*1 make requested that Appellee has (g) there “That following fact conclusion: effect testimony to the legitimate vacant had been the house fire.” days before ten more than original Our denied. request must be This testimony accurately reflects opinion that issue. is in all rehearing motion for Appellee’s overruled, except as reflected things filed a has also Appellant opinion. which, a care- rehearing motion things overruled. review, inis ful al. v. JOINER et
JOINER
No. 11980. Appeals Dallas. Texas. of Civil
Court
Oct. 1935.
Rehearing Nov. Denied *2 January,
"were lived to- married in gether days as husband and wife until a few 1933; August 31, date that on said af|er defendant came to Ardmore and induced agree j a oint execution of will, disposing property of their for the children; benefit of their but that instead writing of agreed upon, defend- ant purported property wrote a settlement agreement, plaintiff signed, thinking which will; it was a in- signed it, strument reading without as she could not read glasses without her and had none read, at the time with which she could confiding signed the in- belief, strument under said and would not have done so otherwise. Plaintiff asserted ownership properties, to one-half of all said whether tested the laws of Oklahoma or Texas, laws of sought cancellation of question, recovery instrument properties. one-half of said answered, plaintiff’s denying allegations, pleaded, as a full and final settlement rights parties, purported property settlement contract of We assent to the statement page at four brief, of defendant's “Virtually only question to be submitted to the was whether or not the action of C. M. Joiner, obtaining signature of Mrs. L. A. agreement to the said fraudulent.” This was submitted special issues, a number of answers, and based their the court entered take noth- ing, from appealed. which she divorce, plaintiff Prior to the and defend- ant together had lived as husband and wife Riddle, Ardmore, Old., Andrew B. fifty-two years, at that time he seventy- McMahon, Cantey, Hanger & Fort years four age seventy; and she eight Hurt, Dallas, .Worth, ap- and Earl E. children them, had been born to seven then pellant. living, daughters sons, five and two all Hamilton, Hamilton & Turner and D. A. married and residing to themselves except Dallas, Frank, appellees. daughter, Fannie, one Miss who remained with her mother in Ardmore. LOONEY, Defendant, Justice. having plans matured to ob- Joiner, tain, A. sued Juarez, Mexico, Mrs. L. a divorce from husband, others, seeking plaintiff her former his then stenographer, recovery one-half property, Dallas, of all real went where he maintained his acquired personal, headquarters, ánd Ardmore, mar- business pur- possessed that was owned riage, pose being to obtain signature to September 7,1933, the date of the obtained, which was dissolution under marriage by city divorce. The circumstances hereinafter detailed. Ardmore, Okl., Ardmore, was the par- Reaching domicile of the spent family home, ties at the time of transactions night involved. the other occu- alleged Plaintiff that she pants being plaintiff and defendant and their unmarried
905- Mexico, day Juarez, following and on re- who, having Fannie, Miss daughter, married. Of England he and Miss tonsili- operation undergone an cently tis, un- ignorant happenings plaintiff was 31, these morning The next sick. way, facts, in a casual til she learned the between conference of a result as the thereafter and soon *3 about October instrument and question has been this suit. No instituted by the lawsuit of this the basis forms validity di- of the raised as to the instrument The executed. Juarez jointly parties to; upon vorce, hence we are not called “Ardmore, Oklahoma. follows: reads as validity, any ruling t^ its and do make as made agreement 31st, This not do so. by and between into and entered to-wit: wife, Joiner, A.L. and reading Joiner of the think a casual We par- carry the wishes out issues', order to jury to the several answers of the submitted leaves the agreed that it is agreement, to this ties they, impression that any and all in addition Joiner, said C. M. -scrutiny, conflicting, that on closer but wife, L. on moneys settled heretofore evidence, the. light pleading in the and M.C. he the said Joiner, A. that quitclaim Joiner apparent disappear, and conflict will interest he all forever to now has findings will be found reconcilable.' acquire in and may hereafter alleged defendant asked her Plaintiff North place situated the Home will, joint join him in the execution of a Okla., Ardmore, Street, Washington n telling her that he would write such an payable on due and taxes now pay all and, strument, believing he had a written' L. A. the said pay to place, and to petition' signed the instrument. Dollars) on Hundred (Five was, $500.00 alleged also after the instrument month, first in- day of each twentieth written, defendant reiterated such statet 20th, payable on October due and stallment ments, only testifying, plaintiff but related day 1933, on the twentieth like amount and a in-, preceding writing the facts of the long as as the said thereafter month of each strument, alleged, saying having as lives, the said C. should t. A. Joiner signed faith defendant she instrument Joiner, L. A. the said die before M. Joiner reading having it read. The without amount, being pay said is to his estate then court, however, theories, submitted both estate, after funeral charge on first though support there no evidence in the above consid- paid. For expenses are second, e., representations i. Joiner, the eration, I, L. A. wife the said made were ment was defendant after the instru relinquish my hereby Joiner, M. of C. prepared. In our the of the property of C. in said participate right to apparent findings conflict in the above, as set out than further M. and is due to submission of the issues the said C. M. relinquish and relieve theory. By questions on the second Nos. to our obligation as and all 7, 5, the court submitted issues as implicit place trust marital relation agreements pri- the statements and made of his es- the remainder dispose of him to instrument; writing of the ques or to the our hands thinks best. Witness he tate as tion No. whether defendant re day date above written. this the and seal join quested plaintiff to in the execution Party of the First Joiner, M. Joiner, (Signed) C. will; 3, question No. of a agreed whether she Party the Second A. part, L. will; joint him to execute a Fannie Witness: Part. Joiner.” question No. whether she believed it was it; signed she joint ques a will when is that the instru- contention Plaintiff’s will; signed whether she would have joint on the tion No. it' awas agreed ment had known it was hand, is that she will. contention defendant’s other 4,2, and 6 were Questions Nos. with ref upon, and as execut- agreed the instrument theory is, alleged, the second erence to ed, property settlement. awas representations made as to statements plaintiff his from concealed prepared he by defendant after the instrur procure a divorce intention to ment. young lady still in her England, a Miss apparently conflicting findings As these defendant twenties, time served at the who reconciled, necessary we deem it are to to set out hours after stenographer, and a few testimony instrument, length securing the execution issues, which, controlling Ardmore, Dallas, parties on returned to left defendant substance, is as follows: On Juarez, Mex- and, days few went within .Okl., Ardmore, went where, pur- he September ico resided, purposes, for the family where a divorce obtained portedly glasses left his himself, agreeing day before, with his on the bus the stated pair used prop- regard to their his wife furnished him wife a settlement family occasion. erty. spent night writing in the After He witness testified home, very that he read it over did not mention his business until carefully to Joiner, Mrs. who said person it was morning. only other next alright; that he handed the instrument daughter, the time house at her, also glasses; handed her her put Fannie, Miss who was in bed sick from a on, them looked over the instrument operation day Being tonsilitis before. time, said, “Well, some where will I fully asked his counsel to state and com- sign it?” says, and I sign “I will it and the conversation between himself pletely sign my under name.” He testified that Joiner, and Mrs. and how he come to write glasses she had *4 on and looked at the instru- “Well, question, the instrument said: long over, ment enough to have read it but morning the next (August 1933), I said aloud; did not read it that out witness did her, ‘I want to you,’ have a talk with it, read it so that she could understand anticipate and she tried to what it was and she alright; said that copy it was that a about, said you and ‘What do want?’ and of the instrument was furnished her. Wit- well, always I I Lydia— called her said — that, ness testified after instrument was says, I ‘You are a fine woman and a fine written, daughter his Fannie witnessed the mother, respect you and I and admire same; that she was sick at the time and it) congenial, but have we never been we are room, a bed in adjoining an about four- compatible, not that is we look at life dif- distant, teen feet during the ferently, conversation impossible and it will be for us between Joiner; himself and Mrs. that happily aft- together.’ to live She said she un- being signed, er instrument, as above you derstood that and said ‘What do want ?’ stated, par- was taken into the room the says, settlement, and I T property want a ties, signed by and was Miss while settlement, ánd a settlement of our marital bed; not, the witness testified that he did relations,’ says, and she ‘That will be al- property tell his wife in owned, detail that he right,’ says, and I ‘How much?’ I asked thought but that she he great had a wanted, her how much she ‘Well, Lum, you says, and she deal more than he did Being have. if asked I any- know don’t need in his last letter her he stated that he was thing my always home’—she called me “busted,” virtually answered, “At one time says, much, Lum —she T don’t want we did, I think I because it looked at one time everything we need here.’ She had going like I was into the hands of a receiv- home, her own getting was about a $125 er”; asked, was “You have answered that month, and Fannie had a also nice income. detail; you you go * * * into did didn’t tell said, I T rights will release anything your property? about A. INo. have, may I might acquire, now or hereafter don’t think that was discussed. I don’t place in the home (in Ardmore), and will think was discussed about how mucn pay taxes, all the back which had not had, really property I I don’t believe it was.” paid, paying up taxes, all of the back signature getting After of his wife to * * * give her and would a $500.00 witness testified that he left said, T not month.’ She am used to that afternoon, Ardmore for Dallas the same much,’ says, enough I ‘You will have and days Juarez, three went and about work, you you and so will not have can Mexico, getting divorce,” “to see about a very easily, month give away a and $200 England and had left word with Miss before you you enjoy ought and that to have that, leaving Dallas if successful getting says it, much.’ She she didn’t need and divorce, her, he would wire he did settlement, then talked about this February her on wire and her, responsibility would lift off of September 8, were married in Juarez she said she understood says, testified that he had 1933. He been engaged ‘Lum, I don’t (the of them want chil- England Miss year, about a dren) anything to know about it. I may but did not tell anything about his said, ‘Yes, tell Fannie.’ I I think ought respect. intentions Fannie, tell because we will have get agreement. a witness to this get testimony We will The substance of Mrs. ’ * * * a witness. Well, Fannie as regard to the execution Joiner instrument gist is about the of it.” The witness is as follows: answering ex mentioned, a will never was parte interrogatories propounded he re- de- agreement writing fendant, duced the time, testifying to the facts lead- using daughter’s typewriter. his Having point, down to the she ing said: (Mr. “He t me; putting wasn’t fair about he never confidence in his make Joiner) stated he confided anything, told never take me he would I would take $500 that agreement. me. He wasn’t fair about wanted; make he would he what it, I anything didn’t un- know about didn’t four seven children will to the derstand me. He want- It wasn’t read to he it. other grandchildren, and one didn’t read told me' sten- it to me. What he England, include, Dea ed ographer, Miss agreement Being wasn’t in the I at all.” month. give $50 asked if agreed when he settle read, $500 he the contract nor did read didn’t ** * her, fair, month on not think it contract I didn’t read me. answered, either, thought telling I “I he was when he agreement, and didn’t fair, me I he was after No, fair with his children until anything about it didn’t know * * * and his property, he me he he told he learned was married. giving happy, all of children. say a word didn’t about going He was his will to his He said to make with me. wanting any settlement children any He didn’t before died. want up and make his estate he wanted to settle thought commotion after he died. I question, $500 me the his will. He asked fair; thought that agreement, I that was in the use, as I could be as much would he would make his thought he was fair until child- seven will to the testified, what he had done.” The witness grandchildren, ren four $50 and the *5 further, that, prior 31, 1933, August to he later stenographer, who month to his * * * separation, there had been no had never I wanted I stated that married. say heard separation; anything Mr. about a as very to will the rest little he as was * * * regard did not herself He property the children. to separated from him. Witness testified that to month, in addition if the asked *$500 could glasses,'and she not read without did oil already receiving from the what I was glasses not have she day on the in that sufficient, yes, runs, * * * I said and would through; glasses could read that her gave and his his will if he made broken; were pair that Mr. used a if Being asked property to children.” of her glasses old in writing the instrument. did not want that she it not a fact was questioned by She was her herself, counsel as fol- very witness property much for point: lows this my that he was “Sure, mind said, I had told me he was the will. He going to make “Q. your You deposition testified children, and I to the making estate his (Mr. Joiner) you what he told that why Being my mind.” asked had that going he was A. write? Yes. money, if him for more she did not ask "Q. you What did he tell going he was answered, “Be- enough, she was not $500 to write ? going A. He was to write a will making he was I know what cause didn’t girls the five and grandchild- the four away with it. got me do. He did that ren, and another, and that Eng- was Miss anyme settlement with He didn’t discuss land. rights, marital property rights or “Q. How much was get? she A. $50 anything what me about and he didn’t tell a month. nothing agreement, was rights or marital settlement about “Q. he, you that, telling Did after write testified, further, A, me.” The witness with out this instrument? Yes. suffering not she was that “Q. you it, signed At the time did what comfortable, life, was but necessaries you think it thought was? IA. I was rights. Being asked when she her wanted signing a will. agree- dissatisfied with first became “Q. you Had known that it was not answered, August she ment of you signed No, would have it ? A. sir. left, I after he- before read a week “About “Q. you know Did that within the next agree- noticed-what the agreement and days going he few was Mexico get was, things and noticed that ment No, a divorce ? A. sir. about, nothing I knew that in there “Q. you known pre- Had at the time he about”; nothing had said that she I that talked you sign sented instrument that daughter her first with Fannie in going get he was down there to a divorce, Being matter. regard to the asked she you signed No, sir, would have it? A. I always had the utmost confidence had not would not. fairness, she an- in Mr. Joiner you swered, “Q. known that “I had confidence him he Had in a week or money. going me matter that he giving not about He such a fair 9'08 you you signed find girl, preponderance have the evi- young- dence No.” A. the occasion instrument? the defendant 31st, of writing August the contract dated daughter Joiner, Fannie Miss 1933, represented plaintiff, substan- defendant, excerpts referred to tially, joint providing that it was a will she testimony, testified that from their that in case her death he would mother-, that her lived at Ardmore prior possession their' management of marriage to Miss father’s to her joint property death, until which her England never heard that she had time go would then to their children separated; father were mother and equal shares; death and that in of his case home on came to their her father she per should have month $500.00 day witness 1933, and on that life, remainder of her all the and that tonsilitis, and on operated property was be held her together until day fever; noon that 31st had about death, and go equal then to their children in sedative gave visited her a doctor ‘no;’ ‘yes’ shares? Answer Answer: put sleep; knew her which No. you 3: Issue No. Do find from a nothing having of her written father preponderance Au- evidence that she knew of it was the first gust 31, 1933, Joiner, agreed A. Mrs. L. up, he when woke her document, asked with the which she did while sign Joiner, join with him in the execution up bed; signed sitting when she of a containing provisions father, document, am asked her “What substantially Special as set out in Issue No. signing?” said, copy on he “There is a I 2? ‘yes’ Answer or ‘no.’ Answer: Yes. you your vanity mother’s can read Issue No. preponderance 4: Do find a .leave”; I the house in left ^.fter of the evidence that the on the secu’ring 20 or about 30 minutes occasion writing Au- contract dated make statement signature; *6 gust 31st, 1933,represented plaintiff, in presence mother in the of witnesses substantially, provi- that it contained the instrument; first regard to the she specified sions Special in Issue No. 2? 1933, learned, 1, about October ‘yes’ Answer or ‘no.’ Answer: Issue No. Being had in Mexico. married father you No. 5: Do of the find preponderance from a asked, you your anything tell “Did mother plaintiff, evidence that the Mrs L. (the instrument) what was in it ?” about Joiner, A. signing the dated contract “No, answered didn’t.” she August 31st, 1933, joint believed it was the you? “Q. it Did to A. She she show will of C. M. and herself? Answer that, a.will, thought it she told me ‘yes’ or ‘no.’ Axiswer: Yes. No. 6: Issue mar- didn’t read it until I heard he was I you preponderance Do find from of the ried.” plaintiff, evidence that the Mrs L. A. Join- asked, Well, you “Q. got angry Being at er, in signing question the contract in re- marrying? about A. wouldn’t him Who solely lied representations, any, on if angry? defendant, Joiner, it was joint ‘yes’ will? Answer or you “Q. you ‘no.’ Answer: you I asked didn’t? if A. Not No. Issue 7: Do No. exactly, find from a no. preponderance tiff, plain- the evidence that “Q. get mad at him You didn’t about Joiner, Mrs. L. A. would not have your divorcing married ¡getting mother? signed question the contract in if she had Sure, angry I was made about di- A. the known joint it was not the will of C. M. marrjage.” vorce ‘yes’ herself? Answer or ‘no.’ material foregoing is the evidence The Answer: Yes. Issue No. 8: you Do find bearing on of the instrument the execution from preponderance of the evidence that question. plaintiff, the Joiner, Mrs. L. A. would have refused sign to the contract The issues deemed material that were the defendant had told her go- that he was answers, jury, and their submitted the ing Miss Dea England? Answer length, here are set out at as follows: ‘yes’or ‘no.’ Answer: Yes.” pre- find “Issue No. 1: Do ponderance from a jury of the evidence on The verdict, returned a with all 31, 1933, questions the defendant C. M. except re- answered question No. 1. plaintiff, quested Joiner, court, the however, Mrs. L. A. to The over objection an urged by with him join joint in the execution of a to the effect that the (not will? Issue Do answered). incomplete, No. 2: verdict was same, received the jury disputed evidence, the de- answers the the for judgment rendered later have been issues Nos. 2 could fendant. the No. otherwise. Their answer to effect jury required the issue unanswered The plain- signing the instrument requested or not defendant whether to find representations, rely “solely tiff did not if on execution him in the join with plaintiff to any, Joiner, M. the C. opinion, This, in our joint will. aof will,” mere corol- joint was their is a bearing evidentiary fact simply an lary, previously deducible answers such into entered parties had the whether effect made to that, issues Nos. regarded court agreement. an prepared, after the instrument was agree immaterial, parties matter that the representations. defendant made such no nature, evidentiary in question was understood, As thus the answers court was committed no error hence in 6) However, (Nos. these -issues on verdict. receiving the are not in any their answers judg- conflict with for moved received, plaintiff verdict issue, and, fur- our other non judgment ment, filed also motion judgment for the rendered overruled, nished .basis veredicto; obstante contrary, we think court. On motion defendant’s sustained the court established, plaintiff’s and that case was judgment. judgment entitled to on the an- she was sundry ob- urges various 3, 5, 7, and 8. As swers issues Nos. plaintiff’s jections to consideration found issue No. These are propositions. assignments question, plaintiff and de- occasion detail; to mention too numerous agreement an ex- fendant entered into overruled, however, as we believe joint pro- containing ecute a have questions hereinafter discussed special substantially as set out in visions truth, assignment properly presented. e., “providing issue No. i. that in case erred effect that the court No. pos- of her death he would have refusing motion management session and of their verdict, presents fundamental error the opens death, time until which entire case for review. go equal then their children statute, (amended by article 2211 Acts shares; and that in case of his death 2211]), 77, 1 art. c. Ann.Civ.St. § [Vernon’s per month she should $500.00 requires mandatorily judgments that “The life, of her and that all remainder plead- of the court shall conform to *7 together be held the was to un- proved ings, of the case and the nature death, go then their chil- til her and verdict, any.” Meyer if the Henne & v. shares”; equal dren in in answer to is- Moultrie, 216, 607; 97 Tex. 77 S.W. 3 Tex. 5, that, jury sign- No. the found sue follows, page 828 584 note 15. It § Jur. instrument, plaintiff believed it ing the therefore, harmony judgment that a of out joint will of herself and defend- was the fundamentally with the verdict is errone- ant; they in answer to No. 7 found ous. signed in- not have the that she would We think it obvious that issues Nos. 2 if she had' known that it was strument 4, forms, presented pre- and cisely in different will, upon; joint agreed not the in question, requiring jury the same the 8, they No. that she found answer defendant, answer whether the sign have refused to the instru- preparation 31, of the instrument of had told her he was ment if defendant 1933, “represented to the substan- stenographer, his Miss going to * *” * tially joint that was it etc. England. questions nega- These were answered in the findings consistent with each These are tive, so, correctly and we think as the evidence, amply supported by other, are testimony of is Mrs. to the effect Joiner find- with other are not in conflict that, by prepared after the instrument was and, opinion, our established be- ing, her, defendant, he neither read it to nor did action, yond question cause of it, having she read but faith in judgment. entitling signed read; reading having or without it brief, words, say, in their for defendant other there was no evidence Counsel questions apparent is from these showing tending to that that “it show jury not find representation, prepara- that did made after the and answers instrument, guilty of fraud.” appellee tion it was or of the as to what conclusion, ines- of in our is So, is in view this un- The what contained. defend- respectively, capable jury properties convict involved. that, faith Plaintiff and bad wheth- ant of of (appellant) want candor contends wife to er his tested securing signature of laws Oklahoma Texas, of which she is the effect entitled to one-half of these properties; hand, guilty to find him fraud. defend- other “ * * * ant (appellee) contends wife The relation of husband bought by appellee, leases were conspicuously confidence is trust, one of M. Joiner, years C. prior three to his good faith requiring utmost coming payments to Texas. The dealings oth frankness in with each of the original price for and for leases er, appears it has where either the renewals were from separate his es- other, eq been a court false to community tate. -There law Okla- This uity appropriate will relief. afford So, homa. his wife had no interest Swearingen v. general doctrine. these bought leases when and never at 442, Swearingen (Tex.Civ.App.) 193 S.W. any time acquired any thereafter inter- 18); Montgomery Mont (parag. v. therein, law, est by operation unless ex- 581, 288, gomery, 41 139 P. Okl. cept as to such may interest as have cited. authorities been transferred to her contract.” contends, further, The record years discloses that over plaintiff is not entitled to avoid the instru prior for business rea- ment, signed in that she un sons, same defendant decided to his move fam- the belief that it was a der ily Ardmore, they where had resided as the result of a unilateral mistake. We many years, City, to Oklahoma do not think doctrine of unilateral Mrs. objected, reasons, among any application has mistake to the facts others, that her children and friends re- found, jury, as found in that However, sided at Ardmore. Mr. Joiner effect, the signing of the instru up took residence City, Oklahoma by plaintiff superinduced ment de first, seems, very and at much dis- faith fendant’s bad of candor. want pleased because of the refusal Mrs. Ardmore, to leave and filed suit But, correctly can be divorce, on the ground by refus- se answers ing, guilty she was of abandonment. This issues, Nos. and 6 ma ries dismissed, suit was and thereafter defend- consideration, entitled to terial and acquiesced ant seemed to have in the sit- we are in error in the view that Practically uation. all the time since leav- disregarded they should be (cid:127) ing family, stated, defendant has in favor of on the an rendered engaged been in business in and out of is swers to the series City, places Oklahoma and at several Nos. then sues we think Although Texas. living together as a mistrial declared be should wife, intimacy husband and cause irreconcilable conflict between usually characterizes *8 relationship, groups of the to these answers two rupture there was no or ill-feeling en- reasonably of issues. If can be gendered between them. Defendant’s in- the answers of the to issues abate; terest family did not he 2, 4, 6 Nos. defeated al gave support such assistance toward their action, evidently leged cause of as able, he was as maintained an court, by held the trial we think it can irregular association correspondence. reason, said, greater also be during period It was that defendant 3, 5, 7, their answers issues Nos. and acquired 13,000 title to about of acres oil her contention and established entitled Texas, leases on lands in East in 1927 A sought. her to the relief made verdict and, begun development, October, their up findings, both establishing of and de 1930, in bringing succeeded in what is now action, feating necessarily of a cause con called the Oil Field. the At in- irreconcilable incongruous tains ele suit, stitution of this his wealth was es- ments, obviously such a verdict can $1,000,000, be timated to about consist- the judgment. not be made basis of Trad chiefly ing of oil represented runs that etc., ers’, v. Co. Emmert (Tex.Civ.App.) unpaid money purchase sold, the for leases S.W.(2d) companies, oil stock several in a min- Thus, brought ques are corporation, ing property residence regarding Ardmore, 445,000 tion the of parties, interests the Dallas and acres
9H spouses are di- equitably divided when the Mex- of Republic Durango, of in the state the vorced, question is: are the What ico. unequal division? justifying factors an What, is: question presented The holds, in. Supreme The of Court Oklahoma in these own any, Mrs. interest does effect, proper- such the division of Oklahoma, sec- properties? The statute of equal, the com- ties should as under for 49(59, provides tion Rev. Laws. community munity property of laws the property separate disposition of the the states, Texas, property as unless an such grant- is spouses divorce of the where a equitable unequal justified is division of ed; disposition provides the also by of or reason of the fault grounds, parties jointly acquired by the property spouses. parties the seemed one of following marriage in the during their proposition. in accord on this Coun- to be property, wheth- language: “As to such page 13 (appellant) sel for personal, real or as shall er brief, say: is “So it seen during acquired by parties jointly by or tested the laws of Texas whether marriage, the title thereto whether Oklahoma, property the laws of court parties, of said either parties owned on par- division shall make such between jointly was in fact owned and to may appear just and respectively as ties equally par- be divided unless one reasonable, by property division of the A ties was at fault.” similar statement kind, by apart setting the same rule made counsel for de- oth- parties, requiring one of the brief, (appellee) page fendant 31 of the pay may- be er thereof such as sum “ * ** prop- follows: the correct as proper just just and to effect a fair and (cid:127) being osition under the laws Okla- division thereof.” homa, property when has been accumulat- Supreme Oklahoma, Court of ed efforts of the husband Thompson Thompson, v. 70 Okl. wife, equity, dividing a court of 1037, 1038, prop P. likened this class of property, parties when are di- erty community property vorced, may award less than half of such states, community property saying property guilty to the husband or wife “The regards property that: statute ' n question, ’misconduct.” The there- persons of married falling into two fore, is: Does the record disclose an separate property classes —the of each equity in favor of the or a spouses property and the which has part justifying fault on the by the accumulated business side of the unequal properties? an division of these marriage. prop This latter character of not think We do so. On very erty, conception similar interview, their last recorded de- community property community fendant said to his wife: fine “You states, regarded held mother, and a fine respect woman and I species ownership. of common This it, you and admire but we have itself, is shown the statute where it congenial, never been we are not com- speaks the property ‘acquired by patible, that is we look at life different- parties jointly during marriage, whether ly, impossible will be us par the title be in either or both of said happily together.” live power ties.’ No one will duty of the court in dissolving the authority So, of Mr. him- on the marriage relation to divide the common self, the head and front of his wife’s of- above-quoted property, and the statute al possessed fending was that a dis- *9 beyond go lows the court this and incompatible or nature with his position party to either give under certain cir Although this rather a belated own. portion separate of the prop cumstances existfed, incompatibility discovery, yet erty effect, of the other.” To the same one than it more the fault of it no Tobin, 12, Tobin see v. 89 Okl. P. 213 other, truth, in was not a was of all, an unfortunate condition. at fault record, to dis- in our fails If, Thompson Thomp- in stated v. as equity either an existence acquired close son, during the supra, or a fault on the of defendant favor being by in regarded as held marriage “is justify a court plaintiff, that would part of ownership,” very sim- species of common equal her an division depriving community conception prop- ilar states, properties. these community property to be erty of 912 were lived The East Texas oil with leases Mrs. as husband and Joiner wife; acquired purchased jointly with funds never did cohabit with her at all par from marriage on; of the Oklahoma ties, that time that she never did anything invest and at the time of these whatsoever assisting towards held, him in purchased Supreme making money ments was with which he Oklahoma, “by species com Court of the East Texas leases.” * * * ownership, con similar in
mon Reduced to simplest its form, defend- community property of the ception community property ant’s contention is because Hence, states.” under circumstances, refused to move announced follows under the doctrine from Ardmore to City, Oklahoma she for- Harley (Tex.Civ.App.) v. in McDaniel right feited all to share subsequent these 323; Thayer (Tex. 42 v. Civ. S.W. Clarke acquisitions. what duty was at Just 1050, App.) the Su 77 S.W. affirmed time, is, that that whether to re- move or 1274, Court, preme 81 Tex. S.W. main, did, as she express we opinion; properties acquired in so Texas however, appears that, although at first parties. jointly owned displeased, acquiesced defendant in the situation. While it is true that contends, however, defendant that did not regularly thereafter reside with oil and the invested these leases funds the family or live in the therefrom, resulting belong to de wealth intimacy life, of married yet they main- separate right, in his and that fendant tained irregular an correspondence, asso- has no interest whatever therein. plaintiff This contention ciation, and a cordial relationship. Greet- length forth set ing his wife on the visit, occasion of his brief, appellee’s pages 67 and on defendant addressed “Mr. further testified that follows: Joiner her, “My dear,” embraced and kissed her. up Oklahoma he went By voluntarily absenting himself from City try retrieve his financial situa home, deprived himself ; City to Oklahoma that he moved tion wifely of the ministries that otherwise go; L. A. Mrs. not but that plaintiff would him; bestowed go; did not want that she good that she was a good wife and mother away move would not Ardmore was attested So, defendant. in its last her children were. That all the where analysis, which of spouses these perform- one; except married children were greater ed the service to family boys girls; and five he had two society, the wife who boys maintained a were married and both the four of home and haven for children grand- married, girls were and at time children, where in sorrow and misfortune them He none of said Mrs. had left Ardmore. she could mother them even “as a hen gave L. A. as her rea gathereth her chickens under wings,” wanting son for and to leave Ardmore or the husband and father who out City go Oklahoma that her friends open, conditions, battled overcame difficul- in Ardmore and her were there children were ties and amassed a material fortune? them; she would not leave Each, think, appro- his and her City established an office in Oklahoma priate sphere activity service, per- and after she refused to move Okla formed well. City divorce, homa he filed suit grounds So, harmony 'she desertion because views, with these move judgment would not homa from Ardmore to Okla reversed, court below is City; this suit was filed and L. A. is here rendered for Mrs. City Oklahoma but was against dismissed. That Joiner, can- any money he did not have celing at all when he instrument dated Ardmore City, went from recovery Oklahoma and for the of an undivided money but did make some half of and singular effects, Oklahoma all and real City, leases, bought and there personal, possessed by 7, 1933, the so- plaintiff and leases; called East Texas September Mrs. the date .Joiner any money put divorce, did not alleged into those leases the same anything and did not contribute properties jointly acquired by during whatso parties, *10 purchase ever towards the marriage, those properties leases. wherever said may situated, That from the time he went be Okla and in whatever form City, especially may homa exist, from the the time investment now changes that he filed place date, up suit for have taken divorce since the above August 31, 1933, any he never time and the case is remanded to the trial proper, rected verdict would parti- equal fair and a effectuate court to tion of conflicting on the end, and the was as evidence properties, and to pivotal issue, not in re- the did err court pleadings and by supplemental appropriate plaintiff’s judgment for fusing motion show, the may court and the proof, parties the However, is obstante this non a veredicto. partitioned to be properties ascertain the matter, opinion consist, negligible and the authorized what and of by 6082, including deleting be corrected all references to 104, arts. title however, funda- rights assignment presenting No. 4 as the 6109, R. S. 1925: C. Company, error. mental Production of defendants Hunt Gant, Hunt, H. Walter should L. opinion, original As shown the nothing to the respected, recognized contrary 2, 4, special Nos. and 6 as construe issues shown, forth as set representations referring to statements and answers, respectively. plaintiff made defendant after the 31, 1933, pre- instrument of was Rehearing. On pared, the because evidence failed to reversing the that, in contends any disclose that repre- defendant made rendering arrd court the trial judgment of regard sentations in to the matter after one- for plaintiff in favor of judgment preparation the instrument, of the we held during the acquired properties half of findings, that the issues, in answer to said defendant, we plaintiff and marriage of otherwise; could not have been and, fur- property without deprived ther that said findings, in view of the a him law, and denied to process of due undisputed evidence did not conflict with contrary State by jury, trial findings 3, 5, 7, 8, issues Nos. Tex. art. (Const. Constitutions Federal that we held plaintiff entitled judgment. 7, 14). 19; Amends. U. S. Const. §§ view these holdings counsel for de- decision that our think it We obvious say: fendant have this to “We do not group or predicated fact not on was know where the gets court authority its jury decided of facts taken from state that the meaning of the question is predi- us; contrary, but, was on the defendant, whether the 'after prepa- that, jury in our findings cated instrument, represented ration of the to the ” imperatively required rendi- plaintiff, got etc.’ authority We our judgment. such tion of attributed, meaning from plead- issues, ings that framed the to which the that we erred It is contended referable; charge was unambig- error assignment of plaintiff’s considering language in uous which these issues were the action complaining of No. court phrased, and ju- from the answers of the her motion refusing grant ry thereto. Issue 2No. reads as follows: veredicto, because non obstante judgment preponderance “Do find from a nei We not briefed. assignment was defendant, evidence that the on the occa- assign considered discussed nor ther writing sion the contract dated Au- ob ment; disposing various gust represented to the con urged by defendant jections it was a will providing, etc.?” assignments and sideration “it,” The word used in charge, refer- questions we held that propositions, instrument, and, course, red to the there presented, and properly had been discussed “it,” e., instrument, no i. until writ- things, connection, among other in this inescapa- ten. This conclusion we think truth, assignment No. “In said that (cid:127) Issue No. 4 submitted ble. the identical refus erred in that the court effect issue, and has the meaning; same non judgment plaintiff’s motion for ing answer of the to issue No. assignment No. veredicto and obstante to the effect plaintiff, signing did not in refus that the court erred representations rely solely judgment on the plaintiff’s motion for ing - necessary corollary, if, after the verdict, present error.” We fundamental prepared, representa- instrument state partially in error above were was made defendant to ment, assignment No. tion it is obvious present signing in- well not be said not taken cannot all, strument, solely, error, error either relied fundamental sense, upon representations, the evi- (Vernon’s the statute Ann.Civ. under found, non 2211), obstante discloses and the dence St. art. not authorized unless di made. veredicto *11 S, interpretation gave 7, 8, 3, the we the and place, So much for answers to issues Nos. however, Counsel, say, made in this “In to issues. connection the first these re- the Appeals of following the additional observation Court Civil mis- quotes They say, the jury . “This of gard finding the matter: the answer Special language says, mean Issue interpreted has the No. 3. court (cid:127)court 3, ‘As to issue jury that, No. the something, neither the trial court which found the any occasion lawyers question, plaintiff the on either side nor nor and de- fendant entered juryman argument agreement misunderstood. The into an to ex- joint will, jury, the the ecute argument provi- before trial before the a the containing argument court the substantially the sions Issue No. as in Special Court set out 2, Appeals anywhere sug- of Civil did not etc.’ The language exact Special is, gest the the Issue finding Court Civil No. 3 ‘Do find from Special preponderance a Appeals that No. 2 in Issue of the evidence that on 31, way, remotely, any- August any even plaintiff, referred Mrs. L. A. happened Joiner, agreed after the thing whatsoever with the preparation making Joiner, join In contract.” with him the execu- criticism, joint counsel for defendant tion evi- containing will pro- dently forgotten argument have oral substantially visions Special as set -in out ” counsel for when cause was Issue No. 2?’ submitted, per- and also have overlooked pretend We did quote not the matter language contained tinent mentioned, misquote any- hence not point, states brief. On this the brief thing, simply interpreted special is- plaintiff alleged when defend- “While sue as jury, answered and the join came he her with him ant asked meaning thus precisely stated us is joint her in such will told he was same as the matter had been stated as going to write such will and that she be- counsel been, insists it should have joint it signing, lieved was she was counsel do not contend to the contrary, alleged petition also that after it the written he reiterated such was pointless. hence this criticism is statements. It is further said “The Court however, testimony, she testified Appeals of Civil finding erred its preceding writing facts of the in- ‘jury did convict defendant of want of alleged strument as but said that she had faith, candor and bad in securing the in him faith and went and signed ahead it signature of his wife to the was.written, and nothing it was after the effect of of guilty which to find him However, was written. ” this, fraud.’ With reference to coun theories, though court submitted both there say: sel “Where is there justification By on the Ques- no evidence second. for this statement? The word ‘candor’ 5 and Nos. he submitted tions appear not anywhere does except case, in the prior as to issues the statements made nor is the word ‘bad instrument, Question writing of faith’ in this case opin other than in being join requested to whether he No. court, ion of the this, and in addition to will; Question in such 3No. it is the first time that we seen in have an being as to agreed whether she with him opinion court that a want of can will; joint Question to execute a No. 5 had anything whatsoever to do with .dor being as to whether she believed it was the finding of Many people fraud. it, joint signed Ques- will when she candor, lacking who guilty are not tion No. to whether she would As far concerned, fraud. as bad faith .is signed if she had known it was not there finding that con Questions will. Nos. 4 and 6 .a victs the defendant of bad faith. Bad theory with reference to the second faith is another word for fraud. Bad alleged as to his statements after he had faith not jury. submitted to the Bad written the instrument.” - appear faith ings, not plead does either in the think, above, is sufficient to ac- findings the evidence or the imputation quit having this court of jury. merely Bad faith is a conclusion interpretation given an invented ing a mean- puts upon that the court the findings the issues not insisted questions 3, answer to and 7.” presented plaintiff. counsel for original opinion, As stated in the the ma- Counsel insist that holding we erred in was, terial involved whether or was entitled the action of defendant in obtaining *12 found, The to is- jury land. in answer instrument to the plaintiff signature the of plaintiff have re- sue No. would We fraudulent. was sign fused to the instrument if defendant inescapable that conclusion think the marry had told her of his intention to Miss in con- jury, considered findings of the England. It is evident Mrs. upon which the evidence with nection were chiefly was interested in the future wel- defendant predicated, show children; fare of her therefore her wil- faith, of bad guilty lacking in candor lingness agree to joint to a will in their that defendant finding a to tantamount reasonable, perfectly interest but we signa- obtaining the of fraud guilty think unreasonable to assume that she 'ques- the instrument of his wife ture have would executed instrument subject treat a means “Candor” tion. designs furtherance of the of Mr. be out- fairness, impartiality, and with marry to obtain a young divorce and synony- veracious, and is frank, spoken, woman, thus introducing stranger to as- moral- describing terms with other mous rights sert the of a wife in his share of the and “fraud” faith” ity. The terms “bad property. may Fraud be nega- committed synonyms of dis- and also synonymous, are tively positively, as well as for whether faithlessness, perfidy, infidelity, honesty, way other, committed one or the the same unfairness, jury found etc. may produced. result be plaintiff and de- the occasion exe- agreement to into an entered fendant cute a think duty We was the .it defendant Admittedly, the instru- joint will. to have made a full disclosure to this defendant, which by prepared ment fifty-two years’ trustful wife of standing bore abso- signature, his wife’s he secured of his intention to marry divorce her and will. to a lutely resemblance the other woman. The relationship of signed the that when found also instrument she husband wife is ordinary not an rela- joint be the it to believed tionship, but is one greatest confidence defendant, and would herself will of intimacy. The lawbooks character- it was known sign had she refused ize a concealment of this kind as tanta- testimony was Her joint will. not their mount active p. fraud. R.C.L. she trusted effect to the 66, announces following § doctrine: signed the any questioning without may “Fraud suppres- committed prepara- its finished after he instrument tion, believing sion of truth as well as the sug- will, and to be their falsehood, gestion of equally and it is com- nei- defendant preparation, its after petent for the court to relieve against it this In her. explained it to read whether it is ther situation, committed in way one or the irresistible implication is other. The one negatively, acts the oth- defendant findings convicted positively; er calculated, in dif- secur- faith in ways, bad produce and of ferent of candor want same result. to the in- his wife signature The former as well ing? the latter is a vio- finding guilty him strument, principles in effect lation of the good faith. It proceeds fraud. from the same motives and is at- consequences; tended the same defendant addition, think deception injury may great be as concealing from uncandid ” * * * one case as in the other. materiality to her. of considerable a matter say, Ap- “The Court of Counsel Civil Eng Miss he and testified peals holding that the erred East marry for at Texas engaged had land purchased joint- oil leases were with funds 31, 1933,their prior to year least acquired in ly during Oklahoma the mar- plain when consummated marriage to be parties,” riage of and then make the settlement with tiff obtained absolutely “that there not one charge, his wife. He went a divorce and Ardmore testimony in the entire record that purpose word for no on this occasion ” * * * finding of fact. justified this property settle obtain than other is made in the criticism face of un- securing signa his wife’s This ment, evidence, contrary, none to disputed goodbye, bade ture paid consideration Mr. be'the last time that the that should intending that wife, oil leases in East Texas were from meet as man and for the funds acquired in utterly Oklahoma failed disclose parties, under the regard marriage hence anything to his inten wife state, Supreme of that as said Miss statute Eng- divorce tion to *13 * * * “ n state, by species Court of were held cile the State of Texas. Defend- this, think, joint ownership,” of represents and we ant court the while would he true whether the funds were ac- was still living Oklahoma, in the State of quired as the result of the and efforts labor and before coming to the State of Texas he of the other. not think one or We do the purchased several thousand acres of leases laws of either Oklahoma or Texas on what is now known as the East Texas * * * water, require wood, a wife to hew draw field, etc.; oil any that he never at grub, sow, trade, plow, reap, herds, tend designated time place of residence and buy, sell, wells, etc., sink oil entitled to be domicile plaintiff and at defendant to share in the from these accumulation Dallas, Texas, any or place other Texas, discharged marital sources. Her duties are and never attempted to any make such spheres, appropriate in other and different designation after plaintiff the failed and re- motherhood, recognized and as wifehood fused to change place her of residence country the over. from Ardmore, Oklahoma to Oklahoma City, as above alleged, and say, knowing court is not Again “The counsel plaintiff’s set determination stating ‘while it is true not to move justified in Ardmore, Oklahoma, from regularly the defendant did not thereafter that defendant any never at time plaintiff suggested plain- family the or live reside with tiff that life, yet they her intimacy remove in the of married residence and domicile correspondence, Dallas, irregular any an Ardmore to maintained or ” city other town relationship.’ Texas, of and a cordial and association that in this, say: truth and fact the plaintiff counsel “What domicile With reference and * * * actually defendant during showed all of the record time from 1923 1933, up the wife had abandoned after the date of the settlement any mentioned, relation- above had never been husband there the residence home and them, plaintiff in the form domicile ship not even between correspondence.” and defendant con- of a tinued to be and Ardmore, was in Carter County, Oklahoma, and remained the same think, evidence, for- undisputed up and day including the 31st of August, had that Mrs. the conclusion bids Joiner place A. D. At another 1933.”. his an- husband,” repeatedly as “abandoned swer, after alleging refusal Mr. argument. counsel stated move from City, Ardmore Oklahoma matter, for regard not so alleged defendant that “from up said time by him in dismissing the suit filed after to the time of the execution of the con- before, City many years he con- Oklahoma tract (contract hereinabove set out of Au- Ardmore his before to make tinued as home, gust 1933),plaintiff and defendant never of his recognition continued the and any at time together lived or co-habited as relationship down to marital wife, man and but defendant in order to parting with Mrs. 1933. In try keep peace family to- in the occasion, continued Mr. on that daughter his support plaintiff in her a-t they other and residence kissed each testified that Ardmore, Oklahoma, practical and for all tears, connection but stated shed purposes intention, continued maintain disclosed to his resi- that was dence domicile of their marriage never meet wife, he and she would Oklahoma, the State city and in urging and wife. again husband as Ardmore; day and that on the 27th quoted, counsel for defendant last criticism December, 1930, purchased defendant or overlooked their own al- ignored either place home Washington Street, known number proof. as 601 North In order to combat the legations and City plaintiff, of Ard- that their domicile contention more, County, Oklahoma, Carter changed to Tex- fur- had from Oklahoma same, Oklahoma, plaintiff any nished never as, invoke the laws of and to answer, purchase time of said defendant, home de- original in his second^ except home, sired in said “That the said defendant and the elsewhere alleged: any married, plaintiff alleged and defendant never at time desired January plaintiff to be lived the thereafter other home, place except together of husband and wife said and said State home * * * place plaintiff until Oklahoma considered represents plaintiff and this and members of the family, residence, home, never at lived in the as the time domicile Texas, place State of or had their home or domi- where the and defend- life, yet ir- married maintained an home, nei- residence had their ant correspondence, association, regular any time ever at nor defendant ther relationship. making of cordial up to date thereafter or intended contract, discussed ever discussion, In the course of the room house, residence place, any other opinion, we original and in this deemed *” * * home. to be duty plainly legal our to write as to the equal- testimony the defendant Joiner, effect conduct of Mr. *14 testified, ‘in ef- more, explicit; he concealing in ly, if not from Mrs. his inten- Joiner home and, his fect, marry again, Ardmore he considered tion divorce her that and to contract, jury, agreeing to the date after from 1897 found 1933; same had the preparing that of a in and August execution he. thirty years and having her evi- number for execute instrument in telephone However, say Ard- city directory of dence. we wish to in behalf listed in the was more. family pri- of Mr. that the facts showed that his intimate touching As Joiner kind, or in' lie was relationship, Mrs. consid- writing to Joiner erate, Lydia,” in and wife and solicitous for his chil- her “Dear addressed dren, Nei- bringing matters said: in oil of business discussion purchased money wealthy, disturb he becoming let field and you nor I ever ther you Ardmore, love, going splendid to let wife I am not for his a home our see going expensively, am help it. I and furnished was liberal worry if I can sug- children, soon, any or a giving demands with all the each you real runs, work, (cid:127)monthly pro- allowance oil you out from to lift gestions stated, handsomely hope support of Mrs. Further, “I for the vided he do it.” assured, daughter, worry, and their unmarried but rest longer will no Joiner anything stenog- if But Mr. his Fannie. you will be taken care Joiner marry, mar- rapher, being engaged to that Mrs. He testified saved.” Joiner him, except when rarely he wrote 'to when obtained riage ever to be consummated sick, that but and divorce property of the children settlement with some a wife, refer- writing; only much given was not his mission Ardmore she from his home was, as “our first the home at Ardmore to remove the red to occasion Ardmore”; e., Mrs. occasion when impediment, on an i. secure such he evidently knew was sick defendant wrote He settlement. Joiner would call a up every during his night; was informed of intention Mrs. Joiner home, was again, wife her and she would spell of sickness to divorce document, kind, attentively; him very sign whether waited refuse one a he or the one she that he had room in the house that he said was executed Ardmore; thought sign- occupied when in that Mrs. that she she was testified ing. Ardmore; very much he concealed Mrs. beloved So which, their, life, opinion, plans, far in our furnished long married so remember, grounds for the cancellation he could neither ever said sufficient other, under the circum- paid word document obtained an unkind tribute, stances, whether the one defendant extraordinary never this “There woman,” executed, or one said she and never a will be better for, signing, in either thought she was under no circumstances would full case, required faith disclosure. say good against a harsh her. It fur- word appears gave thermore length, have written at unusual We power attorney him a act for doing, justified feel so view of the separate community making a tax income rehearing in the criticisms motion for report. relationship This down continued go deeper questioning than the mere they parted to the moment at Ardmore conclusions. correctness our Wheth- intended, strong er not as the lan- So, we conclude that admis- imports, charged defendant’s guage the court is with fully pleadings testimony sions misquoting announcing the record and con- statement, justified opinion testimony word of without one clusions in court, de- justifying the effect while entire record such con- (after re- fendant fusal of Mrs. not thereafter In our would be abso- clusion. court, appellate move lutely to Oklahoma for an indefensible family, taken, City) regularly position to mis- reside in quote to bolster order record, intimacy conclusions with the or announce live evidence. supporting We without criticisms, in order hence open, to these taken, position for the bare our reasons ex- rather the record gone into tensively. rehearing have grounds urged All considered, finding no rea- duly decision, mo- original change our son to tion overruled.
Overruled. W. A. Curtsinger, and I. Johnson J. Angelo, appellant.
of San *15 Aldredge, Madden, Dallas, Shults & appellee. METHODIST UNI EVANS v. SOUTHERN LESLIE, Chief Justice. VERSITY. appellant, Evans, Herman instituted 1484. No. this suit against the Southern Methodist Appeals of Eastland. of Civil Texas. Court University, appellee, to recover certain Sept. money sums of paid as tuition some years three or four attendance a student Rehearing 22, 1935. Denied Nov. of that petition institution. The long is sets forth somewhat detail his reasons institution, matriculation and his purposes plans degree, major- to take a music, ing in For purposes etc. of this decision, unnecessary it is to state in detail allegations the various petition. of his say it to Suffice that when the cause came special on trial court sustained exception plaintiff’s petition. to the On his amend, refusal the cause was dismissed was entered for the defend- plaintiff appeals, ant. The insisting the court committed fundamental error in said rulings. exception sustained was that
plaintiff’s cause of action was not commenc- prosecuted years ed and within two accrued, same and that the same was therefore barred. order to reach a correct conclusion point presented, it becomes necessary to determine whether the suit one for damages plaintiff by reason of his having been alleged induced fraudulent representations enter into a contract re- him, sulting damages or whether the suit one for rescission aof contract alleged fraud. induced is well The law settled that one make is induced to a contract who de a choice and fraud has of two ceit remedies discovery of may the fraud. He af-