Uecker v. Zuercher

• Citation: 118 S.W. 149
• Parties: UECKER v. ZUERCHER et al.<SMALL><SUP>†</SUP></SMALL>
• Decision Date: 03 March 1909
• Court: Court of Appeals of Texas

118 S.W. 149

UECKER v. ZUERCHER et al.^†

Court of Civil Appeals of Texas.

March 3, 1909.

Rehearing Denied March 31, 1909.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by Anna Uecker against John Zuercher and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Guinn & McNeill, for appellant. Salliway & McAskill, for appellees.

JAMES, C. J.

The first amended original petition was by Anna Uecker to cancel a deed, executed by her on May 16, 1906, to the appellees, reciting the consideration of $200 cash and a vendor's lien note for $2,000, upon the ground that at the time she executed it she was incompetent to do so by reason of the weakness of her mind to comprehend and understand the nature of the transaction or the effect of the instrument. This pleading alleged, also, that the consideration received by her was insufficient and inadequate, that she signed it under a misapprehension of its contents, brought about by the fraud and deception of defendants, and that they also misrepresented to her the force and effect of said instrument and its consideration. The answer denied any mental weakness or incompetency on her part, or fraud on the defendants' part. That, in addition to the consideration stated in the deed, there was a further consideration for the land; same being set out in a contract in writing of same date reciting a small consideration, wherein defendants agreed to support, maintain, and keep the said Anna Uecker during her life. That the agreement set out in the written contract, and the further oral agreement that they would move on the ranch and give her a home there, was a part of the consideration to be received by her for the land. Defendants further pleaded that plaintiff had ratified the deed by various acts, such as living with the defendants and accepting interest payments on the $2,000 note. There were supplemental pleadings, but the above is the statement of the pleadings given in appellant's brief and adopted as correct by appellees. The case was submitted by special issues, with verdict for defendants.

It appears that the amended original petition was filed by Anna Uecker. It appears further that Herman Harms, a son of plaintiff, subsequently filed a petition suggesting the mental incapacity of Anna Uecker, praying to be permitted to come in and prosecute the action in her name and behalf as next friend. The court appears to have allowed this to be done, as the decree shows. In his said petition Harms alleged, among other things: "That on the ____ day of May, 1907, she (Anna Uecker) was formally adjudged to be of unsound mind by the probate court of Bexar county, Tex., and this petitioner was duly appointed and confirmed by said court as guardian of her person and estate, which action of the court the said defendants Zuerchers contested, and by writ of certiorari have appealed said cause for revision and correction and filed bond superseding said judgment of the probate court, which appeal is now pending." This allegation was stricken out on demurrer, and this is the complaint of the first assignment of error. Inasmuch as it appeared from the allegation that the order of the probate court had been vacated by the certiorari proceeding, and the appointment was not in effect, there was no error in the ruling. Railway v. Jackson Bros., 85 Tex. 605, 22 S. W. 1030.

The second assignment complains that the court refused to strike out, upon an exception, the fourth clause of the third amended answer. The first proposition is overruled for the reason that it appears that the allegation claimed to be omitted from the clause is alleged elsewhere in the pleading. The second proposition is this: "When a person is insane at the time she enters into a contract, subsequent acts supposed to be in ratification of the original contract cannot be shown, without first alleging and proving that the insane party has been restored to reason at the time of such acts of ratification." Inasmuch as the issue of ratification was not submitted, there is nothing substantial or pertinent in the proposition. Besides this, the petition sought to set aside the deed also on the ground of imposition and fraud (proceeding upon the theory of her sanity), and acts of ratification on her part would not necessarily have reference to her being insane.

The third assignment complains of the overruling of an exception to this clause of the answer: "And for further answer these defendants state: That they did not wrongfully go into possession of this property, but say that John Zuercher and Mrs. Anna Uecker, the mother of his wife, peacefully went into possession of same because he was the owner of same, and because of an agreement with his mother-in-law that he was to move thereon and give her a home upon the ranch; that he had agreed to do this, and she asked and requested him to move thereon; and that she wanted, in her old age, to return to the ranch where she had spent nearly all her life and remain the balance of her life." The exception to this was that it did not show when such agreement was made, or the consideration therefor, that it was immaterial and irrelevant, and attempts to inject into the case an immaterial issue, that it was argumentative, and a pleading of the evidence. It should be borne in mind that this answer contained pleading of a ratification of the sale. True, this feature was afterwards eliminated by not submitting such matter to the jury, but at the time this exception was presented the allegation contained in the clause did not appear to be irrelevant, immaterial, and foreign to the issues made by the pleadings. It is also contended that this clause should have shown the time such agreement was made, and the consideration therefor, in order that its connection with the main transaction may be seen and its relevancy and materiality arrived at. We find that elsewhere in the answer it was alleged that plaintiff moved with John Zuercher "to the ranch and has made her home there in accordance with the agreement, and getting her rights under a valid agreement, forming a consideration for the conveyance." It is evident that the agreement referred to was the one alleged as being a part of the consideration of the deed.

The fourth assignment relates to another exception, the nature of which is disclosed by appellant's proposition: "The tenth paragraph of defendants' answer sets up a consideration for the land in addition to that named in the written instrument executed by the parties at the time, and inconsistent and contradictory of the terms of such written instrument, and for that reason should have been stricken out." Appellant is evidently contending that no consideration for the land could be shown except that expressed in the deed of conveyance. Inadequacy of consideration is alleged by plaintiff as a ground or circumstance connected with the relief asked, and in such a case we know of no rule denying defendant the right to plead and prove the real consideration.

The fifth is that the court erred in sustaining objection to the question propounded to Harms: "State how she is with regard to remembering and being influenced by parties." He would have answered that she was easily influenced. The objection was that there were no facts offered to show that she was easily influenced. The objection was not a good one, as the answer would have been the statement of a fact. The evidence was perhaps admissible, but we have come to the conclusion that it is...