White v. White

• Decision Date: 19 May 1906
• Citation: 95 S.W. 733
• Parties: WHITE et al. v. WHITE.
• Court: Texas Court of Appeals

95 S.W. 733

WHITE et al. v. WHITE.

Court of Civil Appeals of Texas.

May 19, 1906.

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

Action by John White against J. T. White and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

The plaintiff, John White, instituted this suit against the defendants, J. T. White, W. H. Coble and wife, Tennie Coble, J. W. Dial and his wife, S. J. Dial, in the district court of Johnson county, Tex., on the 21st day of September, 1904, and in his second amended original petition, upon which this case was tried, alleged that he was the father of one N. M. White, deceased, and that the said N. M. White, deceased, at his death owned an undivided one-half interest in 145 acres of land situated in Johnson county, Tex., giving a description of said land by field notes; that N. M. White, his son, departed this life intestate in Johnson county, Tex., without any wife or children surviving him, and that the plaintiff became the owner of said undivided one-half interest in the 145 acres of land; that is, the plaintiff was entitled to and is the owner of an undivided one-fourth interest in 145 acres of land. Plaintiff further avers that the defendants procured three deeds from him to his interest in the above land by false and fraudulent representations; that the plaintiff on and prior to the 29th day of September, 1902, resided in the state of Tennessee near the boundary line in said state and the state of Alabama; that on said day and date the defendant J. T. White came to the plaintiff in the state of Alabama for the purpose of procuring a deed from the plaintiff for all of the defendants to his interest in said land, and procured said deed by false and fraudulent concealments of facts unknown to the plaintiff; that the plaintiff executed said deed to the defendant, which was procured by said false representations made by the said J. T. White on the 29th day of September, 1902, and that on the 9th day of October, 1902, the plaintiff executed another deed to his interest in said land to the defendant J. T, White, under said false and fraudulent representations, concealments, etc., and that the plaintiff, on the 28th day of November, 1902, executed still another and third deed to his interest in said land to the defendant J. T. White, on said false and fraudulent representations and concealments. The only false representations and fraud alleged by the plaintiff, which was practiced upon him by the said J. T. White, is contained in the sixth and seventh paragraphs of the plaintiff's amended petition, which is as follows: Plaintiff would further aver that the defendant J. T. White, in accordance with said agreement mentioned above, made a trip to the state of Tennessee for the purpose of seeing the plaintiff, and that in order to secure said deed as mentioned above the defendant J. T. White falsely and fraudulently represented to the plaintiff that the estate of his son, N. M. White, deceased, was in a very bad condition financially, or insolvent, and that he desired to secure by deed from the plaintiff his interest in said estate, in order that the debts of the deceased brother and plaintiff's son might be settled up and discharged. He further represented to the plaintiff that he had been put to great expense, in the sum of $700 or $800, for burial expenses and other incidents thereto, and that it would practically take the whole of said estate to discharge said debts. Plaintiff, having no knowledge of the condition of said estate or value of the same or the debts against said estate, believing the said representations to be true, signed and executed the first deed as mentioned above, but said representations were falsely and fraudulently made, and a true condition of said estate was fraudulently concealed from your petitioner with the intent and desire to cheat and defraud your petitioner out of his said land or inheritance as mentioned above, and that the defendant J. T. White well knew the same was falsely and fraudulently made, and that the said estate was of the value of $3,500 or $4,000, and that the debts against said estate would not exceed $700 or $800. That the defendant J. T. White further represented to plaintiff that the said land or inheritance was poor sandy land and of very little value, and concealed the true nature and value of said land from the plaintiff; that the plaintiff had never been to the state of Texas, and knew nothing of the value and nature of Texas land, nor of this particular land in question, but relying upon the representations of this defendant in regard to the same, which he believed to be true, the plaintiff did sign and execute the first deed as mentioned above; but said representations were fraudulent and false, and made with the intent to deceive the plaintiff of the value of said land, and to secure a deed from the plaintiff to his interest in said land without paying him the value thereof. The plaintiff, in the eighth paragraph of his amended petition, alleges as follows: "That the defendant, before leaving the state of Alabama to return to his home in Texas, treated your petitioner in a very kindly manner, asking him to come to Texas and make his home with this defendant, and promised your petitioner that he would care for and support him and furnish him with a horse and buggy whenever he should want the same, but the plaintiff has since learned that the said promises or kindly treatment and support were false and fraudulently made for the purpose of overreaching and having undue influence over your petitioner." The plaintiff further alleges that, after he executed the first deed to all of the defendants, the defendant J. T. White sent another deed to the land, writing to him that the field notes in the first deed were inaccurate, and wishing him to execute a second deed in order to correct the inaccuracies in the field notes of the first deed; that he executed the second deed; that the defendant J. T. White sent the plaintiff his railroad fare to come out to Texas, and that he came out to Texas, and that after he came to Johnson county, Tex., the said J. T. White represented to him that the second deed was incorrect, as some of the field notes and callings had been left out of the deed, and requested the plaintiff to execute another deed. The plaintiff alleges that he did not know that the representations made to him in Alabama by the said J. T. White were false and fraudulent, and that he executed the last two deeds. Upon the above allegations the plaintiff prays that all three of the deeds be canceled, annulled, and discharged of record, and that the title of the plaintiff in and to said land be established and confirmed as against all of the defendants and all persons, if any, claiming through or under them for partition and writ of possession and interest, cost of suit, and such other and further relief, special and general, in law or in equity, as he may be entitled to in the case. Defendants answered, denying specifically the fraud and concealment charged in the petition, and answered at great length, setting out what they alleged were the facts in reference to the making of the three deeds by plaintiff, ratification of his first deed, after he had full knowledge of all the facts, and J. W. Dial set up that he had acquired the title to all the land in controversy for value without knowledge of plaintiff's claim and after he had testified in a proceeding contesting an application for administration on the estate of N. M. White, deceased, in the county court of Johnson county. The pleadings of the defendants are lengthy, and it is unnecessary to state the same. A trial with the aid of a jury resulted in a verdict and judgment for plaintiff, and defendants have appealed.

W. H. Spinks and S. C. Padelford, for appellants. Kugle & Warren, for appellee.

BOOKHOUT, J. ...