108 S.W.2d 297 | Tex. App. | 1937
This suit was instituted by the appellee, E. R. Williams, Jr., in the district court of Deaf Smith county against the appellant, Lora Williams, in which appellee seeks in his own right to cancel and annul a deed executed by E. R. Williams, Sr., who was the father of appellee, conveying to appellant 320 acres of land in Castro county. The land was the separate property of E. R. Williams, Sr., and the *298 deed referred to was executed on the 12th of September, 1933. It was in the ordinary form of a warranty deed and recited as consideration the sum of $1 and love and affection. Appellant was the second wife of Williams, Sr., and the appellee is his son by a former marriage.
The grounds upon which cancellation of the deed is sought are that, as originally written, and when signed and acknowledged by Williams, Sr., the deed contained a clause, limiting the interest conveyed to a life estate, and, when filed for record a short time before the death of Williams, Sr., this clause had been eliminated or blotted out by the letter "x" having been run over it with a typewriter.
Appellee alleged that he was the only child and heir of Williams, Sr., who died on or about the 1st of October, 1933, and that the effect of the alteration of the deed was to change the life estate actually conveyed to an absolute conveyance in fee simple. He charged that the alteration was fraudulently made by the appellant or by one R. A. Walls, at her instance and request, and with her knowledge and consent, and without the knowledge or consent of the grantor. He further alleged undue influence and persuasion exercised over Williams, Sr., by appellant, and prayed for cancellation of the deed and for possession of the land.
Appellant answered by general demurrer, general denial, and specially denied that she ever, in any manner, altered the deed or that Walls acted as her agent in doing so, but alleged that about September 21, 1933, her husband, the grantor in the deed, procured R. A. Walls to blot out and eliminate the clause in the deed which limited the conveyance to a life estate, and that he did so because, after the deed was executed, and being in poor health and appreciative of her ministrations in his extended illness, he changed his mind, and that the alteration was made at his instance and request, and without her knowledge.
The case was tried before the court without the intervention of a jury, and the court overruled the general demurrer of appellant and found that the deed was altered in the manner above indicated after it was executed by the grantor, without his knowledge or consent, but at the instance and with the knowledge and consent of appellant, before it was filed for record in Castro county, and entered judgment, canceling and setting aside the deed, decreeing that appellant took no title and acquired no interest in the land by reason thereof.
The case is presented here upon three propositions, the first two of which assert, in substance, that the appellee, having brought the suit in his own right and as an heir of the estate within the four-year period allowed by law (Vernon's Ann.Civ.St. art. 3325) for administration upon the estate of the grantor, and having failed affirmatively to allege there was no administration pending upon his estate, and facts showing that no administration was necessary, failed to plead cause of action, and the trial court committed reversible error in overruling the general demurrer.
It will be noted the petition nowhere alleges that no administration was pending upon the estate of E. R. Williams, Sr., deceased, nor are any facts alleged showing that no administration was necessary. The prayer is for a cancellation of the deed to appellant, and that appellee have judgment for possession and writ of possession to the extent of his interest.
In the early case of Walker v. Abercrombie,
In the opinion of the Court of Civil Appeals in the cited case (
We conclude that, in overruling appellant's general demurrer, the trial court committed error for which the judgment must be reversed.
The first and second propositions of appellant are, therefore, sustained.
Under her sixth proposition, appellant complains of the action of the trial court in permitting the witness, W. H. Russell, to testify concerning a conversation which he had with appellant about the deed, upon the ground that the witness was, at the time of the conversation, attorney for appellant, and her statements detailed by him were privileged as being communications between attorney and client. The testimony shows that appellant consulted the witness, who was a practicing attorney, concerning some life insurance policies of her husband, and that, in these consultations, she asked the witness to prepare the deed, which he did, on the 11th of September. The next day the witness went to the home of appellant and her husband and had him sign the deed and took his acknowledgment to it. At that time the clause limiting the conveyance to a life estate was in the deed and had not been obliterated or blotted out. The witness testified that a short time after the deed was executed, appellant came to his office and asked him what would happen if the life limitation were crossed out of the deed and it was recorded, and he proceeded to detail the conversation had between them concerning the matter.
From the record before us, we are unable to determine whether the communication was privileged or not. Article 713 of the Code of Criminal Procedure provides that an attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which comes to his knowledge by reason of such relationship. This provision is a statutory declaration of the common-law rule of evidence and applies to both criminal and civil cases. It applies during the existence of the relationship and also after it has ceased. Standard Fire Ins. Co. v. Smithhart,
If one knowingly attempts to employ counsel for an illegal purpose, he is not entitled to the protection of secrecy; but if, without knowing the contemplated action is wrong, or if he has a doubt in that respect, he consults an attorney and procures his advice, and, then, upon being informed that his contemplated acts are *300
wrongful, he desists and does not carry them into execution, he is entitled to protection. These are matters for the court to determine upon the question of the admissibility of the testimony and if a prima facie case is made of contemplated fraud or criminal design, the testimony should be admitted over the objection; otherwise, objection to it should be sustained. Taylor v. Evans (Tex.Civ.App.)
Under the seventh proposition, appellant assigns error of the trial court in admitting, over her objection, the testimony of the witness, Russell, concerning a conversation which took place between the witness and R. A. Walls, in which he stated Walls detailed to him some facts concerning a portion of the land involved, to the effect that Walls had received a portion of it for his participation in the alteration of the deed. Under the record before us at this time, we think appellant's objection to this testimony should have been sustained. It was hearsay and not admissible for the reason that it had not been shown, except by Walls' statement to the witness, that any conspiracy existed between Walls and appellant concerning the alteration of the deed. The rule in this respect is that the acts and declarations of co-conspirators are admissible against each other where a prima facie case of fraud is established, though they were not made in the presence of the party affected thereby. Johnson v. Lagow (Tex.Com.App.)
It follows from what we have said that, in our opinion, reversible error was committed by the trial court in the respects mentioned, and the judgment is, therefore, reversed and the cause remanded.