof, which ruling was sustained on appeal. Midkiff v. Stephens (Tex. Civ. App.) 29 S. W. 55. At the trial of the second case, the appeal in which is now under consideration, it was shown that Susie Midkiff never authorized J. C. Midkiff, or any one else, to make her a party to the former suit; and she was not aware of the fact that any one had attempted to make her a party to it until after the judgment was rendered, and an appeal taken, when she was consulted by E. L. Murrell, who had been appointed and qualified as her guardian in 1894, in reference to a proposition to compromise the case. It was not shown that at that time or any other time her rights in the property and the nature and condition of the suit were explained to her, and that she, with a full understanding of the matter, ratified...