*1 ELDRIDGE v. ELDRIDGE (259 S.W.) authority any — contention -j®=o37(3) invoking but cite no 2. Courts Party cannot question jurisdiction. Appellee has filed no brief. made. Of An review the testi- examination and who' invoked the aid of the court mony question jurisdiction. the statement of facts disclosed cannot be heard to its supported findings us that are convinces Judges — 3. <®=>24 Chancellor invested with evidence, requires an affirm- broad discretion. judgment, has been of the unless there ance some in The chancellor is invested with dis- broad committed court error of law cretion functions. exermse of his disposition trial and case. Equity. <3=>65(I) Complainant 4. come — [1] We do not think there merit hands. clean assignment, complaining chancery A‘court of is a forum where con- describing con erred in the written science must rule and ask where those who addition, because the tract for a four-room relief must with clean come hands to obtain contract number of rooms does not state the nothing right justice. made to the addition. The court set be Pleading <®=m53(I) allegations- 5. —Inconsistent contract, findings, part of the as a permitted different counts. verba, there no contention hfee permitted Inconsistent under the work it was not the contract pleading. different of a counts done, on. the nor there error was part @=>53( Pleading I)— 6. of one Destruction incorporating court in not dependent count need affect another. findings proposed addition. the sketch of the Each count must its own al- be based on That attached contract referred seems legations, independ- and the destruction of one to, of facts. is included in statement validity ent other. need of an- not. affect the of the the [2] There was no error finding under facts Equity Equity 7. will refuse aid where <®m>3— original changes from written numerous usurp appellate jurisdiction. it would or extra work contract for such additional Equity will refuse aid in cases where contemplated. Additional" work under was original granting usurpa- action aid to a would amount etc., extras, additions, contracts appellate jurisdiction, tion an- or contemplated always may and done opportunity other do that which should subsequent agreement parties, originally pre- been sented done cause was upon time, changing, varying, merits. time altering without original contract. terms Equity Equity may 8. be invoked to 13— testimony shows that work the extra prevent retention of unconscientious advan- time, done, agree- from time to under tage. was ment appellants, and instructions appears’ Whenever has service, appellee, performing through was not been heard the its merits fault complaining prevent party, by any and to re- bound term in the contract advantage tention tained or unconscientious ob- be done. should not opposing party, through his fraud sufficiently think the We some excusable mistake unavoid- justify thereon, foreclosure scribed and overrule .part complaining able accident assignments of error power party, equity the beneficent will be question. presenting the wrong. exerted to undo the fairly think this case tried We has Judgment Judgment <®=443(I)— obtained justice done, substantial and overrule may or concealment be vacated assignments error, all the affirm equity. judgment of the trial court. Generally legal judgment, either of a equitable may tribunal, an by in effect vacated - equity a court obtained fraud or which, known, concealment of facts have (No. 7087.) ELDRIDGE v. et al. prevented the rendition of the complainant diligently seeking has been (Court Appeals of Civil of Texas. San An negligence relief and has there been no Feb. tonio. 1924. On Motion part. fault on his 27, 1924.) Rehearing, Feb. — Judgment Judgment procured <$to443(l) <g=I67 I.Divorce set be- unjust —Decree husband to wife will set aside. granted days within 30 cause suit. after 'procures judgment ifnjust husband Where through fraud, concealment, to wife or mis- will be set aside after the representation, will be set aside remarried on by equity. granted expiration divorce was 30 Vernon’s before of violation of n =87(I) laches, Equity toas stated. filed in —Rule suit usually by Sayles’ Equity will Ann. measure the laches Civ. St. art. complainant brought statute instance of limitations of the w'ife who law; prevail decree, in a court of but such andi was action which brought by invariable, chancellor, rule is not wife four after decree was circumstances, set of rendered. an unusual deem it Key-Numbered topic Digests in all Indexes cases and KEY-NUMBER other see same
259 S.W.—14
*2
259 SOUTHWESTERN REPORTER
permit
bar-
did not
inequitable
red
wife
receive one-half of the com-
even when not
to
suit
statute,
munity property
prima
limitations,
appropriate
held
facie
to state
by
case,
presumed
prosecuted
permit
even
might
it'must be
suit
be
since
that she would
to
or
after
given
by
not have
husband from whom she was
barred
limitation.
seeking a divorce a
half of the
<§=>87(I)—
Equity
Statutes
limitations
12.
community property.
apply to suits.
equitable
apply
Pleading -<§=>216(2) Pleading
limitations
to
on tfemur-
Statutes of
—
ro|r
allegations.
by
actions.
tested
pleading,
thereto,
A
must
on demurrer
precluded
<§=>254
held
set aside
13. Divorce
—Wife
by
allegations.
own
tested
suing
by
from
to
laches
'
>
dividing property.
Pleading <§=><34(3) Every
intendment
re-
—
dividing
judgment,
procured
husband
Where
pleading
solved in favor of
on demurrer.
community property,
conceal-
fraud and
every
general
On
intendment
demurrer
property, the
real facts as
ment of the
pleading demurred
resolved in favor of
brought
action
set aside
wife’s
to
to.
ren-
after the
within four
Rehearing.
On
for
Motion
.
discovery
year
dered,
the'
laches.
but within one
after
—
petition
<§=>254
fraud,
Divorce
Wife’s
to set
was not barred
dividing community
held
decree
estate
aside
to
agreement
<§=>249(2)
as
1.4. Divorce
—'Wife’s
ground
relief.
for
state
property
partition
for
be set aside
to
fraud.
part'
action to set
wife’s
aside
In
community
dividing
estate
divorce
on the
agreement
action, wife’s
wife’s divorce
In
ground
procured her
that the
husband
community
portion of
to
erty
agreement
fraud,
allega-
to such division
preclude
apart
set
for her does not
deprive
husband,
to
with intent
tion that
showing
reopening
the matter on
court from
that
portion
'
the wife of a
one-half of
partition
placed
property,
in 'trust for
thereof
property
was obtained
was based
to
trust
children with the intent
have the
misrepresentation.
fraud and
so
canceled after the divorce
husband
as to invest the
held suffi-
<§=><249(2)
15. Divorce
—Wife’s
entitling
state cause
action
cient to
relief.
wife
divorce
to division
case as
property set aside.
property
agreement as
division of
Wife’s
Eifty-Seventh
Appeal
District
by misrepresentation
obtained
divorce
Judge.
County;
Minor,
Bexar
B.R.
husband was
husband and son that the
by equity,
against
Eldridge
solvent will
community
aside
be set
Mrs.
Suit
Ellen
complicated nature
aof
estate
From
and another.
an order sus-
attorneys
and neither
could
the wife nor
taining
general
petition,
demurrer
learn
true financial
condition
the estate.
remanded,
plaintiff appeals. Reversed and
Insufficiency
with instructions.
16. Divorce
of one count
<§=>254
—
ground
for
relief held
state
affect
Dyéss
Colgin,
Houston,
Bryan,
&
other.
Seeligson
Trueheart,
&Ball
and C. W.
all of
against
husband,
In wife’s action
divorced
Antonio,
appellant.
for
San
petition
fact that
attack-
one
count
Garwood,
Houston,
Boyle,
M.H.
R. J.
ing
validity
of the' divorce decree
did
Antonio,
Wharton,
equitable
ground
of San
R.
Hous-
and C.
relief
not af-
state
fect
validity
ton,
appellees.
of other
set
portion of
as
aside that
division
community property.
E1<Y,
suit
J. This
was instituted
C.
<§=>117(1)
pro
17. Statutes
of statute
—Title
appellant
and Abbie
granting
hibiting
days
of divorce
within
Eldridge, with
he had contracted
whom
.
after suit filed held sufficient
aside,
marriage,
set
Sayles’
1914,
Ann.
St.
Vernon’s
art.
granted
appel-
division
4632, prohibiting
within 30
of a divorce
May 24, 1917,
on
lant
W.- T.
and
he
days
filed,
after
held
vio-
suit-is
required
Const,
to file a full
com-
requiring
art.
§
lative of
inventory
plete
subject
all
of an act to be stated
the title.
belonging
dridge,
and said
T. El-
<§=>105<(1)—Requirement
18. Statutes
to'
pending
.alimony
subject
liberally
and title
construed.
and a
divorce between them
Const,
requiring
subject
art.
§'
community estate,
all the
one-half
title,
stated in the
of an act to be
will be lib-
general
appointment
of a receiver.
erally construed.
petition,
sustained to the
murrer was
—
petition
<§=>254 Wife’s
19. Divorce
set
perfected.
appeal
order
dividing community
d'ecree
aside
sufficient.
estate held
The demurrer was
the sec-
sustained
petition, which is
ond amended
divided into
set
wife’s
of di-
two counts. The first count seeks
nullifica-
dividing
on
vorce decree
.the
estate
divorce,
(cid:127)
tion of the
ground
on
agree-
the
ment thereto
that husband obtained wife’s
fraud,
April 24,
allegation
on
the suit was filed
mere
Digests
topic
Key-Numbered
cases
KEY-N UMBER in all
other
see same
and Indexes
<@z^For
Tes.)
ELDRIDGE
211-
S.W.)
(259
prop- pose
defrauding plaintiff,
al-
and division
hereinafter
leged;
and
ant
and
statement was
false
May 24, 1917,
also
erty
less than
fraudulent
that it showed the defend-
for divorce.
dire financial
straits
count,
things,
among other
In the second
foregoing
the omission of
reason of
it is
follows:
items, showed his
lit-
total assets
be worth
*3
tle,
statement
liabilities;
anything,
above his
that said
B-14124, being
plaintiff in
No.
“That
falsely
fraudulently
sowas
and
made
herein,
plaintiff
in
in her
also
asked
deceiving plaintiff,
for the
did
and
es-
for a division of the
said cause
tate
Eldridge,
her,
and mislead
deceive
as she and her then
W. 'T.
between herself and defendant
attorney
upon
they
same
far
relied
so
as
were
court re-
that
and also asked
comprehend same;
able to
and
understand
the
the
Eldridge
quire
a
to
defendant
T.
file
said
W.
plaintiff
financially
being
unable
incur
complete inventory
com-
said
of the
full and
munity
n expense
necessary
and cost
to have said
estate;
compliance
with said
and
erty
plaintiff
and affairs of
and
April,
in-
request
court,
ojay
defendant
on the 25th
vestigated
the value
and
thereof ascertained
1917,
inventory
said
the said defendant
file
ordered
expert
accountant.
reg-
day
next
before
of
of the
plaintiff
“That while
and defendant in said
court,
said
which convened June
ular term
negotiating, during
cause No. B-14124
merely
were
order, however, being
the car-
said
pendency
cause, for a
of the
of their
settlement
rying
agreement
of a written
made
property rights^
per-
defendant W. T.
attorneys,
through
respective
parties
their
sonally
represented
verbally
plaintiff
and
April
'to
23, 1917.
dated
cbmmunity
that
pay
estate was
insufficient
at
time
“That said defendant
not
did
community debts,
off the
and
said
that
comply
agreement
and
inventory,
with the said order
insolvent,
plain-
estate was
and
effect that if
but that
reference to
he
prosecution
tiff
would
continued
of her
attorneys, during
pen-
did
collapse
result
plaintiff’s
industries
dency
cause, deliver to the
of said
estate,
plain-
involved
tiff would
and
in said
not only^the
attorneys
statements,
certain
some
sworn
nothing
get
but their children
purport-
including
would
to-,
sworn
and some
ed to
affairs of the
what
not
bankrupt
insolvent;
and
rendered
that
properties
said
balance
be trial
of the
and
representations
her
plaintiff
were
defendant,
also
made to
said
March
dated
Jr.,
son,
Eldridge,
who was
by him;
also
signed
1917,
that
community property
and
which was
sworn
agent
son and
defendant
T.
wholly
plaintiff was
with the
unfamiliar
representations
similar
and
were
said
owned
herself and
plaintiff by
also made to
torney
at-
through-
defendant’s
defendant, and same was and had been
matter;
in a
in said
that
letter
date
plaintiff
life
married
and defendant
out the
attorney
May
represented
said
wholly managed
and controlled
said defend-
plaintiff
attorney,
King,
to her
Geo.
and
to
in
R.
ant,
form
in-
and
did
time
he
not
advise
and substance that the said
of,
effect
defendant
to
said estate was of
her as
the condition or value
said
that,
insolvent,
a
and
unless
very
settlement was
compli- was
estate;
proposition
according
made
submitted
nature, consisting of
and other in-
stock
cated
terest in
plaintiff,
defendant
the said de-
companies
sundry
said
kinds,
of various
and
turn his
over
to his
chiefly
fendant
being
Sugarland,
industries in and about
representations
creditors;
all
of said
were
county, Tex.,
most,
all,
and
if not
Ft. Bend
and were
fraudulent
made
the
the
false
purpose
interlocking
and
interests and
such
and
nature
deceiving
with the intent of
that one
familiar therewith
character
not
could
inducing
accept
her
plaintiff and
of-
comprehend
same;
or understand
that the
which
settlement
the defendant was
fer
then
statements furnished
said
character
defendant as afore-
accept.
urging
her
complicated
were of such a
nature and
upon
plaintiff
all of the
relied
aforesaid
“That
plaintiff
that neither
nor her at-
wholly
and,
relying
representations
solely
torneys
able to learn
were
therefrom
true
representations,
believing
upon
said
community estate;
condition
financial
especially
children,
daughters,
had
plaintiff
their
that,
ments were not
learned,
has since
as
said state-
provided
permanently
amply and
correct,
true
fact
but
setting asidé
to them trust
incorrect,
the transfer
truly,
false and
net
did
very
considerable
com-
properly present
fairly, and
and show the con-
munity property as hereinafter set
forth
especially
dition of
plaintiff
upon
transfer
many
said
which
relied
properties
show
valuable
did not
stocks
consideration,
belonging
material
inducement
thereto,
among
including,
oth-
thorough
plaintiff
parcel
to withhold from
was induced
ers, a tract or
of land situated near the
investigation of the correctness of
state-
Ship
erally
Tex.,
gen-
county,
in Harris
Channel
aforesaid,
her as
Ship
in-
ment furnished
lots,
known as
Channel
the-value of
agree
plaintiff
in fact
and did
unknown,
duced to
is to
which
and did not
capital
in settlement
Sugarland defendant
interest
entire
clude
value
community property of
Railway Company, by
herself
said
$500,000,
sum
$21,000
equivalent,
fendant,
sum of
or its
show
Faber
did
Faber
Company,
Plantation
stock of
upon
personal
ther
binding
Company
Planting
which was
fur-
or Faber Mercantile
value,of
and conditioned
plaintiff
reliance
valid and
tois
un-
known,
belong
divorce should and would be
all of which
to the said com-
munity
cause.
said
rendered in
estate and were and are of considerable
compliance
agreement
compared
“That
with such
to the total value
value
of said
cause,
parties ip
estate;
between the
reached
conditioned
rendered
said
that said
statement
further
upon
being
properties
valid
decree of divorce
conveyed
certain
show
by
theretofore
contemplation
defendant to
said
T.
parties
permanently separate
conveyed
said
trustee,
pur-
which were so
n SOUTHWESTERN REPORTER
divorce, upon hearing
plaintiff,
apart
had no
of was then unknown
and she
without
and live
ascertaining
rel-
facts
court- manner means
it was stated
the divorce
by
fraudulently
parties
thereto,
had ative
con-
counsel for both
adjustment
agreed upon
of cealed from
and:
defendant.
settlement
agree-
allege
property rights,
that when de-
“Plaintiff
would further
their
Eldrid-ge
incorporated
fendant
determined
ment
to be
divorce;
pursued
their further
make
there was
of conduct that would
course
court
,
living together
testimony' presented
wife
as man and
which it
plaintiff,
insupportable,,
value of the
that would drive
anything
could
determine
despite
thereto,
community property
or make
division of
her aversion
institution
proceeding against
him,
aof
the said
business
estate.
began
arrange
and W.
“That
accordance with
purported
so as
order
affairs
to conceal
in connection with the
attorneys
attempting
matri
bonds of
the real extent and value of
to dissolve the
*4
mony
estate,
plaintiff
defendant,
part
and,
and
there his
as a
of his scheme
to
between the
conveyance
purported judgment
end,
executed a
also entered
deed-of
W. T.
was
to
May
Eldridge,
a
trustee,
date,
Jr.,
May IS, 1915,
wit,
was
same
to
which
as
of date
than,
agree
copy
however, nothing
fact,
of
is hereto
marked
in
more
the
which
attached and
parties,
whereby
hereof,
and effect ‘Exhibit A’ and
ment
the
substance
made
of
the
conveyed
plaintiff
very
from
of which
defendant,
as
pay
recover
the said W. T.
siderable
was that
con-
should
costs,
community property
$2,500
the
of
besides
sum of
the
and
attorney’s fees,
Eldridge, Jr.,
was to
the
that defendant
estate
said
T.
in trust
and
to
W.
plaintiff
equivalent
plain-
$21,000,
in value for the
or its
use and
of the children
benefit
of
Jr.,
personal
wit,
defendant,
Eldridge,
sat
tiff
and
in full
and
W.
in
settlement
to
T.
community
Ivy Eldridge,
Woodal,
the
es Miss
isfaction of her interest
in
and
Ethel
Mrs.
tate, $1,000
property
in and that
be and
the
of which was to
was
entire
described in said
entry
paid
Jr.,
trust
name of W. T.
the
fact
in
the
of
deed to
T.
Eldridge, Jr.,
in
cash about
time
the
W.
stood
the
twenty
mortgage gold
trustee,
decree,
as
of
and
at
said
plaintiff
Railway Company,
Sugarland
each
bonds
the
time
instituted suit
the
of
$1,000;
B-14124,-
said
T.
sum of
accordance with
W.
in cause No.
and
the
in
up
agreement,
said
the
took
and continued to stand in the
of
El-
defendant
name W. T.
Jr.,
paid
est when
the 11th
prop-
bonds, paying
dridge,
erty
inter
the
said
of
aforesaid
for three.of
the
at
date
the
purported
accrued,
and
as same
on
and
of di-
and
or about
decree
settlement
day
cause;
May, 1920, plaintiff
plaintiff
vorce in
of
and defend
said
was' in-
agreed
arrange
believe,
believe,
ant
to cancel
to
annul said
duced
and
and did then
.
bonds,
property
transfer,
ment with reference
and
said
to said
de
as described
said
all
paid
being
plaintiff
$7,000;
property
plaintiff
community
fendant
further sum of
of
and de-
the
good
$10,000
fendant,
and for the balance or
de
remainder
set
of
was
faith
trust
plaintiff
permanent
negoti
support
to
fendant delivered
one certain
the
and maintenance of
especially
promissory
amount, payable
plaintiff
defendant,
children
able
the
of
and
note for said
to
thereupon
relying
daughters,
order,
May
1920, payable
their
and
her
or be
was one
dated
on
plaintiff
years
inducements
date,
of
agreement by
to
the
the main
fore
from its
was
which saidlnote
signed
King
her of the settlement hereinbe-
and executed W. R.
indorsed
and
by
been'fully
cluding
fore
Eld-ridge,
set
said
and
forth.
has since
which
throughout
paid;
divorce,
“That
was
the fraudulent
in
said
of
property
aforesaid,
scheme
dridge
of
said
T. El-
and intention
the
W.
settlement
was
procure
trustee,
prepared
from the said
W.
defendant’s
counsel
advance
Eldridge, Jr., and from
beneficiaries un-
hearing
T.
court,
before
and in
so far
reconveyance
deed, a
of
attempted
der
property
trust
said
community
said
itas
divide
estate
said
plaintiff
defendant after
wholly
defendant,
of
was
erty
plaintiff
rights
solely
said
this
upon
defendant and
them,
based
adjudicated
compro-
settled,
had
been
and was not
of the
parties,
truth
fact
them, but
merely
which fact was not
court,
mise between
an
pur-
plaintiff;
known
after said
given
then
cannot
force
ef
plaintiff
ported
divorce decreed between
fect of a
court.
in, pursuance
defendant,
defendant,
his
said
plaintiff,
year
prior
within
“That
about
fraudulently
plan
formulated
which
original petition
said
cause,
of her
in this
pur-
prior
on, wit,
and from date of said
19-21,
existed
March
which
sets
defendant,
plaintiff
ported
up
the
fendant,
divorce between
action,
same cause of
this
representations
learned that
Jr.,
procure
said
T.
aforesaid made
the de-
trustee,
the beneficiaries
agent
as
under said deed
each of
attorneys,
as
the con-
except
plaintiff,
community
of trust
dition of the
were in fact
rights
relinquishment
under and
untrue,
representations a
of all their
false and
and that the
conveyance
by
Eldrid'ge,
falsely
fraudulently
said
said
virtue of
aforesaid were
and'
made
being
plaintiff
result
vir-
attorney
the net
to
the
and her
in' said
inducing
El-
said
said defendant
tue of
fraud the
to abandon
her suit
very
adjustment
dridge placed
community
of a
considerable
affairs
said,
community
part
this
of himself and
husband,
estate
between herself and her
and to
approximate
$670,-
plaintiff
compromise
value of
induce
finally accepted
she
trustee,
incorporated
said
the name
said
as
800 in
purported
aforesaid,
until after said!
as
in title remained
in truth and
property
divorce and
settlement
fact the
representations
estate
cree
rendered,
said
time of
carrying
thorough-
fraud-
when in
and transactions was
reconveyed
property
value,
scheme,
ly solvent,
exceeding
he had said
a net
lia- ulent
all
him,
bilities,
$750,000,
and has thereafter claimed
of at least
but which fact
v. ELDRIDGE
(259 S.W.)
obtaining
judg-
plead
separate property
acts in
denied
own
and has
his own
any part
right, title,
invalidity,
given
interest
plaintiff
a decree
ment and be
consequence,
thereof;
said
and,
all of
as "a
happiness
reputation
destroy
and.
deed,
trust
property
said
covered
an innocent woman.
of divorce
That decree
approximate value
and is of
upon
the attack
$670,800,
out of consideration
left
begun
it was
about four
settlement with
plaintiff in
aforesaid
inequitable
it was rendered. Such
a suit
said
defendant,
defendant's
induced
unjust, and
should not be sustained
representation
to be-
scheme
fraudulent
lieve that
in
grounds
public policy.
had
If the facts are
said
permanently
trust
good
set aside in
petition,
faith and
t,he
procuring
support
benefit
the use
perpetration
the decree of divorce
daughters,
children, especially their
of their
upon
jurisdiction
court,
of a
fraud
plaintiff
settle-
have made such
would not
and
ment if such
litigants
to which fraud both of the
properties had been considered
parties.
actively engaged
Both were
in ob-
among
they
estate
assets
taining
divorce,
upon
and the fraud
the'
been,
said
becausb
should ha've
jurisdiction
and,
mutual,
purported
court was
transfer.
in such
defendant
fully
all
account for
_as
“That
this court in the well-considered
offers
fraudulent
the said
received under
Moor,
that she
case of
Moor