Stuard v. Vick , 1928 Tex. App. LEXIS 841 ( 1928 )

On Rehearing. Three grounds are contained in the motion for rehearing, which will be noticed in order. The first ground presents that we erred in holding that —

"The controlling question for our determination is whether the pleading of appellee and the verdict of the jury, in answer to the three special issues above copied, support the judgment rendered."

The second and third grounds present that paragraph (b) of the petition, which was not copied in our original opinion pleaded fraud as a ground for the cancellation of the deed.

It is contended in support of the first ground for rehearing that the petition was sufficient to support the special issues answered by the jury on the question of fraud and to support the judgment rendered in favor of appellee on the jury's answers to those issues. We can add but little to our original opinion on this question. We have again carefully reviewed the entire petition and are unable to find therein in the paragraph quoted in the original petition, or elsewhere, any allegation which by reasonable construction could be said to plead, as a ground for the cancellation of the deed, that appellant did not intend to live with the deceased as his wife and wait upon him and nurse him when sick until his death, at the time she made the alleged promises. The deed was canceled by the lower court on a finding by the jury that appellant did not intend to keep those particular promises when she made them. We find abundant pleading of the fact that she pretended to love him and was false in such pretensions, but to our minds the allegation that her love was feigned was not at all an allegation that she had no intention to wait upon the deceased and nurse him when sick at the time she promised so to do. She might have been willing, in consideration of a deed to this valuable property, to live with him as his wife and wait upon him and nurse him when sick until his death, and at the same time be wholly insincere in her professions of love and affection.

The second and third grounds in the motion for rehearing can best be discussed by a consideration of the allegations of paragraph (b) of the petition, which allegations are as follows:

"(b) That before, at the time of, and after, the execution of said deed to the defendant, she was a sound and healthy woman, with a strong and vigorous body and mind; and in this condition she observed the mental and physical infirmities and delusions, and mental weakness of the deceased, J. B. Stuard, as aforesaid, and began prior to the execution of said deed a course of feigned affection for him, representing to him that she loved him and desired to care for him and protect him during his sickness and delusion and caused him to believe that her love to him was great and that his delusions with reference to his children were in fact true; and by such course of conduct she increased his hatred and ill will towards his children and preyed upon his weak and diseased body and mind to the extent that she created in his mind a desire to marry her, and by such feigned and unnatural course on her part, taking advantage of his delusions and weak mentality, she induced him to marry her, and he did in fact marry her; and after the marriage she feigned affection for him and love for him, and consoled and caressed him in regard to his delusions and business and financial troubles, most of which were imaginary. That knowing his state of mental delusions, she conceived the idea of persuading him to make the deed described aforesaid, and for that purpose she appealed to his hatred of his children by reason of the delusions aforesaid, and in that way and in other ways unknown to this plaintiff she caused him to separate from and live aloof from his children, to the end that she might the more readily and easily accomplish her desire in persuading him to execute the deed aforesaid, and that continuing her deceptive course and feigned affection and love for him, she kept him away from the counsel and advice of his children and kept him almost continuously under her domination and will power until she finally succeeded in persuading him to make the deed hereinbefore set out; that while she had him thus under her domination and control, and separated from the advice and counsel of his children, she caused him to make one or more other deeds to certain portions of his real estate in which he conveyed merely a life estate, which deeds she refused to accept, and continued the wiles and deception and feigned love and affection for him until she finally succeeded in persuading him to execute the deed herein mentioned. Plaintiff says that said deed should be canceled because of undue influence, misrepresentations and fraud aforesaid."

We construe this pleading just as appellee construed it in the petition in which it is contained, as shown in our opinion, and as he construes it in his motion for rehearing, namely, as a pleading of undue influence exerted by appellant upon her husband, causing him to execute the deed. This is a species of fraud. We find ourselves in agreement with appellee's contention regarding this pleading, and have never expressed a contrary view, but that question was not before us for decision in our original opinion for the reason that no issue was submitted to the jury on the question of fraud through undue influence. It is well established by the authorities that appellee waived this ground for a cancellation of the deed by making no request to have same submitted to the jury. Kirby Lumber Co. v. Conn, 114 Tex. 104, 263 S.W. 902; Ormsby v. Ratcliffe (Tex. Supp.) 1 S.W.2d 1084.

The particular fraud which the jury found to exist was entirely independent of undue influence and of any confidential relations existing between the parties to the deed. The sole ground upon which the judgment of cancellation was entered was the finding that appellant did not intend to live with her husband as his wife and wait upon him and nurse him when sick until his death at the time she promised so to do. That particular fraud, in our opinion, was not pleaded, and cannot therefore be the basis of the judgment of cancellation. Fraud by undue influence cannot be the basis of the judgment because, as stated, that issue was waived.

The motion for rehearing will be overruled.