West v. West

• Decision Date: 16 January 1895
• Citation: 29 S.W. 242
• Parties: WEST et al. v. WEST.
• Court: Texas Court of Appeals

29 S.W. 242

WEST et al. v. WEST.

Court of Civil Appeals of Texas.

January 16, 1895.

Appeal from district court, Gonzales county; T. H. Spooner, Judge.

Action by Mary L. West, for herself and as next friend of her daughter, against Jeff C. West. From a judgment dismissing the petition upon special exceptions by defendant, plaintiff appeals. Reversed.

The appellant (plaintiff below) brought this suit for herself and as next friend for her minor daughter, Eva, for the cancellation of a certain deed executed by her to the appellee. The allegations in her petition are substantially as follows. That she is the surviving wife of L. N. West, deceased; and that Eva, who was born after the death of her father, is their only child. That, upon his death, her husband left an estate, which was insolvent, worth about $10,000. That, before his marriage to her, L. N. West made his will, bequeathing all property of which he might be possessed, in which no provision was made for either her or Eva, of which will W. D. Finney and Eugene West were appointed executors. That, shortly after the death of the testator, his will was, in April, 1890, duly probated in the county court of Gonzales county. That the executors named therein duly qualified, and that the estate is still pending and unsettled in said court. That on April 13, 1891, without the consent of plaintiff, or of Eva, or of any person authorized by them, the county court of Gonzales county proceeded to set aside as a homestead to herself and child a certain lot in the village of Leesville, Gonzales county, together with the improvements thereon, which order is as follows: "Estate of L. N. West, decd. No. 1,214. Tuesday, April 14th, 1891. This day, Monday, April 13th, 1891, came on to be heard the application of Mrs. ____ West, surviving widow of L. N. West, decd., praying that the homestead of herself and her said husband upon which they lived at the time of the death of the said L. N. West, situated in the town of Leesville, Gonzales county, Texas, be set aside to her for her use and the use of her said minor child, L. N. West, Jr. [meaning, as plaintiffs believe and allege, said Eva West], now about one year old, which application having been heard and fully understood, the same is in all things granted. And the said homestead, being the residence of L. N. West, decd., at the date of his death, situated in the town of Leesville, Texas, being lots Nos. ____ in block containing about two acres of land, be, and the same is hereby, set apart to the said Mrs. ____ West, for her use and the use of her minor child, said West, to be used and controlled by them in all things as allowed by law." That the premises so attempted to be set aside as a homestead were the community property of her husband and his first wife, and therefore subject to partition between the estate of L. N. West and his children by his first wife, as the heirs of their mother. That on July 26, 1891, at the solicitation of defendant, Jeff C. West (appellee), she executed to him a deed conveying her interest in the premises described in said order, which expressed a consideration of $100, but that, in fact, no consideration was ever paid, and the deed was wholly without consideration. That her execution of the deed was procured by false and fraudulent representations, which were known at the time by defendant to be false, but were believed and relied upon by her, and induced plaintiff to execute said deed. Such representations were: That she was entitled to only one-half interest in a homestead, and that the children of her husband by a former wife were entitled to the other half, and that he intended purchasing the interest of the other heirs therein; that plaintiff's interest in the homestead was not worth over $50; that at her death her interest would go to the creditors of L. N. West's estate; and that, in the event she married again, she would lose all right, title, and interest in the premises. That he promised he would always care for and provide for Eva as long as plaintiff resided near him, and would look after the child's interest as only an elder brother could, and that, after plaintiff's death, he would take charge of and fully provide for Eva; and that he professed great love for plaintiff and her child, and promised plaintiff $100 for her interest in the premises for Eva's benefit. That such representations were made for the purpose of overreaching plaintiffs, and defrauding them out of their right to any homestead or exemptions in lieu thereof out of L. N. West's estate, and of himself acquiring valuable property from plaintiffs without consideration. That defendant never executed any note for the payment of the purchase money, and has never paid anything for the property. That although, since the deed was executed, plaintiff's had lived in defendant's neighborhood, he had wholly failed and refused to care or provide for or do anything for Eva, and still so fails and refuses to do, and never intended to do so at the time he promised. That defendant is in possession of the premises, holding and using the same as his own, and claiming title thereto under said deed; and that he refuses to cancel the deed, or restore the premises to plaintiffs, though often demanded, to their damage $2,500. That there is no other property belonging to the estate of her deceased husband suitable for a homestead. That being the community property of L. N. West and his first wife, and subject to partition between his estate and the children by the first marriage, the premises in controversy cannot be legally set aside as a homestead for plaintiffs. That claims exceeding $15,000 against the estate of her deceased husband have been allowed by the executor, and approved by the court. That at the time the homestead was set aside to plaintiffs, and when the deed was made to defendant, she did not know whether or not the premises were community property of deceased and his first wife, nor did she know by what title it was held. That she never had any control or possession of the property after the death of her husband. That at the time of his death, on account of ill health, she went to her brother's for care and attention, where Eva was born. That during confinement the premises were rented, and that after her recovery, about a month after her husband's death, she found defendant in possession and control of the premises, renting and using the same. That she demanded possession thereof, which defendant refused to give, but retained possession himself until she executed the deed to him. That she ascertained subsequent to the execution of the deed the fact of the community interest in the premises of the estate of L. N. West's first wife, and of its being subject to partition between the children of the first marriage, and her husband's estate, and that the property could not be equitably partitioned in kind among the several owners. That claims exceeding $15,000 against her husband's estate had been allowed by the executor, and approved by the court. That having ascertained that the premises was community property, as before stated, the plaintiff Mary L. West, on August 29, 1891, filed in said county court her application to have the order setting aside the premises as a homestead annulled and vacated, and praying for an allowance in lieu of a homestead, out of the estate of her husband. That the application is pending and undetermined in the district court of Gonzales county, on certiorari from the county court. But that certain creditors of the estate whose claims have been established are contesting the application, and are urging, among other reasons, that she has conveyed her interest in the premises, and received the money therefor. It is then alleged: "That, if the deed should be canceled, no injury would or could result to defendant, because he has paid nothing for Mary's interest in the premises, and he would still own his interest therein, as heir of his deceased mother. That, if the deed be canceled, the one-half interest in the property belonging to the estate, which they allege to be worth $1,250, can be returned to the...