*1 (Tex REPORTER SOUTHWESTERN holds, on probate ground error, run, under which defendant but, that court tbe fact in face collusion, reversible and of fraud by appel- proffer proper made evidence tendered and evidence received where the liability company bonding on that lant and fraud is not sufficient to issue of raise actually ceased, com- act this bond had missioner does not manding alleged. collusion justify appellee in de- kept for alive bond be Appeal Court, Coun- District Harris thereby period and months another of twelve ty; Boyd, Ewing Judge. appellant annual liable for render premium. this try and Suit to title John Carmichael against Maggie others others. opinion erred the trial It judgment awarding From a an undivided law, cause and in its conclusions premises half interest in and ap- in favor of rendered and here reversed Maggie other half interest to Wil- defendants pellants. husband, ordering prem- liams and her sale of Reversed rendered. partition against adjudging ises for costs they appeal. Affirmed-. Bracewill, Houston, appellants. S. for J. Niday Houston, appel- Carothers, of & lees. al.* et al. v. WILLIAMS et CARMICHAEL 8575.) (No. LANE, brought by is a J.' This suit John Appeals Carmichael, ett, Texas. Galveston. (Court Louis Lov- Civil Rehearing Denied Jan. 1924. July, 1922, Nov. and Lawrence Lovett 1925.) husband, Maggie Williams and her Williams, and Robert C. Adams convey- <$=>262(1)—Land wife Husband 1. McNally possession to community prop- Frank for title and presumed spouse ed to lot north lot 8 in block 9 and the half of erty. county, Harrisburg, 15 Tex. After the town of or wife husband Land community presumed allegations to be formal usual- relation in deed recital trespass try title, in absence suits contrary. showing to joined alleged hers forma, Williams, pro husband, C. W. <$=>692(1) Requisites of Appeal error 2. claiming Robert Adams are exception suppression of line bill of questions administrator’s sale for under an sued stated. proposed suppression of Isabella deceas- estate exception Bill of present alleged must, They questions reversible and is said sale was ed. line of expected questions an- error, void, passed thereby, show intended that no title and as swers. are the sole heirs deceased, they the owners are taxing Appeal error —Error property. of said ap- for first cannot be costs raised allegations foregoing were followed pellate court. allegations attacking certain other and orders entered in decrees Notwithstanding provision St. art. Rev. prem- 7753, ises, himself whole claims where plaintiff on is entitled to 1917 and 1918 in michael, estate of Isabella Car- plaintiff premises, part of entitled to well as as the sale the land appellate complain of costs cannot purporting to be a virtue sale trial, against him, being court moved unless taxed in said of the court estate and of an order assignment presents to retax costs approval of sale in trial court. error They alleged, things, among other <$=>935(3) Appellate Appeal error appointment parti- assumes that order of Louis Carmichael adminis- supported by pleadings. tion was manner trator an unlawful 23d Appellate assume that court will December, 1918, appointment partition was sale of land for order of court’s by the court without proof supported pleadings, in absence of parties character of the inter- notice matter not raised in trial where estate, and soon ested after obtaining there- recites that order where defendants, intent and with party application of to suit. was made Rehearing. suit, procured the removal On Motion involved- in appointment administrator of said <$=>1056(3) Appeal error reversi- —Not Snell, George the father of E. the defend- of ant sought evidence to exclude ble Maggie Williams, as such adminis- prove certain if insuf- introduced to issue property by him and the sale trator issue. ficient to raise They try land, such administrator. title collaterally exclusion evi- In suit to void, tending in that Snell was never attack decrees sale was dence Digests Key-Numbered in all see KEY-NUMBER topic other cases Indexes <Sfcs>For March * Writ oí error dismissed for want *2 Tex.) v. WILLIAMS CARMICHAEL (268 S.W.) good administrator, Maggie legally appointed but acted in Williams as such claim, appointment faith in her efforts to collect her said if it be conceded that su'ch and,' judgment property procuring legal, after and was him said still the of sale approval same, after void, said of she and the order was in that the under George Snell, administrator, diligent ef- he sold was void because it authorized made private long public purchaser forts for the a sale to be made either time to for for at find a property price asking did direct at a fair the manner which before .and sale, sold; an order ous tive plaintiffs of it but that in vari- should be it void was also ways discouraged prospec- hindered and between because of a ’fraudulent collusion purchasers buying Maggie property. from said and purchaser Wil- said administrator sale; liams, jury The who said was was before a on the 11th day July, of parties that said no dili- administrator exercised After the their gence property, evidence the court but that instructed the in the sale of the days plain- return its awarding verdict after the within two sold tiffs an property grossly undivided one-half in the a interest issuance of the order of sale at Mag- inadequate sued for price, and to the defendants and that as no con- fact a gie husband, paid prop- C. W. sideration whatever was for the the upon Thereupon, other erty. They that, though pray one-half thereof. and it be should undisputed evidence, judgment was reason that such sale was void awarding plaintiffs rendered vided collusion; equitable an undi- of such fraud and property one-half interest in rights sulting said a re- established as to the defendants Williams other undivid- trust because such fraud. therein; ed one-half They interest and it fur- was was that defendant Adams as- injunction ther ordered that the theretofore serting property, some claim the the nature against McNally issued constable them, be made of defendant attempting and that which was unknown perpetual, being apparent it McNally was was constable property to the court that the possession to execute a writ incapable partition kind, proper- is ty possession said place and to upon application should Judgment of the defend- property, prayed for title partition. ants be sold in the to and alternative to have established of the property, All adjudged equitable rights the suit were against plaintiffs.' injunc- and an judgment McNally From restraining executing plain- so rendered from said tion appealed. tiffs have possession. writ of agreed It was by general and shown that Defendants answered demurrer Archie Car- michael, tiffs, purchased whereby exceptions, grandfather special father and and numerous they excepted parts paragraphs of to all became the owner of property probate the plaintiffs’ petition proceedings involved in the suit which attack the 23d August, 1886, Mrs. Isabella estate of that he was collat- attack a common source of title. such judgments upon judgment upon the orders and eral attack of the court court was based county, theory undisputed probate a the that the of Harris evidence show- jurisdiction competent purchase at the by ed that adjudicated property such said Archie matters as. Mrs. Isabella .Carmichael, claim, appellees Isabella Carmichael. in the estate of whom under denial, wife, property specially They general and that the in con- was his also made community troversy substantially, was alleged, ael, that Louis Carmich- pur- suit, wife husband and at the time of its was at the time of death appointed chase regularly administrator of ’ husband, leaving surviving him his died who and that the estate defendant administrator her wife, presented and that the wife owned undivid- to said Williams therein, interest ed one-half interest by $310 claim of passed plaintiff Maggie estate, said admin- claim was which said probate proceedings disallowed, sale made in rejected and that istrator thereafter, by required estate Carmichael. form manner and judgment law, That, ;(1) in a court contend: it; since n agreed competent her said was common Carmichael was the title, up- claim; source of it was certified was incumbent that said judge approved show on such Tex.; county, there- source them common before court of . recover, and that was Louis Carmichael refused could after the said presumption estate, made; prop- (2) that no that the act as administrator to further n community property by erty because was it was removed as such administrator and was the George relations of thereafter stead; regularly appointed in and Isabella his Carmichael Archie Carmichael Snell (Tex. 268 SOUTHWESTERN REPORTER . because michaels all his tiffs and ael, boys undisputed by any because 35 cumstance. can that, rence the owner of the undivided property of that she and Isabella were that she was Mrs. tentions in conveyed to Archie. known John years of to the the boys the date of the knew the years August, michael and Isabella michael were of the two Was day wife absence of just a sumptively every night conveyed by the wife of community property. 1923, they of been We shall Mrs. S. Again, if the J. C. son ^[1] the wit, August 23, August, August, years; that she knew Isabella Archie and Isabella alleged by age bé grandsons, administrator he he knew across the street from a little fellow about it shown that at Archie was 23 on that date It is well settled the whole Lovett, indulged testimony Milby testified that the the sale was, on the 23d 1883, years home; August, was the grandmother on the same age. of the age at the be conceded that C. Woodard'testified that she and the spouses. any the order named. were married on probate proceedings 1886? became the undertake to same time So, for a to defendants the deed Carmichael years husband and wife recital at plaintiffs, if family; as matter life; youngest his older brother must have mother of some time sons of fraud committed years prior it of these Carmichael to either long something Isabella administrator, The witness or Lovetts, time he was she before the son was of her If -then it was shown property Archie, ever since he the date Carmichael age presumed date. time; community question day August, one of other one of the Carmichael’s had lived and Isabella Car of the two Lovett answer these were Isabella Carmich- he 9 old timers witnesses relations, Archie and played together; by the deed Carmichael the Archie deed Of the cause, one-half years old, and *3 death, on the 23d where born to knew the Car- over 24 property pre that she law; Then, property under Carmichael; illegal, Carmichael, community property then youngest husband 23d August 23, John testifying, to be daughters plaintiffs, to Archie .there Snell, about property 23d any showing tions as to the still in fact arises: day estate, stands orders there; plain- she must house years Law- were lived Mrs. Car- con- was Snell. and an had day 23d cir- the before the the we of the house before no We think (3) assume that 40 24 or in to of A. I plication for administration mind after she treat their mother like those of that poor ter? this, pute raised August, 1923, the from the ticulars last mentioned. fusing been attacked they properly disregarded property as indicated: which called the defendant witness, which Carmichael, was a court of orders and ceedings tiffs estate of Isabella Carmichael could have whether the court only debts. court in the estate of stituent owned sale was Mrs. the orders and “Q. “Q. “Q. “Q. We “Q. This [2] In the trial of this appear undivided one-half interest following questions, property judgments cannot Carmichaelwithin 5 at all cannot be attacked soul that the attempted Is the issues You were Is Will A. I do not think You I have death ultimately thereby property? to submit the refusing years brings it not a fact and counsel for members died? A. I jury by instructing would have let the worms eat that when alive, procured by I the collateral attack made on such her have been born 39 you say until took surely judgment, the facts question say, you question, and, and that testified, the mother directly old property n or in the competent jurisdiction taking estate, and, a fact that entered in the matter of the Louis made the remark all us to had mind involved in the because I do irregularity question taken care judgments A. was. resulted subject when the oldest of submit to them erred do; that it was filed 30 she died she left no do stated show No, of Archie and questions sought care of her like jury. and did her all died, court erred administrator, George fraud on the personal which when Issabella died not know. Isabella collaterally days a consideration therefore the court I never cause year The as to whether the then irregularities, etc., refusing in the sale testimony you family surviving,, question a did boys while its orders as it was made approval . taking them sale to these or after her death long ' were Williams as get I you the estate of years property probate pro- illegality therein was without dis- did had thought know. would as he to Archie. asked her err not?” to submit boys answered the the your ap- pay Isabella it in part mother, n * * daugh- before years to be about ques- born, prior pass mis- days case par- her con- did, like out the my re- of , a ? fendants leading Tex.) if party interrogating her, ed had he been say event, ders and ant claims the whole erred in costs,” tion ship mit counsel to ask the the n asking judged tiff shows parent courts that before one can in the utes, himself entitled to recover estate of Isabella for tack on the orders and v. bad been fifth presented tiffs Carriage the court purpose And it has also been held Cormick motion ment fendants nesses. by consider a been constitutes reversible error. against him, Adams was made in the court below to correct suppressing answers thereto. what answers were “To which any, From what While [3] Plaintiffs Monroe, the action foregoing -questions probate proceedings in first time in the the ruling.” the matter is 48 S. does appellants’ proposition they it is recovered rejected, and, sustained, is erroneous as in counsel for complain- that we think all the questions tending it has been to retax (Tex. purpose the costs objected, by v. Therefore that it taxing sued propounded Co. v. judgment, appellants by provided that, complaint counsel for sustaining whole Bank line 'article their answer now insist present Civ. Tex. shall we 888; witness fails to one-half bill of recovered one-half of proposed questions the costs must assignment Rosette, permitted However, have (Tex. because the not, appellants App.) questioning by 7753, American supporting this court as it recover such the appellate repeatedly the costs expected appellate premises, of such error made for reversible error in insist them. The court ad appellants show that he made a defendants’ had been exception already questions. Civ. 19 S. W. show what and answers plaintiffs excepted court did judgments, court costs and no effort Revised Civil Stat- “where thereof, 20 Tex. Civ. given it is stated: against plaintiffs. . the probably them. testimony pffered S. W. the bill impeach asserted App.) would have that, refusing .CARMICHAEL Express questions were counsel for court will not from the wit- matter of ask plaintiffs’ evidently is when a objection present case, held being should have called 869; taken trial 1039; as not err in unable to 106 S. W. questions, part action By objection appellate them, made in continue it is and the said or- injured defend- upon by thereto the de filed in owner excep- Bimel plain court. Co. v. taxed judg- after their part, App. ask- per- and- Tex. (268 Mc- the the ap- de- at- it, of Maggie Williams, i.W¡) we below 175 S. W. 737. der citals of the error was any proof, that to record proof. reasonable plemental no property in that the him the dered; v. ord of' that no such support.’ Bros. 51 Tex. 46.’ ment of upon which he troversy, and therefore the trial court erred true, in the estate of Isabella procured Williams. greaves Printing sumptions plain ing was appellant strongly S. action that there by the record. Civ. court to order a sale of v. WILLIAMS “ “It “ “ By appellants’ In the ^[4] W. 282.” by any assignment partition. the support State, contention so ‘In ‘The time, ‘The quote the court judgment following *4 discloses, nothing upon App.) shown, there 143, we appearing By the sixth decreeing. so that construing trial yet, In C. petition original petition presented presumption party complaining circumstances and is, upon application think, 15 Tex. below from the the sixth discovered 113 W. will be Floore v. judgment appealed transcript upon motion support presumption to the committed, 175 S. were the in judgment show that court, unless very court after the trial of the judgment rendered, controversy, n n action of the court to the shows that the fraud recital: pleading this relies to show the error. S. court; the court order proposition, we had where, at the time * ^[*] application pleadings familiar rule an order indulged third the face of the Co. contrary, W. 736. in the incapable 317; Lindly court does not furnish such not called of what we have absence n ” partition, think following pleadings authorizing proposition contrary ordered sold Morgan of error filed is to the 750; is in a material made, Wiggins *’ and this is correct the court that the new The matter must be is to proposition they (Tex. petition sufficient might, we must assume that motion for new the error is Wertheimer v. appealed from, here, to establish the fact in Arnold conveyance favor of in judgment and the mere fact effiqct so in the absence Carmichael, was favor trial, being authorities: (Tex. we made. It is true property court be found- the court below Civ. view v. far as v. partition, indulged part if the the burden it is insisted before legal showing petition the attention must assume fact that Bank proceedings in the court same. Un Lindly, that all of particularly cause, v. had complained Civ. App.) just said, terms was ren- purposes disclosed Hockney we there overrul- of Mrs. the sale tending the re in con alleged him at in the before App.) Laird every (Tex. judg- or of right com- Mrs. Har- trial sup- rec pre- find 102 its is (Tes; 268 SOUTHWESTERN REPORTER complaint. al- We have overrule We not ad- AMERICAN RIO

ready evidence was & IRRI- GRANDE LAND GATION v. CO. BARKER. the trial. missible even (No. 7247.) Having no the conclusion shown, reached reversible error (Court Appeals Antonio. Texas. San of Civil affirmed. Rehearing Denied Dec. Affirmed. 14, 1925.) Jan. tion on our reached v. We therefore did not its be probate collusion evidence would facts uitable R. v. tent ed Court ministrator liams, volved ing fact conveyance as we have reached the conclusion attacked do tioned before whom ministrator’s hearing in this tiffs er had trator the title to to acts Williams as Mrs. Williams such Carmichael, sale; Refused. It We held that ^[5] Mrs. Williams. Stanger disregarding of. Fisher v. Snowball, verdict A. in the sale of seems and collusions title Among proceedings stated adjudged proceedings by part, intervened, land err suit was On Motion for the collateral as the alleged, we still hold rehearing received' error. Mrs. Williams in trust in favor of to we erred in raise 107 (Tex. suit, showing further conclusion to deed assign have other have recede from instructing rights of culminating said land. court was same is refused. Am. all' means Tex. to to Wood, below, orders and eauge plaintiff; Civ. the land could and tendered did land been filed their motion for re- the deed testimony obtained for the them, and, things, appellants, presents pass the sale issue of St. which are entitled land proceedings, App.) at the means of was tried attack absolutely, held holding Rep. Rehearing. 81 S. defendants for holding the district the administrator innocent to Mrs. Tex. fraud, adjudged Mrs. heirs between the of said adminis- through that under no other administrator’s be decrees offered for the the fraud and that the court 596; obtained title attempting attempted land reason holding, but, as we 199; above collaterally did not S. W. 931. fraudulent tended to to complain- issues in- culminat- to return sale and Supreme purchas involved Nuckols the mo- to compe- not or Moore plain judge holds men- have Wil the conspiracy err ad ad eq L. made after that sold to cancel actual dence introduced. 4. No. buying public, discretion. between amendment of 1824, action of court. reviewed, petition alleged tion. tionary cancel 3. deed, amended and spiracy, acy conspiracy. istence acy file amendments conspiracy ing ings pleadings has largely discretionary with rescission constituting conspiracy petition. Conspiracy Appeal Conspiracy Appeal general conspiracy among Pleading <$=>245(4) Pleading <$=>236(1) Filing Conspiracy Pleading <$=>248(13) In Under Permission Burden of Petition Filing of amendments under Rev. St. art. 27, need dispose stating to defraud been abuse of discretion some deed, different may conspiracy. action to rescind purchaser’s value, purchaser’s deed, with held petition alleging unless there Rev. to defraud amendment to the jury clear be mad'e after rests on conspiracy evidence that such stating recover to defraud not pleaded by and to state that such <$=>18 defendants to defraud pleadings error error to lands off the has been selected and some evi- St. art. public rule abuse of to facts judge. file amendments will not recover proper action to rescind action to rescind plead facts party damages, <$=>959(1) <$=>948 introduced. Allegations for sums far above their No. —Evidence recover defraud has plaintiff. facts constituted a con- abuse of discretion held —Amendment constituting conspiracy purchaser. rests on reviewed, Petition jury original 1824, defraud different cause 27, discretion. need not state been as assailing constituting to show facts more pleaded damages, allegations judge. Cause proper —Burden contract, pleadings has facts damages a clear of amendments —Permission party assailing largely amendment held to toas alleging plaintiff. been petition held unless existence swindle action. grant constituted action for show ex- to cancel contract, contract, amended abuse conspir- *5 plaintiff, conspir- selected original may discre- detail, plead- show- of ac- prove toas facts with rule sell be to topic Bigests <gc=For Key-Numbered other cases see same all KEY-NUMBER Indexes