Smith v. Patillo

WILLSON, C. J. (after stating the facts as above). The court should not have instructed a verdict for appellee as he did if the jury, might have found from the testimony that appellee held the title to the land in trust for appellant and her husband (Lucia v. Adams, 82 S. W. 335; Ellerd v. Ellison, 165 S. W. 876); if they might also have found that appellee, so holding the land, by collusion with appellant’s husband secured the judgment vesting an absolute title in him, thereby defrauding appellant of her right therein (Buchanan v. Bilger, 64 Tex. 589; Davis v. Jones, 149 S. W. 727; 23 Cyc. 937); and if they might also have found that appellant was not without a sufficient excuse for not being present and contesting the right of appellee to said judgment (Allen v. Land Co., 135 S. W. 682, and authorities there cited). After carefully considering the testimony, we are of the opinion the jury might have so found, and therefore that the court erred in taking the case from them. As the cause will be remanded for a new trial, the testimony will not be commented on further. Judgment reversed, and cause remanded for a new trial. Footnotes [1] <gs»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes