Tippett v. Brooks

• Decision Date: 11 January 1902
• Parties: TIPPETT et al. v. BROOKS.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

67 S.W. 512

TIPPETT et al. v. BROOKS.¹

Court of Civil Appeals of Texas.

January 11, 1902.

Appeal from district court, Hunt county; H. C. Connor, Judge.

Action by Josie Tippett and husband against M. M. Brooks. Judgment for defendant. Plaintiffs appeal. Affirmed.

J. G. Matthews, for appellants. L. A. Clark and Geo. S. Perkins, for appellee.

RAINEY, C. J.

This suit was brought by appellants to cancel a deed to certain real estate executed by Josie Tippett and her former husband, N. W. Heron, to M. M. Brooks, appellee. The grounds relied on for cancellation are, in effect: (1) That the land was her separate property, and at the time the deed was executed her husband N. W. Heron was a minor, and incapable of legally consenting to the conveyance, though joining her therein; (2) that at the time of the execution of said conveyance said Brooks was her counsel, representing her in seeking to recover the possession of said land, and undue advantage taken of her; (3) that the deed was not properly explained to her at the time by the notary taking her acknowledgment. Defendant pleaded the general issue. The case was tried before the court without a jury, and judgment rendered against appellants, from which this appeal is prosecuted.

Conclusions of Fact.

The conclusions of fact of the trial judge are supported by the evidence, and they are adopted as the conclusions of this court, to wit:

"On the 29th day of January, 1898, and prior thereto, the plaintiff Josie Tippett was the owner of the land in controversy, subject, however, to a life estate of her mother, Rachel Morgan, to one-third of the land. On said date the plaintiff Josie Tippett, joined by her first husband, N. W. Heron, executed and delivered to the defendant, M. M. Brooks, a general warranty deed to the land in controversy, reciting as a consideration (which was in fact the true consideration) an attorney's fee of $150, one pair of mules, $125, and a note secured by a vendor's lien on the land for $630; said note payable to the husband of Josie Tippett, and recited that it was given as a part of the purchase money for 68 acres of land (the land in controversy) deeded by N. W. Heron, plaintiff's then husband, to M. M. Brooks. Said deed is in regular form, and shows that Josie Tippett's statutory separate acknowledgment was taken by C. E. Mead, a notary public. Said deed was also fully explained to Josie Tippett by the notary before she signed the same, and the $630 note was delivered to her at the time she signed the deed, but no one explained to her to whom the note was payable. The price paid by defendant for the land was the fair market value for the same, and the defendant bought same at the request of Josie Tippett and her first husband; her husband doing most of the talking about the trade. At the time Josie Tippett and her husband executed the deed to defendant they were living on the defendant's place, and the first talk of the sale grew out of the relation of the defendant's employment by N. W. Heron (Josie Tippett's first husband) to get possession of the land from Rachel Morgan (Josie's mother) and her husband, J. C. Morgan, who were in possession of the land, claiming an interest therein; and in pursuance of said employment, and defendant acting under same, there was perfected a compromise, in which Rachel Morgan and her husband agreed to take a life estate to a certain one-third of the land, Josie taking the remainder. Deeds were prepared in accordance with said agreement, but were never executed, because, before they were executed, defendant bought the interest of Morgan and wife, as well as that of the plaintiff and her husband. When Josie Tippett and her first husband, N. W. Heron, signed the deed, Josie was sixteen years old, and her husband was seventeen, but a man in size, and claimed to be nineteen; and after the execution of the deed, and before he was nineteen, defendant, as attorney for N. W. Heron, filed an application to remove his (Heron's) disabilities, alleging that he (Heron) owned the land in controversy, and that he desired to make a deed to the same. Since the execution of the deed, and before the filing of this suit, N. W. Heron died, and Josie married her present husband, and plaintiff, D. C. Tippett. N. W. Heron died leaving plaintiff the pair of mules mentioned in the deed and $90, the only portion of the consideration for said deed remaining; they having squandered the balance in a manner unknown. Josie Tippett and her first husband N. W. Heron, transferred the note given by defendant for the land to N. W. Heron's father by written memoranda on the back thereof, signed by both Josie and her husband; and old man Heron transferred the same to the Greenville National Bank, where and to whom defendant paid it. The `$150 law fee' mentioned in the deed was owing by plaintiff Josie and her then husband, N. W. Heron, to defendant for legal services performed by defendant in getting possession for them of two-thirds of the land. Rachel Morgan had been married to one Giddings, who was dead, and plaintiff Josie Tippett was their only child. Giddings died leaving nothing but the land in controversy in this suit; it being his separate property, but never having been used as a homestead. In fact, there were no improvements on it whatever. After his death his wife married Morgan, and they moved upon the land, erected a house thereon, and put some fifteen acres...