Webster v. Mann

• Decision Date: 17 February 1881
• Docket Number: Case No. 1444.
• Citation: 56 Tex. 119
• Parties: BETSY WEBSTER v. GEORGE E. MANN ET ALS.
• Court: Texas Supreme Court

56 Tex. 119

BETSY WEBSTER

v.GEORGE E. MANN ET ALS.

Case No. 1444.

Supreme Court of Texas.

Feb. 17, 1881.

APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.

For a history of the former case to which reference is made in the opinion, see 52 Tex., 427.

Fred Barnard, for the appellant.

I. The plea of res adjudicata only applies to the same parties and the same property embraced in the judgment pleaded, and only to the matter litigated therein or which might have been litigated therein. Cassady v. Smith's Adm'rs, Tyler term, 1881; Cooke v. Burnley, 45 Tex., 98; Oldham v. McIvor, 49 Tex., 450.

II. Whether matters involved in the suit of George E. Mann v. Baker Williams and Betsy Webster, No. 9417, and the matters involved in this suit are the same, is a question of fact and not matter of demurrer. Hampton v. Drew, 4 Tex., 459;Cooke v. Burnley, 45 Tex., 98; Oldham v. McIvor, 49 Tex., 456.

III. A voidable deed may be used to recover possession of property, and the defendant is not precluded thereby, where want of parties prevented the setting aside of such deed, from bringing a proper suit to cancel such deed and recover both the title and possession of such property. Horton v. Hamilton, 20 Tex., 611;Bertrand v. Bingham, 13 Tex., 268.

III. Whether the deed to Thomas Baker was voidable was not in issue in cause No. 9417, because Thomas Baker was a necessary party in a suit to cancel a deed in his favor. The right of possession and the right of property were separate questions. Cooke v. Burnley, 45 Tex., 98; Oldham v. McIvor, 49 Tex., 456; Denison v. League, 16 Tex., 408, 409.

V. The judgment could not be conclusive as to property not involved in the suit decided. Cooke v. Burnley, 45 Tex., 98; Oldham v. McIvor, 49 Tex., 456.

VI. The witness was not disqualified at the time his deposition was taken, and a subsequent conviction would not invalidate his evidence taken before conviction. R. S., Penal Code Stat., 725-727; Lobdell v. Fowler, 33 Tex., 346; 1 Phil. on Ev., p. 14.

M. C. McLemore and Scott & Levi, for appellees.

STAYTON, ASSOCIATE JUSTICE.

There is no statement of facts in this cause, which was tried by a jury, nor is the charge of the court contained in the record, although it appears that a charge was given to the jury.

In this state of the record it must be presumed that the evidence was sufficient to sustain the verdict and judgment, which was authorized by the pleadings, and, in so far as the appellee Thomas Baker is concerned, must be held to conclusively establish that lots 8, 9, 10, 11 and 12, in block 255, in the city of Galveston, Texas, were conveyed by Betsy Webster to Thomas Baker by valid deed of date August 5, 1869.

This involves the finding that Betsy Webster executed the deed of that date for a valuable consideration, at a time when she was fully competent to contract, and under circumstances which made the transaction clearly legal.

These facts being established, it follows that the appellants, who claim as the heirs of Betsy Webster, are not, as against the appellee Thomas Baker, entitled to recover lot 12, block 255, which is one of the lots conveyed by the deed of August 5, 1869; and it only becomes necessary now to consider whether they show any ground for the reversal of the judgment as to the appellee George E. Mann.

The pleadings of the appellant show that George E. Mann claims lots Nos. 8, 9, 10 and 11, block 255, through a deed made to him by Thomas Baker; all of which, together with lot 12, in same block, was conveyed to Thomas Baker by Betsy Webster by deed of date August 5, 1869.

The pleading of the plaintiffs sought to attack the deed to Baker for the five lots on the ground that Betsy Webster was non compos mentis at the time the deed was executed; alleged alteration of the deed after the same was executed by Betsy Webster for lot 12, block 250, by the change of the number of the block and by insertion of lots 8, 9, 10 and 11.

The pleadings of plaintiff also set up in detail the proceedings had in a suit in the district court for Galveston county for lots 8, 9, and a part of lot 10, between George E. Mann as plaintiff and Betsy Webster as defendant, with the judgment thereon, which was in favor of Mann. It appeared therein that Betsy Webster set up the same matters of defense as are set up as grounds of relief in this cause, and there was an averment that said judgment was invalid, for the reason that Betsy Webster was non compos mentis when said suit was brought and at the time of its trial; that she had no guardian, and was unable to give information to her attorneys, or then to procure testimony necessary to her defense; there was a prayer that the judgment in favor of Mann against Webster be annulled.

To the petition the defendant Mann filed a special demurrer, by which he set up the bar of the judgment rendered in his favor against Webster, which upon hearing was sustained by the court. Mann also pleaded the judgment rendered in his favor in bar of this suit, together with other defenses.

The record shows...