Wilkins v. Abercrombie

• Decision Date: 30 April 1942
• Docket Number: No. 2432.,2432.
• Parties: WILKINS v. ABERCROMBIE
• Court: Texas Court of Appeals

162 S.W.2d 445

WILKINS v. ABERCROMBIE

No. 2432.

Court of Civil Appeals of Texas. Waco.

April 30, 1942.

Rehearing Denied June 4, 1942.

Appeal from District Court, McLennan County; Giles P. Lester, Judge.

Suit in trespass to try title by George W. Abercrombie against Alice Wilkins and others. From an adverse judgment, Alice Wilkins appeals.

Affirmed.

R. L. Henderson, of Waco, for appellant.

W. L. Eason, of Waco, for appellee.

RICE, Chief Justice.

This is a suit brought by George W. Abercrombie, appellee, against Alice Wilkins, appellant, and others, in trespass to try title of a tract of 2.4 acres of land situate in McLennan county, Texas. Alice Wilkins alone appealed from an adverse judgment rendered on the answers of the jury to special issues submitted.

Appellee asserted title in himself to the 2.4 acres, as a part of a 100-acre tract conveyed to him by regular chain of title emanating from appellant, through her former deed to her son conveying the 100-acre tract.

Appellant answered by plea of not guilty; the general denial; and specially pleaded title in herself to the 100-acre tract under the three, five, ten and twenty-five year statutes of limitation, Vernon's Ann.Civ.St. Arts. 5507, 5509, 5510, 5519; and that if she ever executed a deed conveying the 100-acre tract to her son, Arthur Henry Wilkins, the same was without consideration, and her execution thereof was obtained by false representations, on which she relied, made to her by her son, to the effect that she was executing a government loan to take up a first lien on said land. She further pleaded that she never received any of the purchase money notes described in her deed to her son; that her said son was then heavily indebted to J. L. and D. Pippin; that she was an old ignorant negro woman, unable to read and write; that D. Pippin, knowing the facts, procured her son to secure said deed from her for the purpose of collecting his indebtedness, thereby participating in the fraud perpetrated upon her.

By supplemental petition appellee denied the allegations set forth in appellant's answer; and pleaded that he and his grantors were each purchasers for value and without notice, relying on the record title to the land in controversy, together with acts and conduct of appellant by way of waiver, ratification and estoppel.

Although appellant testified that she had not executed or acknowledged any of them, the jury found that appellant signed and acknowledged each of the following instruments, all of which were shown to be duly filed and recorded in the deed records of McLennan county, Texas: (1) Deed dated May, 20, 1925, conveying the 100-acre tract to her son, Arthur Henry Wilkins; (2) transfer dated January 14, 1926, assigning certain of the vendor's lien notes executed by her said son and payable to her as part of the purchase price of said land, which notes were described in her deed above referred to; (3) an extension agreement dated December 11, 1929, extending the time of payment of a part of the purchase money evidenced by certain of the vendor's lien notes described in said deed; (4) instrument dated April 8, 1930, releasing all liens held by appellant on said 100 acres, except lien securing note No. 7; (5) instrument dated December 19, 1930, releasing and quitclaiming to her son, A. H. Wilkins, all of her right, title and interest in and to the 100 acres of land involved. There was ample evidence to support each of the findings of fact made by the jury.

The evidence shows that the 100-acre tract was acquired during their marriage by appellant and her husband; that the latter died sometime prior to the transaction with which we are concerned; that thereafter all of the children of appellant and her deceased husband executed and delivered to appellant a deed conveying to her the interest which they had inherited in said 100-acre tract. The evidence further discloses that thereafter, and on May 20, 1925, the land in question was encumbered by the vendor's lien securing an unpaid original purchase money note then owned by Mrs. Helen Primm Ross, as legatee of her deceased husband; that on said last mentioned date appellant executed and acknowledged a deed, which was duly filed and recorded, containing clauses of general warranty, conveying to her son, Arthur Henry Wilkins, the 100-acre tract here involved for a recited consideration of $6,000 to be paid as follows: (1) one first-lien note for $1,235.00, due on demand; (2) a second-lien note for $91.48. The deed recites that the two notes above described are given in lieu of certain indebtedness held by Mrs. Helen Primm Ross and secured by said land. (3) Ten third-lien notes, the first nine being for $467.35 each and the tenth being for the sum of $467.37, all payable to the order of Alice Wilkins and becoming due one each year thereafter in the order named. By instrument dated May 12, 1925, and duly filed and recorded, appellant transferred and assigned the $1,235 first-lien note above mentioned, together with the lien and superior title securing same, to the Federal Land Bank of Houston, and expressly subordinated the liens securing the remaining notes to the lien securing the payment of the note so transferred, and therein referred to the deed she had made conveying said land to her said son. This indebtedness was renewed and extended by an amortization note executed by said A. H. Wilkins and wife, payable to said Bank, and secured by their deed of trust on said land. It further appears that the indebtedness due Mrs. Ross on the first-lien note was paid by the proceeds of the loan made by the Federal Land Bank, and that she released the lien on said land which she held as security therefor. The $91.48 note and the note for $467.35, due May 20, 1926, secured by an inferior lien and held by Mrs. Ross, as assignee of appellant, were by Mrs. Ross transferred, with the security therefor, to J. L. and D. Pippin for value by instrument dated November 15, 1929, and duly recorded. By instrument reciting a valuable consideration paid, dated January 14, 1926, and duly recorded, Alice Wilkins transferred and assigned notes Nos. 4, 5 and 6 of the above mentioned series of purchase money notes, being for $467.35 each, to Pippin Grocery Company, and in said transfer expressly recited that the same were executed by A. H. Wilkins and payable to her in part payment for 100 acres of land conveyed to him by her by deed dated May 20, 1925. By instrument dated December 11, 1929, and duly recorded, executed by D. Pippin, J. L. Pippin, A. H. Wilkins, Lelia Wilkins and appellant Alice Wilkins, it is recited that the latter, by deed dated May 20, 1925, conveyed to A. H. Wilkins the 100 acres of land here involved. This instrument fully described each of the purchase money notes executed by said grantee in payment of the purchase price for said tract of land. This instrument recites the prior assignment by appellant of certain described notes of said series of notes to Mrs. Helen Primm Ross, and also the prior assignment by appellant of certain other described notes of said series to Pippin Grocery Company, and that the same were then owned by J. L. and D. Pippin, together with the notes which appellant had assigned to Mrs. Ross. The instrument further recites that as of November 15, 1929, there was past due and owing to J. L. and D. Pippin, on the vendor's lien notes then held and owned by them, the sum of $1,413.68. It was further recited that said notes then owned by the Pippins were secured by a lien on the 100 acre tract retained in the deed executed by appellant, which lien was expressly recited to be superior to the lien held by appellant as security for the balance of the purchase money then due her in the sum of $225.23. This instrument further recites that A. H. Wilkins had executed his note in the sum of said balance due the Pippins, due...