Wyche v. Clapp

• Decision Date: 01 January 1875
• Parties: DREW WYCHE ET AL. v. EMORY CLAPP.
• Court: Texas Supreme Court

43 Tex. 543

DREW WYCHE ET AL.

v.EMORY CLAPP.

Supreme Court of Texas.

1875.

APPEAL from Rusk. Tried below before the Hon. M. D. Ector.

Robert D. Wyche and his wife, Mary D. Wyche, March 28, 1863, made a joint or mutual will, in which, after several bequests, was the following clause:

“Fourthly. William Wyche, Drew Wyche, Mary Wyche, Susan E. Wyche, Irene E. Wyche, and Dora Wyche, not having received by deed of gift as much by five hundred dollars as their brothers and sisters, we will that the surviving party to this will pay to them, William, Drew, Mary, Susan E., Irene E., and Dora Wyche, five hundred dollars and one bed and furniture; and if not paid by the surviving party at the death of both parties to the will, the executors shall pay them, the said William Wyche, Drew Wyche, Mary Wyche, Susan E. Wyche, Irene E. Wyche, and Dora Wyche, five hundred dollars each and one bed and furniture, out of the sales of the land on which we, Robert D. Wyche and Mary D. Wyche, reside, and other property, and divide the remainder of the estate equally between all the heirs.” * * *

Executors were named, and it was provided that no security be required of them, and that the estate be administered without control of the courts.

Robert D. Wyche died; the will was probated; Mary D. Wyche qualified as executrix, and returned an inventory and appraisement in October, 1863, the inventory not showing whether the property was separate or community.

July 13, 1866, Emory Clapp, William H. Garner, and William H. Saunders, a partnership under the firm name of “Clapp & Co.,” brought suit on an account against Mary D. Wyche.

Pending the suit, March 1, 1867, Mary D. Wyche conveyed to Drew Wyche, Mary Wyche Hutchins, the heir of William Wyche, Emily, Irene, and Dora Wyche, all her interest in the home tract of land of about 700 acres, reserving a homestead of 200 acres, and all the interest and title she had to any and all property owned by her and her deceased husband at his death, the consideration named in the deed being $2,500, with covenants of warranty, &c. The real consideration, as testified by Mrs. Mary D. Wyche, was to satisfy the bequests in the will of her deceased husband, Robert D. Wyche; but she insisted that the deed had been made in good faith, and not for the purpose of defrauding her creditors.

The suit was prosecuted to judgment on 31st October, 1868, for nine hundred and six dollars and forty-one cents--the judgment containing no other name or description of the plaintiffs than “Clapp & Co.” The verdict was for $906.25; the judgment was for $906.45.

An execution issued on that judgment, which was levied on a tract of about 700 acres of land, that on which Robert D. Wyche had resided, and on which his widow still resided. The land was sold under the execution, and Emory Clapp became the purchaser, receiving a deed from the sheriff.

November 29, 1870, Emory Clapp brought suit against Mary D. Wyche for partition. She disclaimed, except as to her homestead of two hundred acres, and judgment was rendered September 6, 1871, in his favor for the land, less the homestead of two hundred acres adjudged to defendant.

July 26, 1872, Emory Clapp filed his petition against the grantees in the deed from Mary D. Wyche, charging that the deed was without consideration and fraudulently made, praying for recovery of the land, that the deed be canceled, and for general relief.

By supplemental petition Clapp made all the heirs of Robert D. Wyche parties defendants and prayed that after excluding the homestead the remainder of the seven hundred acres tract be partitioned into two equal parts, and that one of said parts be adjudged to him.

The defendants pleaded the title from Mary D. Wyche, insisting that the grantees, by virtue of the joint will of Robert D. Wyche, deceased, and the grantor in the deed, took the estate as against the execution sale under the judgment against the grantor.

The entire proceedings in the two suits were read in evidence, and form part of the statement of facts, the judgment in the case of Clapp & Co. being objected to.

Judgment was rendered 3d May, 1875, in favor of Clapp for an undivided half of the tract of land, and commissioners were appointed to make partition between Clapp and the defendants.

Motion for new trial was overruled and the defendants, Drew Wyche et al., appealed.Drury Field, for appellants, cited Thornton v. Tandy, 39 Tex., 544;King v. Russell, 40 Tex., 125.

Martin Casey, for appellee, cited Conn v. Davis, 33 Tex., 203;Raymond v. Cook, 31 Tex., 385; 1 Story Eq., § 351; Garner v. Cutler, 28 Tex., 176.

MOORE, ASSOCIATE JUSTICE.

The objections to the admissibility of the pleadings and judgment whereon the execution was issued, under which the plaintiff in the court below claimed the land in controversy, were properly overruled. If any question could be made to the manner in which the plaintiffs are designated and described in the judgment, or to the slight discrepancy of sixteen cents between the verdict and the judgment, it could only be by a direct proceeding to this end and not in a collateral proceeding. It clearly appears from the evidence to which the exceptions were taken that there was a judgment to support the execution under which the land was sold. This being the case, it was certainly admissible as tending to establish the title of the purchaser under the execution, while the judgment stood in force, though it appeared on its face to be erroneous and voidable.

Nor did the court err in refusing to sustain the exception to the judgment in favor of plaintiff below against Mary D. Wyche. This judgment was properly admitted to show what portion of the entire tract described in the sheriff's deed had been set apart to Mrs. Wyche as her homestead. It also served, in connection with the sheriff's deed, as a muniment or link in the plaintiff's title.

All the other grounds relied upon by appellants for the reversal of the judgment resolve themselves into the general proposition that appellee failed to show the superior and better right to the land recovered by him; and on the facts submitted the court should have rendered judgment in favor of appellants.

This proposition leads us to the inquiry, which of the parties, on the facts disclosed in the record, has the superior title to the one-half of the tract of land adjudged to appellee.

The legitimate conclusion from the evidence is, that the entire tract of land,...