Tucker v. Slovacek ( 1950 )

LESTER, Chief Justice.

Appellee filed suit against Mrs. Bertha Tucker and husband for partition of Lot C-2 in Block 13 of the Chamberlain Addition to the City of Waco as joint owner, and alleged that the property was not susceptible of division in kind and asked for the appointment of a receiver and prayed for an accounting of the rents collected by Mrs. Tucker. Geraldine D. Cunningham, joined by her husband, and Alois Slo-vacek, Jr., the two children of plaintiff and Mrs. Tucker, intervened in said cause, alleging that they were the joint owners of said property; that said property was bought for their use and benefit; that the cash consideration paid at the time the deed was executed was paid out of a trust fund belonging to them. Mrs. Tucker also made the same allegations. They pleaded an express, resulting and constructive trust, and also alleged improvements made in good faith.

The evidence shows that the appellee Alois Slovacek, Sr., and Mrs. Tucker were married in 1918 and were divorced in 1937. She married Tucker in 1945 and was divorced from him in 1948. She will be referred to as Mrs. Tucker and the children as intervenors.

The record does not disclose the exact date, but subsequent to the time the appel-lee and Mrs. Tucker were divorced he threatened to file suit against a man for alienation of his wife’s affections, and the claim was settled for $5000. After this claim was settled he presented a claim for and on behalf of the two children, inter-venors herein, each of whom was then over the age of nineteen years, and on application of the appellee their minority disabilities were removed on or about June 17, 1940. After said removal order was made, and on the same day, the claim was settled for $6000. The lawyer retained the sum of $2000 as his fee, and out of the $4000 remaining $1200 was paid to Alois Slovacek, Jr., and $1200 to Geraldine. The appellee received at least $1200, and he testified that Mrs. Tucker received the other $400, which she denied. The $1200 that Alois, Jr., received was deposited in the Mercantile National Bank of Dallas and joint control over the account was acquired by appellee, Mrs. Tucker and Alois, Jr. Geraldine’s $1200 was also deposited at the same time and in the same hank, with joint control to be exercised over said account by Mrs. Tucker, the appellee and Geraldine. Mrs. Tucker, on or about June 8, 1940, made application to the' Home Owners Loan Corporation to purchase the property in question for a total consideration of $2750. Mrs. Tucker tendered a deposit of $50 of her individual funds with her application, an additional $637.50 was to be paid as a down cash payment and for the balance of $2062.50 she executed a note payable in monthly installments, running through a period of fifteen years. On June 25, 1940, Mrs. Tucker, by warranty deed, conveyed to appellee an undivided one-half interest in said property, with a recited consideration of $10 cash and other valuable consideration, and the assumption iby the appellee of .the note for $2062.50. Mrs. Tucker and the intervenors attack this deed, alleging that by reason of threats made by the appellee against Mrs. Tucker, she was deprived of the free exercise of her will through fear, and also pleaded that the consideration expressed in said deed was never paid.

Upon completion of the evidence, Mrs. Tucker and the intervenors filed a motion for an instructed verdict, which was overruled, and the court submitted the case upon special issues. The issues and answers returned by the jury are as follows:

“Special Issue No. 1: Do you find from a preponderance of the evidence, if any, that the deed from Home Owners Loan Corporation, dated June 17, 1940, in evidence before you, and the title thereby conveyed, was conveyed to and received by Mrs. Bertha Tucker (Slovacek) for the use and benefit of her children? Answer: ‘Yes’ or ‘No’. Answer: No.

“Special Issue No. 2: Do you find from the preponderance of the evidence, if any, that the plaintiff, Alois Slovacek, prior to the execution and delivery to him of the deed dated June 25, 1940, knew that the property had been purchased by Mrs. Bertha Tucker Slovacek for the use and benefit of her children? Answer: ‘Yes’, or ‘No’. Answer: No.

“Special Issue No. 3: Do you find from a preponderance of the evidence, if any, that the $637.50 of the cash consideration recited in the deed of June 17, 1940, was paid out of funds belonging'.to the Slova-cek children? Answer: ‘Yes’.or‘No’. Answer: No.

“Special Issue No. 4: Do you find from a preponderance of the evidence, if any, that the consideration recited in the deed from Mrs. Bertha Tucker (Slovacek) to Alois Slovacek was not paid? Answer: ‘It was’ or ‘It was not.’ Answer: It was.

“Special Issue No. 5: Do you find from a preponderance of the evidence, if any, that at the time of signing the deed dated June 25, 1940, the defendant, Mrs. Bertha Tucker (Slovacek) was in such fear of the plaintiff by reason of threats made by him that she was deprived of the free exercise of her will in relation thereto? Answer ‘Yes’ or ‘No’. Answer: No:

“Special Issue No. 6: What amount of money, if any, do you find from the evidence, if any, that plaintiff, Alois Slova-cek, Sr., received for the benefits of his children in the Collie settlement? Answer in dollars and cents, if any. Answer: $1200.00.

“Special Issue No. 7: What amount of the sum received for the benefit of the Slo-vacek children by the plaintiff, Alois Slo-vacek, Sr., has been paid and delivered to them by the said Alois Slovacek, Sr? Answer in dollars and cents, if any. Answer: $2400.00.

“Special Issue No. 8: Do you find from a preponderance of the evidence, if any, that plaintiff has. received and converted to his own use any part of the funds received by him for the Slovacek children in the Collie settlement? Answer ‘Yes’ or ‘No’. Answer: No.

“If you have answered the last preceding issue ‘Yes’ and in that event only, then you will answer the following issue:

“Special'Issue No. 9: What amount of the funds received by the plaintiff for the use and benefits of the Slovacek children out of the Collie transaction has been converted by the plaintiff to his own use and benefit? Answer in dollars and cents, if any. Answer:'None.

“If you have answered Special Issue 1, if you have found any amount, then you will answer the following issue:

“Special Issue No. 12: Do you find from a preponderance of the evidence, if any, that the Slovacek children, with their own funds, have made permanent and valuable improvements upon the property in question? Answer ‘Yes’ or ‘No’. Answer: Yes.

“If you have answered Special Issue No. 12 ‘Yes’ and in that event only, then you will answer the following issue:

“Special Issue No. 13: Were such improvements made by the Slovacek children made by them in good faith in reliance upon the statements to them by their mother that they were the owners of the property in question? Answer ‘Yes’ or ‘No’. Answer: Yes.

“Special Issue No. 14: Do you find from a preponderance of the evidence, if any, that said improvements were made by the Slovacek children with the knowledge and consent on the part of the plaintiff, Alois Slovacek, Sr? Answer ‘Yes’ or ‘No’. Answer: Yes.

“Special Issue No. IS: Do you find from a preponderance of the evidence, i'f any, that the intervenors, Alois Slovacek, Jr., and Geraldine Cunningham, have had and held peaceable, exclusive and adverse possession of the property involved in the suit, in person or through their mother, paying the taxes thereon «before they became delinquent, for a period of five years next preceding the filing of this suit on January 3, 1947? Answer ‘Yes’ or ‘No’. Answer: No."

No additional issues were requested by either Mrs. Tucker or the intervenors nor did either file any objections to the charge of the court. After the verdict was returned they filed their motion for judgment non obstante veredicto and their amended motion for new trial, each of which the court overruled, and Mrs. Tucker and the intervenors have appealed.

By several assignments of error they contend that the court erred in overruling their motion for an instructed verdict, rendering judgment against them and overruling their motion for new trial, because the undisputed evidence, the greater weight and overwhelming evidence and the preponderance of the evidence shows that funds of the intervenors were invested in the property and the record title thereto taken in the name of Bertha Tucker to be held in trust for their use and benefit.

If there is sufficient evidence in the record to support the answers of the jury to the effect that the property was not purchased for the use and 'benefit of the in-tervenors and none of their funds were invested in the purchase price of the same, then they are not entitled to have said property impressed with a trust, either express, resulting or constructive, by reason of any of the above grounds. The appellee testified that he paid the $637.50 out of his individual funds and at the time he paid the money and at the time he received the deed to an undivided one-half interest therein he had no knowledge of any representation on the part of Mrs. Tucker to the in-tervenors that she was buying said property for their use and benefit; that he refused to pay the $637.50 until he had some evidence of his interest in the property; that his refusal took place in the presence of Mrs. Tucker, the real estate agent and the lawyer, and that he did not consent to pay out his money until the real estate agent suggested to Mrs. Tucker that she execute a deed conveying to him an undivided one-half interest, to which she agreed, and the lawyer told him that would protect his interests. The real estate agent testified that he was representing the Home Owners Loan Corporation at the time of the transaction and it was consummated in the attorney’s office, and further testified:

“Q. State your name. A. Thomas E. Keahey.

“Q. What is your business? A. Real estate.

“Q. How long have you been in the real estate business ? A. About thirty-five years.

“Q. During that time were you with the Home Owners Loan Corporation? A. Yes.

“Q. During that time did you become familiar with their methods of making loans? A. Yes, sir.

“Q. Mr. Keahey, do you remember a real estate transaction in which the Home Owners Loan Corporation sold, or agreed to sell, to Mrs. Bertha Slovacek, along sometime in June, 1940? A. Yes.

“Q. Did you handle that transaction for the Home Owners Loan Corporation? A. Yes.

“Q. Did you prepare the papers that went into the Dallas Office on that transaction ? A. I prepared the sales application ; of course, they prepared the deed and deed of trust and other papers in the Dallas office.

“Q. You prepared the application? A. Yes, sir.

“Q. Who did you negotiate that deal with? A. With Mrs. Slovacek.

“Q. Where was it finally consummated ? A. In the lawyer’s office up in the Medical Arts Building, I 'believe it was.

“Q. Who was present at the time? A. The lawyer, Mrs. Slovacek, Mr. • Slovacek, and myself.

“Q. You four? A. Yes, sir.

“Q. Relate to the jury the circumstances in that office that morning when you four were present with reference to that transaction. A. When I went up there I brought the papers with me, I found Mr. Slovacek there, I didn’t know why because he hadn’t been mentioned in the deal up until that time, but he took them and began reading them all over, I supposed for the purpose of advising her about it, ’but when he got through he says T don’t see my name in any place’. I thought, well, it wasn’t supposed to be. He says, Tf I put my name in it I want a showing for it.’ He says, ‘These papers will have to be changed, can’t you — speaking to the attorney — can’t you add my name in here?’ I says, ‘No, that won’t do because we are not allowed to change these papers in any way whatever if a change is made it will have to be sent back to the Dallas Office and that will change the whole complexion of the thing, we will have to make out a new application, a new sale, which they , might refuse, they might not accept it, they had the option of doing either, and it would take a week or more to get it out; and I made a suggestion, if you all are agreeable, if we go ahead and close the sale as it is — speaking to Mrs. Slovacek — if you will make him a deed to an undivided half interest in the property that will take care of the situation and I can go ahead and finish it right away. I says, ‘Will you do that?’ She says, ‘Yes, I will do that’. Mr. Slovacek talked to the attorney about it and the attorney says ‘That will be all right’. I says, ‘It’s a much simpler way to do it, I know we can do it this way and we might possibly fall down doing it the other way.’

“Q. Did you prepare that deed for this one-half interest? A. Yes sir.

“Q. Did you do that at the request of Mr. Slovacek? A. It was at the mutual request of both of them. When I suggested we make a deed to an undivided half interest I turned to her — she was sitting on my right and Mr. Slovacek over here— and I turned to her and I said ‘Is that agreeable with you’ and she said ‘Yes’, and I asked him what about it, and before he answered he talked to the attorney about it and the attorney said T think that will be all right’ and all agreed to go ahead and do that.

“Q. How much was paid that morning, if anything? A. He paid me the consideration, the balance of the consideration it called for, the sum of $675.00 or in the neighborhood of that.

“Q. Who paid you that money? A. Mr. Slovacek, in addition tó the $50.00 that had been put up as a deposit.

“Q. Who put up the $50.00? A. Mrs. Slovacek.

“Q. And he paid you the balance that morning? A. Yes sir.

“Q. Did you get the deed signed by Mrs. Slovacek? A. Yes sir.

“Q. Is that the deed you have reference to? A. Yes sir.

“Q. You took the acknowledgment? A. Yes sir.

“Q. Where was this deed executed ? A. Down at her house.

“Q. Did you take it down there for that purpose? A. Yes sir.

“Q. Was there any conversation between you and Mr. Slovacek at that time? A. Nothing except routine matters in any ordinary, case like that.

“Q. Did she at any time while this transaction was being negotiated state that she was buying this property for the children? A. No.

“Q. Were either of the children’s name ever mentioned in your presence ? A. No.

“Q. Were any of the children present at any of the transactions? A. No.

“Q. What did Mr. Slovacek say when he found out his name wasn’t in the deed, the original deed, prepared by the Home Owners Loan Corporation? A. He says, ‘I don’t see anything about my name in any of these papers’ and he says, 'If I put my name in it I want a showing for it’. He says, ‘Can’t it be done?’ I says, I told him ‘No, we couldn’t add to it at all’, as I told you awhile ago.”

Intervenor Alois Slovacek did not testify in person or by deposition as to an agreement to purchase the property for the use and benefit of the intervenors. Mrs. .Tucker testified, in answer to questions propounded to her by her counsel, as follows :

“Q. Did you have an agreement with Mr. Slovacek that you all would buy this home 'for the children? A. I don’t remember an agreement with him but I knew I was buying it for the children. I was buying it so they could save some money but I saved it for them.

“Q. Did you tell him along from time to time it wasn’t his and that it belonged to the children? A. I told the children it was theirs all the time.”

Intervenor Geraldine Cunningham testified that her mother told her from time to time that the property was purchased for the use and benefit of her and her .brother; that she married on the day the property was purchased and after living in Wichita Falls for a short time she and her husband moved to Waco and lived in one of the apartments in the house approximately three years prior to the filing of this suit, during which time they paid rent. The appellee testified that it was the agreement between him and Mrs. Tucker when the property was purchased that it was to be paid for from the rents collected. Mrs. Tucker testified that she lived in the house and rented the apartments and collected the rent; -that she collected from sixty to ninety dollars a month and paid the note of $2062.50 within about seven and a half years.

There áre other facts and circumstances in the record which tend to support the answers of the jury, but in view o'f the foregoing facts, we are of the opinion that the answers of the jury are amply supported by the evidence, and that the trial court did not err in overruling either of said motions complained of.

Point 15 contends that the court erred in rendering judgment for the ap-pellee for an undivided one-half and for Mrs. Tucker for an undivided one-half interest in the property and ordering sale and partition thereof between them, because it is shown by an overwhelming preponderance of the evidence and the findings of the jury that the intervenors made permanent and valuable improvements upon the property in good faith, relying upon the representations of their mother that they were the owners of said property, said improvements having been made with the knowledge and consent of the appellee, thereby creating a trust relationship and title by parole and creating an estoppel. The- record clearly reveals that the real gist of this suit was a contest between the appellee on one hand and Mrs. Tucker and the intervenors on the other, and not one between Mrs. Tucker and the intervenors. The jury found that' the property was not purchased for the use and benefit of the intervenors and that at the time the deed was executed conveying to appellee an undivided one-half interest therein he did not know that it was purchased for their use and benefit. There was no finding as to the amount or the value of said improvements. No issue on the question was submitted and none requested and no objection made in this respect. And the same circumstances exist as to estoppel against the appellee. The improvements were made subsequent to the purchase of said property. The fact that they were made with his knowledge and consent, standing alone, would not of itself create an estop-pel as to him. This proposition is controlled by Rule 279, Texas Rules of Civil Procedure, and the many cases there cited. If the intervenors preferred to rely solely upon their allegations of ownership and waived their claim o'f improvements made in good faith, that was a privilege afforded them. We therefore overrule the foregoing proposition.

It is contended in points 16, 17 and 18 that there are irreconcilable conflicts in the various answers of the jury. There is no conflict in the answers wherein the jury found that the property was not purchased for the use and benefit of the intervenors and the appellee had no knowledge of such when the deed was executed conveying to him an undivided one-half interest therein; that the cash consideration paid at the time said property was purchased was not paid out of the funds of the intervenors and the consideration cited in the deed executed by Mrs. Tucker to appellee was paid, and that she was not in such fear, of the appellee by reason of threats made by him that she was deprived of the free exercise of her will when she executed said deed. ' The rule is well settled in questions of conflict that answers to all the issues must be construed together as a whole, and that when so construed they admit of more than one reasonable construction, the trial court has the power to apply that reasonable construction which is deemed proper and it is the duty of the court to reconcile apparent conflicts in the answers to special issues if it can be reasonably done in the light of the pleadings and evidence. It is also the duty of the court in construing said verdict to disregard immaterial issues. Texas & P. Ry. Co. v. Gillette, Tex.Civ.App., 100 S.W.2d 170, 175; First National Bank v. Rush, Tex.Com.App., 246 S.W. 349; Yarbrough v. Dallas Railway & Terminal Co., 128 Tex. 445, 97 S.W.2d 169; Hartford Accident & Indemnity Co. v. Harris, Tex.Civ.App., 152 S.W.2d 857; and the many cases cited in the above authorities. It appears to us that the trial court followed the above rule in construing the findings of the jury and did not err in doing so/-

Proposition No. 23 asserts error on the part of the trial court in not granting them a new trial on account of the 'argument of opposing counsel wherein he criticized Mrs. Tucker and the intervenors and their counsel because of their failure to produce a certain witness. The court qualified the bill of exceptions to the effect that no objection was made at the time said argument was made and he was therefore afforded no opportunity to instruct the jury not to consider the same. We are of the opinion that the argument was not so inflammatory that its prejudicial effect, if any, could not have been removed by proper instruction of the court, and in the absence of an objection until after the trial, said error was thereby waived. Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054, 1056; Texas Indemnity Ins. Co. v. Bonner, Tex.Civ.App., 228 S.W.2d 348, 352; Baker Hotel of Dallas, Inc. v. Rogers, Tex.Civ.App., 157 S.W.2d 940, 944; First States Life Co. v. Mote, Tex.Civ.App., 110 S.W.2d 591, 592; MacFadden Publications v. Wilson, Tex.Civ.App., 121 S.W.2d 430; Classen v. Benfer, Tex.Civ.App., 144 S.W.2d 633.

We have considered all other errors assigned by the appellants and they are hereby overruled.

Finding no reversible error, the judgment of the trial court is affirmed.