products and the prices paid therefor, for the | General, or by the court of its own motion, for "(4) If the respondent Missouri Lumber & "(2) If the respondent Calcasieu Long Leaf Lumber Company pay to the clerk of this court the sum of ($25,000) twenty-five thousand dollars-one-half in 30 days and one-half in 60 days-our execution for the remaining sum of $25,000 of the fines imposed will be stayed during the good behavior of such corporation; but, in the event such corporation further infract the laws of this state or in any wise disobey the terms of the decrees entered in this case, then execution may issue, upon the application of the Attorney General, or by the court of its own motion, for the said sum of $25,000, stayed as aforesaid, with interest thereon at the rate of 8 per cent. per annum from this date. "(3) If the respondent Central Coal & Coke Company pay to the clerk of this court the sum of ($30,000) thirty thousand dollars-onehalf in 30 days and one-half in 60 days-our execution for the remaining sum of $20,000 of the fine imposed will be stayed during the good behavior of such corporation; but, in the event such corporation further infract the laws of this state or in any wise disobey the terms of the decrees entered in this case, then execution may issue, upon the application of the Attorney "(D) All motions to modify our conditional ouster as contained in the original judgment, so as to remove the same and leave only a judg ment for a fine, are overruled. "(E) The court retains its full jurisdiction over the case and each of the respondents for the making of all necessary future orders." To this disposition of such motions, all concur, except WOODSON and FARIS, JJ., who dissent. WOODSON, J., agrees to al that is done by the foregoing judgment and order, but is of opinion that a stay of execution as to one-half of the fines assessed against other defendants, not mentioned in this order, should be stayed. FARIS, J., adheres to the views expressed in his original opinion. STRICKLAND et al. v BAUGH et al. 1. NEW TRIal (§ 6*)-Grounds. [Ed. Note. For other cases, see New Trial, Where a husband, after the death of his wife, discovered that property purchased with community funds had been conveyed by mistake to her as a part of her separate estate, and sued to reform the deed the suit was not only for reformation but to enforce a resulting trust, and hence limitations did not begin to run until an adverse claim had been asserted to the land or the trust repudiated. Henry Strickland, Jr., and others. Judgment having been rendered for complainants, defendants appeal from an order denying their motion to set aside the judgment and for a new trial. Affirmed. M. B. Harris, of Ft. Worth, and Burgess, Burgess, Chrestman & Brundidge, Geo. A. Titterington, and R. H. Vogel, all of Dallas, for appellants. Charles F. Clint and Chilton & Chilton, all of Dallas, for appellees. HODGES, J. On the 17th day of August, 1911, the appellee R. P. Baugh filed in the district court of the Forty-Fourth judicial district of Texas his original petition, alleging in substance the following facts: That the plaintiff and Evaline Baugh were husband and wife prior to the death of the latter in 1908. Evaline Baugh died intestate and without leaving any children or descendants; her only heirs being the defendants, her sisters and brothers and their descendants. On the 30th day of April, 1904, R. P. Baugh purchased from W. L. Nichols a tract of 16 acres of land situated in Dallas county, not far from the city of Dallas. The consideration paid was the sum of $1,333.35 cash and a promissory note for $266.65 due on or before four years after date. The money paid in cash was the community property of the plaintiff and his wife, and the note executed was their community debt. The deed made by Nichols conveyed the land to Mrs. Baugh, and recited that the conA recital, in a deed to certain land convey-sideration was paid and to be paid from her ed by the vendor to complainant's wife, that the consideration was derived from the wife's separate funds, and the land was to be her separate property, did not preclude complainant after the wife's death, in a suit to enforce a resulting trust and reform the deed for mistake, from testifying that such recital was erroneous, and that the consideration was in fact paid from the community property of himself and wife. [Ed. Note. For other cases, see Limitation of Actions, Cent Dig. §§ 494-505, Dec. Dig. § 102.*] -- 3. REFORMATION OF INSTRUMENTS (§ 44*) TRUSTS (§ 88*)-PROCEEDINGS-EVIDENCERESULTING TRUSTS. [Ed. Note.-For other cases, see Reformation of Instruments, Cent Dig. 88 155, 156, Dec. Dig. $44;* Trusts, Cent. Dig. §§ 130-133; Dec. Dig. § 88.*] 4. NEW TRIAL (§ 125*)-APPLICATION-STATEMENTS ON INFORMATION AND BELIEF. Complainant having recovered judgment in a suit to reform a deed conveying certain land to his wife, since deceased, as her separate property on the ground that the conveyance to her as her separate estate was a mistake, and that the consideration for the deed had been community funds, defendants applied for a new trial, alleging that they had reason to believe, and therefore did believe, that the consideration was the separate property of the wife, which they were informed and believed she had received from the estate of her father by inheritance. Held, that such averment on information and belief only did not indicate with reasonable certainty that a different result would be had at another trial, and was therefore insufficient. separate funds, and the property was to be held by her as her separate estate. These recitals were untrue. No part of the consideration was from the separate funds of Evaline Baugh, and it was not intended that the land should become her separate property, but same was to be the community property of plaintiff and his wife. The recitals referred to above were inserted in the deed of conveyance without the knowledge or consent of the plaintiff or his wife, and plaintiff did not know that the deed contained such recitals till after the death of his wife. By reason of the payment of the consideration out of the community funds of the plaintiff and his wife, a resulting trust arose in favor of the community estate, and a decree so declaring was asked for. 2. It is further alleged: That the land referred to was purchased from Col. O. P. Bowser, the agent for W. L. Nichols. The terms were agreed to, and the property was to be conveyed to the plaintiff; "the whole transaction being in ordinary form a community trade." Plaintiff and his wife being without any children or their descendants, and knowing that plaintiff had relatives in other states, and not intending that his property should be affected, plaintiff suggested to Col. Bowser "that he wanted the deed fixed Suit by R. P. Baugh and others against so that when he (plaintiff) died his wife For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes [Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 254, 255, Dec. Dig. § 125.*] Appeal from District Court, Dallas County; E. B. Muse, Judge. would get the property." That plaintiff had no experience and was unacquainted with the proper forms of conveyances, and was unacquainted with the effect of such documents and with the rules of descent in Texas; and he relied upon Col. Bowser, whom he knew to be a business man and real estate agent of experience. That, when the deed of the date aforesaid was presented to him, he accepted same without question. That it was the intention of himself and his said wife that said property should be so conveyed that the plaintiff would acquire a present community interest in the property, but that, if he died before his wife, the property should go to her, and that, if she died first, it should go to him. When the deed was delivered to plaintiff, he paid over the cash to Bowser, and plaintiff and his wife executed the note for the deferred payments. He did not examine the deed, and did not know that it contained the recital that the consideration was paid and to be paid out of the separate funds of his wife, and that the property was to belong to her separate estate. "That, while plaintiff did not read said deed, yet if he had read it he would not have known that the language used therein defeated the intention of himself and his said wife, and so vested the title that in case of the death of his said wife the fee-simple estate in said property, or a part thereof, would go to her brothers and sisters and their descendants, to the exclusion of plaintiff." 3. He further alleges: That it was not his intention to make a gift to his wife, and he "believes and so charges that it was not the intention and understanding of his said wife that a gift of the community property was being made to her." Nichols had no interest in the way in which the title vested, and was indifferent as to the form of the conveyance; and neither he nor Bowser intended or un derstood that the property was being conveyed, so that, at the death of the plaintiff's wife, the title of one-half thereof would pass by descent to her relatives. That the deed, therefore, does not truly express the agreement of the parties, and there was a mutual misunderstanding of the legal effect of the language used. 4. It is also averred: That the relatives of the plaintiff's wife live in a distant state, and many of them are well provided for financially. That plaintiff's wife knew that plaintiff was old and poor and dependent, and, had she known that the deed was drawn as it was, she would have rejected and revoked it. It was not plaintiff's intention, in directing the manner of making the conveyance, that the deed should be so framed as to deprive him of a present interest in the title, but it was his intention for the conveyance to be so drawn as to preserve his community interest during his lifetime, and that same would pass to his wife in the event of his death occurring before hers. 5. That the deed was in fact drawn by D. W. Bowser, a capable attorney and son of Col. Bowser. That D. W. Bowser was told by his father that the deed was to be so drawn as to provide that, if plaintiff died before his wife, the property would be hers. That the attorney, not fully understanding that the community interest of the plaintiff was to be in this manner preserved, wrote the deed in its present form, vesting the title in plaintiff's wife as a part of her separate estate. Plaintiff had no communication with D. W. Bowser, who actually wrote the conveyance, and relied upon Col. Bowser to conduct that transaction. That, after the execution and delivery of the deed, plaintiff and his wife entered into possession of the land and occupied it as their homestead till the time of her death in 1908. That, since the death of his wife, plaintiff has continued to use and occupy the land as his home. This tract of land was all the property owned by the plaintiff and his wife at the time of its purchase and at the time of her death. That, relying upon the superior knowledge of Col. Bowser, plaintiff had never read nor examined the deed, and after the death of his wife took it for granted that the property belonged exclusively to him. He never discovered the verbiage of the deed or became aware of its legal effect till within less than a year before the filing of this suit, when his attention was called to it by an attorney who examined the abstract of title preparatory to a sale contemplated by plaintiff. After making this discovery, plaintiff applied to his wife's relatives for a release of their interest in the property, but they had failed to execute any. After further alleging that no administration was pending on the estate of Mrs. Baugh, and that there was no necessity for any, the petition concludes by asking for judgment for the property in controversy; that plaintiff be quieted in his title; and that the cloud caused by the unfounded claim of the defendants be removed. He further asks: That the court decree that the deed from W. L. Nichols to Mrs. Evaline Baugh be corrected and reformed by striking from it the words "out of her separate and individual funds and estate," and from the habendum clause the following words: "To have and to hold all and singular the said premises unto the said Mrs. Evaline Baugh as her separate and individual estate." That the property be adjudged as belonging to the community estate of plaintiff and his said wife, and for relief general and special. Citation was issued and published as required by law in suits against nonresidents. On January 2, 1912, the court appointed an attorney to represent the nonresidents. The attorney so appointed filed an answer in behalf of the nonresident defendants, consisting of a general demurrer, general and special denials, pleas of limitation, and stale demand. W. L. Nichols waived service of citation, entered his appearance, but filed no think that he had ever read it or had it read over to him. All the money paid belonged to the community estate. He and his wife had only one child, and it died in infancy. He and his wife moved upon the property immediately after its purchase. He had brothers and sisters, but wanted the land to go to his wife upon his death rather than to them, if he died before she did. The deed was introduced, and showed the recitals described in the petition. answer. The appellants did not answer, and | amine the title for the purchaser, and his were represented only through the attorney attention was called to this provision of the ad litem appointed by the court. deed. He knew that his wife's name was On the 5th day of January, 1912, the case in the deed, but did not know of the stipuwas tried and a judgment rendered in favor lation making it her separate property. On of the plaintiff R. P. Baugh. In this judg- | cross-examination he stated that he left the ment the court finds the facts to be substan- deed to Bowser to write, and knew of the deed tially as alleged in the petition: That the being on record, but did not know the meanproperty was purchased for the community | ing of the contents of the deed; did not of plaintiff and his wife, and was paid for with community funds; that the recitals in the deed from Nichols to Mrs. Baugh making the land her separate property were inserted by mistake on the part of the draftsman; and that there was a "common and mutual mistake of all parties." It was adjudged by the court that the deed be corrected and reformed by striking therefrom the words "out of her separate and individual funds and estate," and from the habendum clause the words "to have and to hold all and singular the said premises unto the said Evaline Baugh as her separate and individual estate." It was further adjudged and decreed: "That the land is now and has ever been the community property of the plaintiff and his deceased wife, Evaline Baugh, and the title thereto is hereby vested in R. P. Baugh, subject to the unpaid balance due on the note, and that R. P. Baugh do have and recover of the defendants (naming the appellants herein) the land described in the deed." It is unnecessary to refer to the other provisions of the judgment. A statement of the facts adduced upon the trial was prepared and filed with the papers, as required by statute. That statement consisted of the testimony of the plaintiff R. P. Baugh and O. P. Bowser and a copy of the deed from Nichols to Mrs. Baugh. R. P. Baugh testified in substance: That he and his wife, Evaline, were married just before the beginning of the War. That his wife died in August, 1908. That, at the time the land involved in that suit was purchased, all the property owned by himself and wife consisted of the money paid on the purchase price. That this was their community property, and neither of them at that time had any separate estate. He bought the land through Col. O. P. Bowser, paying in cash $1,333.35, and giving a note for $266.65. He told Bowser to write the deed and to fix it so that, in case of his death, Mrs. Baugh would have the property. He did not tell him that the money being paid was her separate money, nor did he tell him to put it in her name as her separate property, but merely told him to use the money so she could get the property if he (plaintiff) died, and so that plaintiff would get it if she died. He did not at the time intend to make his wife a gift of the property, or to deprive himself of any right in it. After the deed was made, plaintiff had it recorded. The first time he discovered that the deed contained any recital that the property belonged to the sepa rate estate of his wife was when he went to sell the land. He then had a lawyer to ex O. P. Bowser testified to having negotiated the trade between Nichols and Baugh, and that Baugh asked him to have the deed made to his wife. Bowser's language with reference to this fact is as follows: "He asked me to have the deed made to his wife voluntarily, saying that if he should die, or drop off (I believe is the word he used), that he wanted her to have it. In other words, he wanted no controversy about her getting the property at his death in the event he should die before she did. That is about all that was said about the deed." The witness further stated that, according to his recollection, his son wrote the deed. He told his son that Baugh decided that the deed should be made to his wife, and gave his son Mrs. Baugh's name. He could not recall whether he said anything to his son about wording the separate clause. He fur ther stated that Baugh said nothing to him about the purchase money being his wife's separate property, or anything about deeding the property to her as her separate estate, but only to deed it to her in her name so that, in the event of his death, she should have it. On cross-examination he stated that he acted as the agent for both Nichols and Baugh in the transaction. Mrs. Baugh signed the notes, and he thinks acknowledged a deed of trust on the land. Before the expiration of two years from the date of the judgment rendered in the case, Henry Strickland, Jr., and others, the appellants herein, claiming to be the sisters and brothers and their descendants of Mrs. Baugh, filed their motion asking for a new trial. The motion was verified by the affidavit of the attorney who represented the appellants in asking for a new trial, and is as follows: "Before the undersigned authority on this day personally appeared M. B. Harris, agent and numbered cause, and being duly sworn on and attorney for petitioners in the above styled oath says that the matters and facts set out in said instrument are true, and that the matand belief he verily believes to be true as alters and facts alleged to be true on information leged. This affidavit covers only those allegations designated by Nos. 1 to 19, inclusive." The substance of the motion will be refer- I rection of the deed, even if error, furnishes red to in discussing the assignments of error. no substantial ground of complaint if the The court overruled the motion, and this ap- judgment in otherwise disposing of the title peal followed. be correct. Payne v. Ross, 10 Tex. Civ. App. [1] Article 2026 of the Revised Civil Stat- 419, 30 S. W. 670; Aransas Pass Arbor Co. utes is as follows: v. First National Bank, 28 Tex. Civ. App. 372, 67 S. W. 906. "In cases in which judgment has been rendered on service of process by publication, where the defendant has not appeared in person or by an attorney of his own selection, a new trial may be granted by the court upon the application of the defendant, for good cause shown, supported by affidavit, filed within two years after the rendition of such judgment." It has now been definitely decided that this article merely extends the time within which a motion for a new trial in the class of cases there referred to may be presented and acted on. Miles v. Dana (Tex. Civ. App.) 36 S. W. 848; Wolfe v. Sahn, 55 Tex. Civ. App. 564, 120 S. W. 1114, and cases there cited. What constitutes "good cause" must to some extent be left to the discretion of the trial judge, and is governed largely by the rules which should control him in passing upon similar motions filed during the term at which the cause is tried. Perhaps more liberality should be exercised in such instances in order to give the defendant an opportunity to be represented in person or by an attorney of his own selection. If the judgment in such cases appears to be based upon insufficient evidence, or upon evidence which should not have been considered by the court, or if the defendant in his application presents new evidence not available on the first trial, these would constitute "good cause," and a new trial should be granted. [3] We infer from the argument that the particular objection sought to be raised in this part of the appellants' brief is the act of the court on the original trial in admitting the testimony of R. P. Baugh regarding the payment of the consideration from the community funds. It is claimed that this testimony related to a transaction with his deceased wife and should have been excluded. We do not so construe the testimony. [2] In the first group of errors assigned it is Baugh's dealings in this transaction were insisted that both the pleadings and the evi- with Bowser, the agent of Nichols, the vendence showed that the cause of action set dor, and there is nothing in the record to out in plaintiff's original petition for a cor- indicate that Mrs. Baugh at any time parrection of the deed accrued more than four ticipated in those negotiations or had any years before the institution of this suit, personal connection with that transaction. and that the court should have held that the It is true the deed recites that the considaction was barred by the statute of limita- eration was paid from her separate funds, tion. It may be conceded that this is cor- but that does not imply that she paid it. rect if this suit be treated as one solely to Her husband, as the representative of the correct a deed; but, if we look to the real community, and having the right, under the purpose of the suit, it will be found that it is statute, to the possession and control of her an action by one in possession to recover the funds, could have been the agent through title to land and to have judicially establish- whom that payment was made, if it be a fact ed the existence of a resulting trust. The that the consideration was from her separate pleadings are broad enough to bear this con- funds. Hence it does not necessarily follow struction. In such a case, limitation does not from such a recital that Mrs. Baugh must begin to run until an adverse claim is as- have had some connection with the transserted or the trust is in some manner repu- action. The assignment raising this quesdiated. It is true the court found that the tion is very indefinite and points to no parrecitals in the deed from Nichols to Mrs. ticular language set out in the statement of Baugh were inserted by mistake, and ren- facts. It would be difficult to identify the dered a judgment correcting the verbiage of testimony which the appellants now insist the deed by striking out those recitals. That should have been excluded. The recitals in feature of the judgment we regard as unim- the deed from Nichols to Mrs. Baugh, in portant, inasmuch as the court also found which it is stated that the consideration that a resulting trust, in favor of the com- was from her separate funds and the land munity consisting of Baugh and wife, had was to be her separate property, did not prearisen by reason of the payment of the con- clude Baugh from showing that the money sideration from the community funds, and from which the consideration was paid was awarded a judgment to that effect. The cor- the community property of himself and wife. |