Whalen v. Richardson

• Decision Date: 22 January 1962
• Docket Number: No. 7090,7090
• Citation: 353 S.W.2d 941
• Parties: Ruble WHALEN et vir, A. D. Whalen, Appellants, v. E. K. RICHARDSON et al., Appellees.
• Court: Texas Court of Appeals

Page 941

353 S.W.2d 941

Ruble WHALEN et vir, A. D. Whalen, Appellants, v. E. K. RICHARDSON et al., Appellees.

No. 7090.

Court of Civil Appeals of Texas, Amarillo.

Jan. 22, 1962.

Wicks & Wicks, Ralls, for appellants.

T. Wesley Hook, Alvarado, Key, Carr, Carr & Clark, lubbock, for appellees.

NORTHCUTT, Justice.

In this case appellant Rubie Whalen, joined pro forma by her husband, A. D. Whalen, sued appellees, E. K. Richardson, appellant's father, W. H. Richardson, and John W. Richardson, who are appellant's two step-brothers, and Jett Cowden, an alleged lien holder, in a trespass to try title to recover title and possession of 320 acres of land situated in Crosby County, Texas.

The case was tried to a jury, but at the close of the evidence, the trial court peremptorily instructed the jury to return a verdict in favor of the appellees and against the appellants. Judgment was rendered declaring appellee, E. K. Richardson, to be the owner in fee simple of the real estate involved in this suit and declaring appellee, Cowden, to be a lawful lien holder upon a portion of said real estate. Said judgment further declaring that appellees, John W. Richardson and W. H. Richardson and wife, Dama Richardson, should take nothing. From that judgment appellants perfected this appeal.

Since Mr. Richardson and Mr. and Mrs. Whalen are the interested parties herein, Mr. and Mrs. Whalen will hereinafter be referred to as appellants and Mr. Richardson as appellee.

In December, 1912 E. K. Richardson and Martha Alabama Leatherwood were married. Prior to this marriage Martha Alabama Leatherwood inherited from her father's estate the section of land here in question as her separate property. There were two daughters born to Mr. and Mrs Richardson, one died in infancy, and Mrs. Whalen was the only surviving child of this marriage. Mrs. Richardson died in August, 1946, intestate. Mrs. Whalen was formerly married to Thomas C. Ratheal and he died December 7, 1940. Mrs. Ratheal, together with her daughters, returned to the home of Mr. and Mrs. Richardson and resided there until the death of her mother. Mrs. Ratheal continued to live with her father until she and Mr. Whalen were married in December, 1946.

On July 19, 1947, Mr. and Mrs. Whalen executed an instrument releasing, relinquishing and quit-claiming unto E. K. Richardson, Mrs. Whalen's father, all their right, title, interest, and estate in and to the estate of Alabama Richardson, Mrs. Whalen's mother, both real and personal, which Mrs. Whalen may or might have in and to said estate by virtue of being the daughter of Alabama Richardson, except the 200-acre homestead. Said instrument further provided that Mrs. Whalen, joined by her husband, accepted the 200 acres of land together with all the improvements situated thereon as her full share in and to the estate of her mother. Prior to the death of Mrs. Richardson, she and Mr. Richardson had built a nice, brick home upon the 200 acres in question. This same instrument gave to Mr. Richardson the remaining 440 acrs of said section.

On January 24, 1948 in Cause No. 2082 in the District Court of Crosby County, Texas, Mrs. Whalen filed suit against her father, and others, for the title and possession of the real estate that she had transferred to her father on July 19, 1947. On March 5, 1948, Mr. Richardson, who had remarried, and his wife, Elta Richardson, and Mr. and Mrs. Whalen entered into a partition deed stating that E. K. Richardson and Rubie Whalen were the sole and only heirs of Martha Alabama Richardson, and that they held in common the section of land in question, and by said partition deed Mrs. Whalen received 320 acres of said section which included all improvements, and Mr. Richardson received the remaining 320 acres.

On April 7, 1948, Mr. and Mrs. Whalen filed in said Cause No. 2082 the following motion:

'Now comes the plaintiffs, Rubie Whalen, et vir, A. D. Whalen, and respectfully show to the court that all matters in dispute in the above entitled and numbered cause have been satisfactorily settled between the plaintiffs and defendants as evidenced by certain instruments of writing appearing in the office of the county clerk of Crosby County, Texas, filed since January 24, 1948, the date when said suit was filed.'

'The plaintiffs therefore say that they will not further prosecute said suit and pray the court that the same be dismissed at the cost of the plaintiff.'

The instrument here referred to as being filed since January 24, 1948 was the partition deed.

As requested in said motion said Cause No. 2082 was dismissed on April 7, 1948 at the cost of Mr. and Mrs. Whalen. On July 20, 1959, Mr. and Mrs. Whalen brought this suit to recover title and possession of the 320 acres deeded to Mr. Richardson in the partition deed dated March 5, 1948. In the partition deed Mr. and Mrs. Whalen bound themselves and their heirs to warrant and forever defend all and singular said premises unto E. K. Richardson, and E. K. Richardson gave the same warranty to Mr. and Mrs. Whalen as to the other 320 acres.

By appellants' first and second points of error it is contended the court erred in granting judgment for the appellees since there was sufficient evidence to be submitted to the jury to...