Wright v. Matthews

• Decision Date: 14 June 1939
• Docket Number: No. 10522.,10522.
• Citation: 130 S.W.2d 413
• Parties: WRIGHT v. MATTHEWS et al.
• Court: Texas Court of Appeals

130 S.W.2d 413

WRIGHT v. MATTHEWS et al.

No. 10522.

Court of Civil Appeals of Texas. San Antonio.

June 14, 1939.

Rehearing Denied July 5, 1939.

Appeal from Seventy-third District Court, Bexar County; W. W. McCrory, Judge.

Suit by Frank W. Matthews, guardian of the estate of Genoa C. McGinley, and another, against Benjamin F. Wright and others to set aside a deed executed by Genoa C. McGinley and to cancel deed of trust liens securing notes held by certain defendants. From an adverse judgment, the named defendant appeals.

Reversed and remanded.

McCombs & Andress, of Dallas, for appellant.

Spears, Conger, Baskin & Spears, of San Antonio, for appellees.

MURRAY, Justice.

This suit was instituted by Frank W. Matthews, purporting to act as guardian of Genoa C. McGinley, non compos mentis, against Kathryn Hughes and her husband, Foy T. Hughes, Benjamin F. Wright, and John P. Forrest, seeking to set aside a deed made by Genoa C. McGinley to Kathryn Hughes conveying Lot 14, Block 66, New City Block 3334, of the City of San Antonio, dated July 10, 1937, and further seeking to cancel a deed of trust lien securing a note in the principal sum of $2,250, held by Benjamin F. Wright, and a second deed of trust lien, securing the payment of a note in the principal sum of $475, held by John P. Forrest. Mrs. McGinley had been adjudged insane after she had signed the deed to Kathryn Hughes.

The cause was submitted to the jury and the following findings made, to-wit:

1. Genoa C. McGinley did not have sufficient mental capacity to execute the deed, dated July 10, 1937, to Kathryn Hughes, conveying said Lot No. 14.

2. That the sum of $175 was paid by Foy T. Hughes for Kathryn Hughes to Mrs. McGinley, in consideration of the execution of the deed.

3. That the $175 was used for the purpose of paying for or supplying necessaries to the said Mrs. Genoa C. McGinley.

4. That the deed from Mrs. McGinley to Mrs. Hughes was not executed in good faith, in whole or in part.

5. That the execution of the deed was not entered into by Kathryn Hughes in good faith.

5-A. That the execution of the deed was not entered into by Kathryn Hughes without fraud or imposition.

5-B. That the deed was entered into by Kathryn Hughes for a valuable consideration.

5-C. It was not entered into by Kathryn Hughes without notice of such infirmity of Genoa C. McGinley.

6. That the deed was not executed without fraud or imposition insofar as Kathryn Hughes was concerned.

7. That the deed was not executed in good faith, in whole or in part, insofar as Kathryn Hughes was concerned.

8. That the deed was not executed and delivered without knowledge on the part of Kathryn Hughes of the unsound mental condition of Genoa C. McGinley.

In keeping with the findings of the jury, judgment was entered:

(1) Cancelling, setting aside and holding for naught the deed dated July 10, 1937, from Genoa C. McGinley to Kathryn Hughes.

(2) Cancelling, setting aside and holding for naught the deed of trust executed on July 22, 1937, by Kathryn Hughes and husband to Nowlin Randolph, as trustee for the said Benjamin F. Wright.

(3) Cancelling, setting aside and holding for naught the deed of trust executed on August 18, 1937, by Kathryn Hughes and Foy T. Hughes, conveying said Lot 14 to John P. Forrest, to secure a note in the sum of $975, insofar as the same affects the rights of Genoa C. McGinley. Also canceling power of attorney executed by Kathryn and Foy T. Hughes to John P. Forrest.

(4) The judgment based upon the condition that Frank W. Matthews, as guardian, pay into the registry of the court the sum of $232, to reimburse Kathryn and Foy T. Hughes for taxes paid by them, and the sum of $175 to reimburse the Hughes for the consideration paid.

(5) Granting personal judgment in favor of Benjamin F. Wright against Kathryn and Foy T. Hughes for the amount of principal and interest due on the Wright note, but allowing no foreclosure.

(6) Discharging C. N. Wideman as receiver of the property.

From this judgment Benjamin F. Wright alone has prosecuted this appeal.

Appellant's first assignment is without merit and is overruled.

Appellant next contends that appellee should not be granted cancellation in equity as against an innocent third party mortgagee, with supervening equities, when the appellee has the legal right to recover damages against Kathryn Hughes. We overrule this contention. The law is settled in this State that the deed of an insane person or minor may be cancelled and set aside, even though there be supervening equities of innocent persons without first showing that there is no adequate remedy at law. McCleskey v. McCleskey, Tex.Civ.App., 7 S.W.2d 657; Mitchell v. Inman, Tex.Civ. App., 156 S.W. 290.

Appellant next contends that Frank W. Matthews was not the legal guardian of Mrs. McGinley, but that his appointment was void because the proceedings in the county court reveal that Mrs. McGinley was not served with personal notice of his application to be appointed her guardian, as is required by Article 4116, R.C.S.1925; such article being made applicable here by the provisions of Art. 4274, R.C.S.1925. We overrule this contention. The judgment appointing Frank W. Matthews as guardian recites that "due notice of such application has been given," and such recital is controlling, and the remainder of the record may not be looked to for the purpose of seeing if there was notice, when only a collateral attack is being made on the judgment. 25 Tex.Jur. p. 853, § 328; Vick v. Downing, 120 S.W.2d 280; Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932.

Appellant next contends that it was error to admit in evidence the lunacy proceedings against Genoa C. McGinley, had subsequent to the execution of the deed to Kathryn Hughes. We sustain this contention. The proceedings were offered for a limited purpose, but this does not change the situation. Genoa C. McGinley had not been adjudged to be of unsound mind at the time that she executed the deed to Kathryn Hughes, and the lunacy proceedings had subsequently were not admissible in evidence for any purpose. Uecker v. Zuercher, 54 Tex.Civ.App. 289, 118 S.W. 149; Black v. Boyer, Tex.Civ.App., 21 S.W.2d 1094; Rowan v. Hodges, Tex.Civ.App., 175 S.W. 847.

A judgment of sanity or insanity is not res judicata at a prior or subsequent date to that of its determination. Taylor v. Taylor, Tex.Civ.App., 91 S.W.2d 394; Lindsay v. Woods, Tex.Civ.App., 27 S.W. 2d 263; Black v. Boyer, supra.

The witnesses Dr. T. N. Goodson and Dr. T. E. Christian were permitted, over the objection of appellant, to testify, in effect, that Mrs. McGinley did not have mental capacity to understand and appreciate the nature and consequence of her acts. This was error....