Wise v. Haynes

• Decision Date: 18 March 1937
• Docket Number: No. 5019.,5019.
• Citation: 103 S.W.2d 477
• Parties: WISE et al. v. HAYNES et al.
• Court: Texas Court of Appeals

Page 477

103 S.W.2d 477

WISE et al. v. HAYNES et al.

No. 5019.

Court of Civil Appeals of Texas. Texarkana.

March 18, 1937.

Rehearing Denied April 1, 1937.

Appeal from District Court, Gregg County; W. H. Strength, Judge.

Trespass to try title by Peter E. Wise and another against J. M. Haynes and wife, and others, wherein J. T. Eggleston, joined as a party plaintiff and Lem L. Allen, and others were added as defendants. From a judgment for defendant, plaintiffs appeal.

Reversed and rendered.

Lee, Porter & Latham, of Longview, Edwin M. Fulton, of Gilmer, and Wm. Hodges, of Texarkana, for appellants.

Wynne & Wynne, Campbell & Leak, James V. Leak, and Wm. A. Wade, all of Longview, and J. W. Timmins, of Dallas, for appellees.

JOHNSON, Chief Justice.

This suit was filed by appellants, Peter E. Wise and Martha Wise French, against J. M. Haynes and wife, Lucy Haynes, and Marcus P. Haynes and wife, Mary Haynes, in trespass to try title to 202 acres of land in Gregg County, Texas. A second amended original petition was filed in which J. T. Eggleston joined as a party plaintiff and Lem L. Allen, E. B. McKean, Thomas Dix, E. V. Woolsey, and the Sun Oil Company were added as defendants. It is not thought necessary to describe the several pleadings of the defendants, further than to state that the defendant J. M. Haynes disclaimed any interest in the land and alleged that it is now owned, the west one-half by his wife, Lucy Haynes, and the east one-half by his son, Marcus P. Haynes. The case was tried before a jury. At the conclusion of plaintiffs' evidence plaintiffs took a nonsuit as to the defendant Sun Oil Company and that defendant was dismissed from the case. The remaining defendants then filed motions for instructed verdict in their favor. The motions were granted, and upon return of the verdict judgment was entered in favor of the defendants and that plaintiffs take nothing by reason of their suit. Plaintiffs have appealed.

Appellants assign as error the action of the trial court in directing a verdict in favor of defendants; and in excluding a certain affidavit executed by defendant J. M. Haynes, offered in evidence by appellants against Marcus P. Haynes; and in sustaining appellees' objections to certain testimony offered in evidence by appellants.

Appellants contend that the facts introduced in evidence and against which no objection was sustained were sufficient to go to the jury on the two issues upon which their suit is based, namely: (1) that appellants, Peter Wise and Martha Wise French, were the children of Mary Jane Wise who became the second wife of appellee J. M. Haynes; (2) that the land in question, which was purchased by J. M. Haynes after the death of his second wife and during his third marriage, was paid for with property and proceeds of the sale of property belonging to the community estate of J. M. Haynes and his second wife, Mary Jane Wise.

We do not think that it would serve any useful purpose to lengthen this opinion with a detailed statement of the testimony of the several witnesses establishing the first issue, which testimony we find is amply sufficient in showing that appellants, Peter Wise and Martha Wise French, are children of Mary Jane Wise, who became the second wife of J. M. Haynes.

Bearing upon the second issue above mentioned, we will state some of the facts admitted in evidence, as well as certain other facts, distinguishing them, offered in evidence by appellants and which we think the trial court erred in rejecting. The facts so excluded, when taken together with the facts admitted in evidence, meet the requirements of law in character of evidence, clear, certain, and convincing, as against appellee, Marcus P. Haynes, to impress the property in controversy with a trust protecting the interest of appellants. Peter Wise and Martha Wise French, as children of Mary Jane Wise Haynes, deceased.

J. M. Haynes is now living with his third wife, Lucy Haynes. His first wife, Minnie O'Rear, died in 1872. In 1876 he married Mary Jane Wise in Lee county, Miss. J. M. Haynes and his wife, Mary Jane, moved to Morris county, Tex., in 1898, and purchased a farm near Daingerfield, and executed notes for the purchase price. They later paid the notes from their earnings on this farm. In 1910 they sold the Morris county farm and moved to Longview, Gregg county, Tex. Mary Jane died in March, 1911. Appellee Marcus P. Haynes is the only surviving child born of the marriage of J. M. Haynes and his second wife, Mary Jane Wise. It appears that appellants, Peter Wise and Martha Wise French, and appellee Marcus P. Haynes are the sole heirs of Mary Jane Wise Haynes, second wife of J. M. Haynes. In 1912 J. M. Haynes purchased some lots in the Northcutt Heights addition to the city of Longview and built two houses on them. He later married Mrs. Lucy McFarland, his present wife. June 22, 1917, he purchased the 202 acres of land now in controversy from J. R. Bozman. The conveyance was made to J. M. Haynes and wife, Lucy Haynes. The deed recites a consideration of $6,000, of which $1,000 was paid in cash, $3,000 in trade, and two notes for $1,000 each, due October 15, 1917, and October 15, 1920. That part of the consideration mentioned as $3,000 in trade was a conveyance by J. M. Haynes of the Northcutt Heights property above mentioned. The deed from Bozman recites that Lucy Haynes furnished $800 of the purchase money. Subsequently, March 1, 1919, Lucy Haynes executed and acknowledged an instrument reciting that she had been repaid the $800 which she had furnished on the purchase price of the 202 acres of land and that she thereby released and quitclaimed any lien on or interest in the land.

By deed dated March 10, 1931, recorded the following day, J. M. Haynes and wife, Lucy Haynes, conveyed to Marcus P. Haynes the east one-half of the 202-acre tract of land, by reason of certain facts recited in the deed as follows:

"That J. M. Haynes, and wife, Lucy Haynes, of the County of Gregg, State of Texas, for the following consideration, paid by M. P. Haynes, as follows:

"For and in consideration of M. P. Haynes accepting the land herein conveyed as being in full and final satisfaction of his claim or claims against J. M. Haynes and wife, Lucy Haynes, or either of them, to any and all interest that he may be entitled to claim in any of the land and premises now being in the name of J. M. Haynes and wife, Lucy Haynes, in Gregg County, Texas, that he have have by reason of his being a son of the second wife of J. M. Haynes, and his mother being Mary J. Haynes, and this land herein conveyed is to be in full and final satisfaction of all community property claims or separate estate claimed by him and wife, Mary Haynes, by reason of any right, title, or interest which he inherited from his deceased mother, Mary J. Haynes, and in and to the property, whether real or personal of J. M. Haynes, by reason of his claim as an heir of his mother, have Granted, Sold, and Conveyed, and by these presents do Grant, Sell, and Convey unto the said M. P. Haynes, of the County of Gregg, State of Texas, all that certain East one-half of the tract or parcel of land situated in Gregg County, Texas, it being 202 acres, a part of the G. A. Thompson Survey, located about 2 miles E. of the town of Gladewater, and described by metes and bounds as follows:"

On the same date, March 10, 1931, J. M. Haynes and his wife, Lucy Haynes, and Marcus P. Haynes and his wife, Mary Haynes, executed a deed conveying the west one-half of the 202 acres of land to Edwin Lacy, reciting a consideration "of $1.00 and other considerations." And on the same day Edwin Lacy reconveyed the property to Lucy Haynes by deed, reciting: "For and in consideration of the valuable consideration to me in hand paid by Lucy Haynes from her separate estate, and to her separate use and benefit. * * *"

On March 17, 1931, Marcus P. Haynes and his father, J. M. Haynes, went to the office of Ramey, Calhoun, Marsh & Higgins, attorneys at law of Tyler, Tex., who were preparing to file a suit in the federal court at Tyler for Marcus P. Haynes and one Robert Osborne (purchaser of a mineral interest from Marcus P. Haynes). The suit was against the Sun Oil Company. While there J. M. Haynes made a full statement of the facts concerning his acquisition of the 202 acres of land, showing that it was paid for with community funds of himself and his second wife, Mary Jane. The statement was made in the presence of Marcus P. Haynes and in response to questioning by his attorney, Mr. Tom Ramey, who was then preparing the case to be filed against the Sun Oil Company. The statement was signed and sworn to by J. M. Haynes before Lois Wells Orr, a notary public. Lois Wells Orr was stenographer for Mr. Ramey. The affidavit reads as follows:

"The State of Texas

"County of Smith

"Before me, the undersigned authority, on this day personally appeared J. M. Haynes, who, being by me first duly sworn, deposes and says:

"That affiant has been married three times, my first wife was Orear Haynes, to whom I married in the year 1872. The said Orear Haynes died intestate in the year 1873. There was born of this marriage one and only one child, Emma Haynes, who is now the wife of John R. Stephens, and who now resides in Daingerfield, Texas.

"I was married the second time in the year 1877 to Mary Jane Wise. My said second wife, Mary Jane Haynes, died intestate in in the year 1910. There were born of my said second marriage two and only two children, one of whom died in infancy, and the other, my son, Marcus P. Haynes, who now resides in Gregg County, Texas.

"My said second wife, Mary Jane Wise, was married twice, and only twice, she having been married prior to her marriage to me to Jim Wise.

"I was married the third time in the year 1912 to Lucy McFarland, who is now living, and who is my present wife.

"In the summer of 1909, I moved from Morris County, Texas, where I had been living, to...