White v. Holland, (No. 9403.)

• Decision Date: 04 December 1920
• Docket Number: (No. 9403.)
• Citation: 229 S.W. 611
• Parties: WHITE v. HOLLAND et al.
• Court: Texas Court of Appeals

229 S.W. 611

WHITE v. HOLLAND et al.

(No. 9403.)

Court of Civil Appeals of Texas. Ft. Worth.

December 4, 1920.

Rehearing Denied January 15, 1921.

Appeal from District Court, Parker County; F. O. M. Kinsey, Judge.

Action by W. F. White against G. A. Holland, guardian of Mrs. Sallie V. Sikes, and J. B. Sikes. Judgment for plaintiff against last-named defendant and in favor of first-named defendant against plaintiff, and the plaintiff appeals. Judgment as between plaintiff and first-named defendant reversed and remanded, and affirmed as between plaintiff and last-named defendant.

T. F. Temple, of Weatherford, and Payne & Morris, of Fort Worth, for appellant.

Hood & Shadle, of Weatherford, for appellees.

CONNER, C. J.

W. F. White, appellant, and hereafter referred to as plaintiff, instituted this suit on the 12th day of July, 1918, against G. A. Holland, as guardian of Mrs. Sallie V. Sikes, alleged to be a person of unsound mind, to recover the amount of the principal, interest and attorney's fees due upon a promissory note for the sum of $3,260, executed May 25, 1914, and for a foreclosure of a certain deed of trust on certain real estate, the separate property of the said Mrs. Sallie V. Sikes, executed contemporaneously with the note and to secure the same.

The defendant G. A. Holland answered, among other things, to the effect that Mrs. Sallie V. Sikes received no benefit whatsoever from the note or deed of trust, and that at the time she signed the note and executed the deed of trust, and ever since said time, she was of unsound mind and did not know what she was doing, and he prayed that Mrs. Sikes be discharged and that the cloud thus cast upon the title to the separate property of Mrs. Sikes, upon which the deed of trust rested, might be removed.

By a supplemental petition the plaintiff denied the insanity of Mrs. Sikes, and further pleaded especially to the effect that long after the execution of the instruments declared upon Mrs. Sikes entered into another contract with her husband, J. B. Sikes, in settlement of their estate, and that pursuant thereto, in a suit instituted by her against J. B. Sikes for divorce, she obtained a decree in accord with the terms of the contract of settlement, and that in the contract and decree the indebtedness declared upon by the plaintiff was expressly recognized as valid and based upon a valuable consideration; that at the time of such contract and decree Mrs. Sikes was sane, and hence was estopped from setting up her incapacity to make the original contract.

The case was tried before a jury, to which was submitted in a general charge the single issue of whether Sallie V. Sikes was insane and incapable of contracting, within the meaning of the court's charge, at the time of the execution of the note and trust deed described in plaintiff's petition. The jury's verdict was in the form prescribed by the court in event the jury should find in the defendant Holland's favor the affirmative of the issue submitted. The court thereupon entered a judgment in favor of the plaintiff as against J. B. Sikes and against the plaintiff and in favor of G. A. Holland as guardian, and the plaintiff has appealed.

Appellant first assigns as error the refusal of the court to give a specially requested peremptory instruction in his favor. It is insisted in support of this charge that, regardless of the question of Mrs. Sikes' insanity at the time of the execution of the note and trust deed declared upon, these instruments were ratified by her as a matter of law by the judgment in her favor in the divorce suit later instituted by her. The evidence shows that Mrs. Sikes instituted her suit against J. B. Sikes for divorce, on the ground of cruelty rendering their longer living together insupportable, on the 10th day of February, 1917, and that in that suit she declared upon a contract of settlement theretofore entered into between herself and husband disposing of their marital rights in property. Because of their length, we will not set out the judgment of the contract of settlement, which is embodied in the judgment, but think it sufficient to say that both the contract and judgment in their several recitations tend strongly to show a recognition of the existence and validity of the debt declared upon in this suit. But the defendant J. B. Sikes in the divorce suit answered, among other things, that Mrs. Sikes at the time was insane. No determination of that issue, however, appears to have been made in the divorce suit; on the contrary, on the trial, from which this appeal has been taken, evidence was offered in behalf of the guardian, Holland, to the effect that Mrs. Sikes was insane at the time of the entering of the decree of divorce. If so, it cannot be said that Mrs. Sikes or those in privity with her would be precluded, by reason of the judgment, from asserting the alleged want of capacity on the part of Mrs. Sikes to execute the note or trust deed, for a ratification of a voidable act, to be effective, must be with the conscious knowledge of a mind capable of understanding the effect of the ratifying act. We must therefore overrule appellant's first assignment of error.

By a further assignment, however, appellant insists that the court erred in failing to submit to the jury the issue of ratification. Objection was made to the court's charge on that ground, and we think the objection must be sustained. The plaintiff, among other things, offered in evidence a judgment of a court of competent jurisdiction, dated January 23, 1917, in a proceeding instituted for the purpose of testing Mrs. Sikes' sanity to the effect that she was not then insane. Presumably, and until it be otherwise shown, she continued to be sane until the institution of her suit for divorce, which occurred within a short time thereafter. In the divorce suit, as before stated, as a foundation for part of the relief sought she declared upon a contract of settlement between herself and husband so expressed as to at least tend to show that she recognized the existence and the validity of the debt sued upon in this suit. Moreover, there is no evidence that Mrs. Sikes at any time from the date of the execution of the note and trust deed, on August 25, 1914, ever in any way repudiated or disaffirmed the same. This does not appear to have been done until so done by the guardian in his answer, filed October 14, 1919, more than five years after the execution of the original instruments. The evidence below tended to show that at all events Mrs. Sikes had lucid intervals, and as a general rule one entitled to disaffirm an act voidable because of an incapacity to perform it by reason of minority or a want of disposing mind...