Cowan v. Brett

KEY, Associate Justice. Holt and Frank Brett brought this suit to set aside a former judgment upon the grounds (1) of fraud in procuring it; (2) a meritorious defense which was not presented; and (3) failure to file statement of testimony in the former suit, as required by statute, the defendants being served by publication. It was also alleged that the plaintiffs in this suit, who were defendants in the former suit, were minors at the time the former judgment was rendered. It was asked that the former judgment be set aside and a decree of partition entered dividing the lands referred to. The case was sumbitted to a jury upon special issues, the answers to *572 which, together with certain findings of fact by the trial judge, were made the basis of a decree setting aside the former judgment and decrees, and awarding to the plaintiffs a 5-6 undivided interest in one of the tracts of land, and a 3-24 interest in the other tract. Mrs. Nancy J. Cowan, one of the defendants, has appealed. It was held that she had no interest in the first tract of land, but the judgment awards to her 14-24 of thp other tract. The first assignment of error complains of the action of the court in refusing to render judgment for Mrs. Cowan upon her motion to that effect, for the alleged reason that the jury found that there was no fraud or collusion in the procurement of the former judgment. The first issue submitted to the jury was whether or not the judgment referred to was procured by fraud or collusion on the part of the plain; tiffs in that suit. The jury answered: “As to the court there was no fraud, but N. J. Cowan and others did make false statements in their pleadings.” But in response to the nineteenth and twentieth issues submitted the jury answered that the plaintiffs in the former suit represented to the court that N. J. Cowan owned one-half of the 86 acres in controversy, for the purpose of depriving Holt Brett and Frank Brett of their interest in said 86 acres, and that Ed. Price as agent, so represented, and that the representations referred to caused the court to enter a decree which would not have been entered but for such representations. The uncontroverted testimony shows that at the time referred to Holt and Frank Brett owned 5-6 of the 86 acre tract of land. Therefore the representations which the jury found were made to the court on the former trial were false, and as they resulted in misleading the court and causing it to, enter a decree depriving the Bretts of their interest in the land, such representations constituted a fraud. Hence we hold that the record does not sustain appellant’s contention that the jury found that the former judgment was not procured by fraud. Furthermore, the plaintiffs in this suit, being minors at the time the judgment referred to was rendered, and having been served by publication, and not having answered except by an attorney appointed by the court, and no statement of facts having been filed as required by statute, and it being shown that they had a good defense to the former suit, it would seem that they are entitled to have the former judgment set aside regardless of the question of fraud. (Rev. Stats., arts. 1346, 1375, 1376; Snow v. Hawpe, 22 Texas, 168; Wallis v. Stuart, 92 Texas, 568; Thomas v. Jones, 41 Texas, 265; Taliafero v. Carter, 74 Texas, 637.) The second assignment complained because the court did not instruct the jury that if the consideration of a certain deed from Nancy Price to Carrie Brett was love and affection said conveyance would be a gift, and treated as an advancement, Carrie Brett being a child of Nancy Price. Appellant’s brief does not show that any such instruction was requested. The record contains a special instruction covering that and several other propositions, which instruction was,properly refused for reasons not relating to the' question under consideration. To have presented the question referred to properly, appellant should have asked an instruction covering that question only. However, if such instruction had been asked, we are not prepared to hold that it should *573 have been given. We do not concede the proposition that whenever a deed from parent to child is made upon consideration of love and affection, it necessarily follows as a matter of law that the property conveyed must be treated as an advancement under the statute. In our opinion the court properly instructed the jury as to what would constitute an advancement, and we overrule the fifth assignment of error which complains of the court’s charge upon that subject. The deeds referred to under the fourth assignment were not void. A married woman can make a verbal partition of her real estate; and her deed, though not acknowledged, may be effective for the purpose of accomplishing a partition. There are some other questions presented, all of which have been considered and none of which it is deemed necessary to discuss in this opinion, except the one raised by the seventh assignment, which asserts that the trial court should have granted a new trial because it was shown that one of the jurors was related to one of the attorneys representing the plaintiffs. The record shows that the foreman of the jury was the father-in-law of Jno. C. Meade, one of the attorneys who represented the plaintiffs; that Meade and his partner, plaintiffs’ other attorney, had a contract with the plaintiffs by which they were to have a portion of the property recovered. It was also shown that appellant’s attorney knew of the relationship referred to when the juror was accepted, but did not know that appellees’ attorney had a contingent interest in the case; that appellant had exhausted her peremptory challenges, and if her attorney had known of the contract between appellees and their attorneys, he would have objected to the foreman sitting on the jury. However, it was not shown that appellant herself did not know of the existence and purport of the contract referred to. The record shows that she was present and testified in the case; and, for aught that is disclosed, she may have known at the beginning of the trial that the juror was related to one . of appellees’ attorneys, and of the existence of the contract by which that attorney would be entitled to a portion of the land recovered. Hence we hold that sufficient diligence was not shown to-entitle appellant to have the judgment set aside on account of the matters referred to. No reversible error has been shown, and the judgment is affirmed. Affirmed. Writ of error refused.