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and that he also, after discovering said, W. at page 854; Wells v. Houston, 23 Tex. fraud, dealt with the land which he had con- Civ. App. 629, 57 S. W. 597; Winters v. veyed to Willmann as the property of Will Coward, 174 S. W. 940; Zundelowitz v. Wagmann, and thereafter endeavored to sell the goner, 211 S. W. 598; Pomeroy on Cont. (2d same for Willmann as his property for a com- Ed.) § 279; Pomeroy's Equitable Jurisprumission. Following these recitals the court dence (3d Ed.) 88 964 and 965. rendered the following judgment:

There being no question but that palpable "It is therefore and thereupon considered, or

fraud had been committed by Willman, by dered, and adjudged by the court that the plain- means of which he obtained a deed from tiff, E. W. Kiehn, take nothing by his suit and Kiehn conveying to him the land in contro that he pay all costs of this suit.

versy, and also the note of Kiehn for the sum "It is further considered, ordered, and adjudg- of $1,200, as before stated, the only important ed by the court that the deed of conveyance inquiry now is: Is the evidence tending to from the plaintiff, E. W. Kiehn, to the defend-support the answers of the jury to special ant, R. J. Willmann, of date January 31, 1916, issues 12 to 19, inclusive, sufficient to supand recorded in volume 101, on page 50, of the Deed Records of Fayette county, Tex., con- port such answers ? veying 161.9 acres of land, a part of the Noah The undisputed evidence shows that apKarnes league, in Fayette county, Tex., and pellee, Willmann, as part consideration for fully described in said deed, be and the same the land of appellant and for appellant's is hereby declared a valid and subsisting deed, $1,200 note which was delivered to him, transand that said defendant, R. J. Willmann, be ferred to appellant, Kiehn, the following quieted in his title and possession to said land and in and to his title and possession of said notes, three notes aggregating $2,100, purnote for $1,200, and that he recover of plaintiff, porting to be secured by a first lien on 10 E. W. Kiehn, all costs in this suit."

lots in the city of Quanah, Hardeman coun

ty, Tex., notes aggregating $2,250, purported From this judgment E. W. Kiehn has ap- to be secured by a first lien on 176 acres of pealed.

land in Pecos county, Tex., and one set of Assignments 1 to 11, inclusive, are com notes aggregating about $2,250 purported to plaints of the refusal of the court to permit be secured by a lien on 70 acres of land in the plaintiff to introduce certain evidence Dimmitt county, Tex.; that one W. B. Dennis which he contends tends strongly to support was the maker of the first two sets of notes his allegations that the defendant, Willmann, and one C. B. Thrailkill the maker of the is a swindler, and that he did defraud him, third set; and that the contract between the Kiehn, as alleged by him.

parties to this suit was consummated on the [1] In view of the findings of the jury in 31st day of January, 1916. answer to questions 1 to 10, inclusive, sub Appellant, Kiehn, testified that in a few mitted by the court, which were amply sup- days after he got the notes from Willmann, ported by the evidence, to the effect that the on the 31st day of January, 1916, the people fraud as alleged was practiced upon Kiehn of Schulenberg told him that the notes were and that it induced him to make the con- no good; that he got the information that tract in question and to transfer the prop- the notes were no good at Schulenberg from erty involved iri this suit and to execute and the First National Bank; that when he deliver to Willmann his note for $1,200, the turned the matter over to his attorney about refusal of the court to admit the evidence the 15th day of March, 1916, he knew, or betendered, if error, became harmless. Such lieved rather, that the notes were worthless refusal furnishes no cause for a reversal of and of no value; that they were no good. the judgment rendered, and in view of the He also testified that when he turned the disposition we shall make of this appeal it matter over to his attorney about March 15, is no longer a material question and need 1916, he gave his attorney such information not be discussed further in this opinion. as he had acquired relative to the value of

[2] We have reached the conclusion that the notes and the property securing same, the only material question left for our de- and that he turned over to said attorney all termination is: Was there sufficient evi- letters he had received relative to such matdence to support the answers of the jury to ters, and that at that time he had reached special issues, 12 to 19, inclusive? If there the conclusion that the notes were worthless. was, the judgment of the trial court must Again he testified: be affirmed ; if not, such judgment should be

"I closed the deal the last day of January. reversed and the cause remanded for an. I found out that there was something wrong other trial. We think there can be no con- about these notes shortly after that; I judge troversy but that such answers of the jury, about two or three weeks after that, maybe a if supported by sufficient evidence, convict month. Possibly I did write Willmann three appellant under the well-established rule of days after that and told him that friends of law of having waived the fraud practiced mine at Schulenberg said the notes were not

worth anything; were no good. It has been so upon him by appellee and of having ratified long ago, I don't know who these friends were. the contract which he now seeks to rescind. Possibly the bank informed me or told me on Evans v. Goggan, 5 Tex. Civ. App. 129, 23 S. I or about the 3d day of February, 1916, that

one

(218 S.W.) these notes I got from Willmann and ex That on February 16, 1916, appellant, hibited to them were no good. Some time Kiehn, wrote appellee as follows: after February 3d, after I was told that the notes were no good, I made inquiry of people

“I am devoting my entire time and attention that lived in Pecos, Dimmitt, and Hardeman at present toward selling one set of the notes counties. I don't know exactly when. I don't which I obtained from you, but in every inknow exactly when I wrote that letter to a

stance I meet with adversities, which disanfriend of mine in Quanah. It might have been point me very much." in February and it might have been in March."

That Emil H. Baumgarten, who Again he said:

brought suits against appellee, Willmann, “I went to Judge Duncan some time in March, wherein he charged fraud and deceit on the according to my best recollection. I gave him part of Willmann, and appellant, Kiehn, were all the information I had in my possession at neighbors; that they went to La Grange, the that time. * At the time I brought suit county site of Fayette county, together and I was convinced that the notes were worthless. there consulted and employed the same at.

* * I wrote to one or two loan offices in torney at the same time to bring their reSan Antonio and they wrote they wouldn't have spective suits. anything to do with the notes. I have no idea the name of them now. I wrote a pretty good Willmann as follows:

On March 21, 1916, appellant, Kiehn, wrote while after I had them, shortly before I filed suit, evidently in March. I cannot tell the time "I do not think that there is much business exactly. I cannot tell the name of the loan with the parties interested in the 162-acre farm. company to whom I wrote."

It will be a good idea for you to come here this

week; I may be absent next week." J. F. Johnson testified by deposition as follows:

With reference to this postal Kiehn testi

fied: "Something like three or four months ago Mr. Kiehn, or some person of such name, wrote a

"I wrote this postal card dated March 21st; letter to some real estate agent in Quanah, that is my handwriting. The land it refers to Tex., and the same was placed in my box at is 161.9 acres I conveyed to Mr. Willmann. On the post office. And in this letter it asked that March 21st I was attempting to sell this land the agent try to sell some notes that he had for Mr. Willmann, and he was to pay me a which were secured on some farm lots in commission. The commission was to be 5 per Quanah. I do not know that this was Mr. cent.” Kiehn, but the name was very similar. I answered this letter and asked for a description

On the 28th day of March, 1916, appellant of the lots, and told him I would help him dis- placed in the San Antonio Express an adverpose of the notes. And I received a letter in tisement reading as follows: a few days giving description of the lots and

"Notes for Sale. notes, and after I had examined the lots I wrote him and told him that the lots were worth

"$4,400 worth of first vendor's lien 8 per cent. about $10 apiece. I did not keep these letters notes for sale at a great discount. Notes well and cannot attach them hereto."

secured, perfect title ; 124 Schulenberg, Texas.” Testifying with reference to a letter writ

On the 1st day of April, 1916, one Adolph ten by Mr. Hankins to him, wherein it was

Seidemann, of New Braumels, wrote Kiehn as

follows: stated the ten lots in Quanah were not worth more than $10 each, appellant said:

“I noticed in San Antonio Express that you “I exhibited that letter from Mr. Hankins, I of $4,400 (forty-four hundred dollars), said notes

are offering for sale notes aggregating the sum know, or whatever his name is, to Judge Dun- bearing interest at the rate of 8 per cent. per can when I employed him. The letters must be annum, said notes being secured by lien. among the papers; as near as I know I turned them over to Judge Duncan. I had that infor-notes, by whom signed, when due, the amount

“Please write me full particulars as to these mation about the value of the property before of each, and the security securing the payment I employed Judge Duncan."

of each, and the residence of the signers of said

notes; also whether you have abstract of title The following facts were shown by the to the security, and if you have not abstracts evidence:

will you furnish abstracts of title for examinaThat on February 3, 1916, three days after tion? he got the notes, Kiehn wrote R. J. Willmann "Please advise me at your earliest convenas follows:

ience." "I just arrived home and upon investigation

On the 4th day of April, 1916, Kiehn refind that my client who is interested in my farm bought a small place in his neighborhood. I

plied: do not think that this is enough land; however, "I have your favor of the 1st inst., relative I shall investigate, and if I think that we can to my ad in the San Antonio Express concerndo something I will write or telephone you, if ing certain notes. necessary. I made some inquiry with reference "I have one set of notes amounting to $2,to selling my land notes, but seem to meet with 250, payable $250 in June, 1916, $500 in June, many adversities. My friends told me that 1917, 1918, 1919, and 1920. These notes are these notes are ‘no good.'”

secured by 70 acres of land in Dimmitt county.

I have an abstract down to date and title has In the case of Evans v. Goggin, 5 Tex. Civ. been investigated by a guaranty company and App. 129, 23 S. W. 854, it was held that fraud approved. I have their written statement that may be ratified and remedies against it may said notes are first and the only lien on said be lost by acquiescence; that is, as is said land. These notes bear 8 per cent. interest; are signed by C. P. Thrailkill, who resides in by Pomeroy, by some act, not deliberately inSan Antonio. Since advertising these notes I tended to ratify, but recognizing the transchanged my mind concerning the other notes action as existing, and intended in some exthat I hold, which are secured by land further tent at least to carry it into effect, and obtain West. I desire to retain said notes and they or claim the benefits from it. 2 Pomeroy, Eq. are off the market.

Jur. $$ 964 and 965. "Hoping that you may be in a position to handle the above-described notes, which I am 57 S. W. 594, it is said:

In Wells v. Houston, 23 Tex. Civ. App. 653, willing to discount liberally, together with accrued interest. Telephone me upon receipt of “It is well settled that a party having recogthis letter and I shall forward abstract for your nized a contract as existing, and having done investigation.

something to carry it into effect and to obtain "Any favor and courtesy that you may be or claim its benefits and having thus taken his good enough to grant me herein, I assure you, chances, cannot be suffered to repudiate the shall be very highly appreciated, and thanking transaction and allege its voidable nature." you in advance for an immediate and favorable reply, I am

In Winters v. Coward, 174 S. W. 940, it is "Respectfully yours,

E. W. Kiehn." said: Again Kiehn testified:

“The remedy of rescission and cancellation is

no prime favorite of courts, and slight circum"It has been quite a while ago when I offered stances, tending to show a purpose or intent them (the notes) to Mr. Barber in San Marcos, upon the part of the person seeking a rescission who answered my ads. I don't know; quite a

to waive such right, will prevent the granting number answered them, It appeared to me I of the relief. The right of rescission is one did offer them for sale to somebody in New that can be waived, and when waived, the rights Braunfels."

of the parties are placed upon a new basis. Again:

Scarborough v. Arrant, 25 Tex. 129; Moore v.

Giesecke, 76 Tex. 543, 13 S. W. 290; Kallison "I put the advertisement in the paper because v. Poland, 167 S. W. 1104; Kempner v. ThreshI wanted to, thought I might have sold one set er Co. [54 Tex. Civ. App. 650], 118 S. W. 714; of notes. I was trying to find out whether the Trausettel v. Kjellman, 163 s. w. 689." notes could be sold. I wanted to see whether or not the notes were salable, if some one would In Sundelowitz v. Waggoner, 211 S. W. be interested in them. I got a letter from a 598, it is said: man by the name of Seidemann, and I replied to this letter. I did not intend at that time

"Fraud which renders a contract voidable to give up my right to recover from Willmann may be waived or condoned and the contract this land I am now suing for. The notes se

ratified by the party defrauded, but acts relied cured by the Quanah lots were not in the hands upon as ratification must be done after the perof the bank as collateral; it was a note execut

son defrauded 'has obtained full knowledge of ed by Thrailkill. The gentleman by the name all the material facts involved in the transacof Seidemann wrote me that he had seen my tion, has become fully aware of its imperfection advertisement and asked me to give him more

and of his own rights to impeach it, or ought particulars about it, and then I offered him the and might, with reasonable diligence, have benotes secured by the 70 acres in Dimmitt coun

come so aware.' 2 Pomeroy (3d Ed.) par. 964; ty. These are the notes that the bank have. North American Accident Insurance Co. v. MilIf Seidemann had replied to me that he would ler, 193 S. W. 758; Ingram v. Abbott, 14 Tex. buy the notes, of course I would have sold them Civ. App. 583, 38 S. W. 626; Black on Rescisto him. I told him that I would sell them. I sion and Cancellation, par. 591." wanted to do so, so I could pay off the note the bank held. That was the purpose I was trying

In 3 Pomeroy's Equity Jurisprudence, $$ to sell the notes for. I suppose I offered these 964 and 965, the following rule is stated: notes to Mr. Seidemann on the 4th day of April,

“Sec. 964. Where a party originally had a 1916. I wanted the money for the purpose of right of defense or of action to defeat or set paying off the bank that held the notes, so that

aside a transaction on the ground of actual or I could have them back."

constructive fraud, he may lose such remedial It will also be noted that while appellant right by a subsequent confirmation, by acquiesfurnished his attorney with the information cence, and even by mere delay or laches.

Contracts which are merely voidable because as to the acts of fraud practiced upon him contrary to good conscience or equity may be by Willmann about March 15th, his suit was ratified, and thus established.

If the party not filed until the 3d day of April thereafter. originally possessing the remedial right has

[3] We have reached the conclusion that obtained full knowledge of all the material facts the evidence was amply sufficient to support involved in the transaction, has become fully the findings of the jury to special issues Nos.

aware of its imperfection and of his own rights 12 to 19, inclusive, and that it was the duty sonable diligence, have become so aware, and

to impeach it, or ought and might, with reaof the trial court upon such findings to ren- all undue influence is wholly removed, so that der the judgment it did render.

he can give a perfectly free consent, and he acts

(218 8.W.) deliberately and with the intention of ratifying been made in the original petition. Townes' the voidable transaction, then his confirmation Pleading, pp. 309–321." is binding, and his remedial right, defensive or affirmative, is destroyed.

We have considered all of appellant's as"Sec. 965. * * * The theory of the doc-signments, and as we have concluded that trine is that a party having thus recognized a none of them presents reversible error they contract as existing, and having done something are all overruled without a detailed discusto carry it into effect and to obtain or claim its sion of each of them separately. benefits, although perhaps only to a partial

Having concluded that there was no reversextent, and having thus taken his chances, cannot afterwards be suffered to repudiate the ible error committed in the trial of the transaction and allege its voidable nature." cause, the judgment of the trial court is

affirmed. By the fourteenth assignment it is insisted

Affirmed. that the court erred in refusing to submit to the jury the right of appellant to recover actual and exemplary damages. (4) We think the court properly refused to

FRYCKBERG et al. v. SCOTT et al. submit such question, for the reason that ap

(No. 6277.) pellant's suit as made by his original petition, upon which he went to trial, was in (Court of Civil Appeals of Texas. San Antonio. our opinion a suit in equity for the rescis Dec. 31, 1919. Rehearing Denied sion of a contract and to vacate a deed and

Feb. 4, 1920.) note executed by appellant to appellee and 1. EXECUTORS AND ADMINISTRATORS C 76– to recover back certain property described in DISTRICT COURT HAS EQUITY JURISDICTION said petition, and not a suit for damages. -RELATING TO ESTATES WHERE COUNTY COURT We do not think the allegations of the origi CANNOT GRANT RELIEF. nal petition, or prayer therein, were suffi Under Rev. St. 1911, art. 1712, authorizing cient to admit of the submission of the ques- the district court, subject to limitations pretion of damages, either actual or exemplary. scribed by statute to hear any cause cognizable

[5] We also conclude that the allegations by court of law, or equity, the district court in neither the first nor second supplemental of deceased persons, when legal or equitable

has jurisdiction in matters relating to estates petitions form any basis for the recovery of rights must be adjudicated, and the powers of damages. The matters alleged in the supple- the county court are inadequate to adjudicate ments attempting to set up claim for damages them and administer complete relief. were in no sense a reply to any allegation in

2. EXECUTORS AND ADMINISTRATORS C344 appellee's answer. It is provided by rule 5

WHERE ADMINISTRATRIX REFUSED TO SELL for district and county courts (142 S. W.

BECAUSE OF ADVERSE CLAIMS THE DISTRICT xvii) that,

COURT CAN ADJUDICATE THE CLAIMS. “The plaintiff's supplemental petitions may

Where the administratrix refused to obey contain exceptions, general denials, and the al- an order of the county court to sell real estate legations of new facts not before alleged by him, to pay an allowed claim because others claimed in reply to those which have been alleged by prior rights in the property, the district court the defendant."

could hear a suit against the administratrix

and the adverse claimants, to determine the Rule 15, among other things, provides: rights of the parties and to order a sale of the “When either party may have occasion to of the county court, since there was no proce

property to be carried out under the direction plead new facts, additional to those formerly dure by which the adverse claimants could be pleaded by him, which constitute an additional brought before the county court and their claims cause of action or defense permissible in the

determined. suit, he shall present it as an amendment to the original petition or original answer.” Gossett 3. EXECUTORS AND ADMINISTRATORS 76 v. Vaughan, 173 S. W. 933; Burks v. Burks, MULTIPLICITY OF SUITS MAY BE AVOIDED BY 141 S. W. 337.

ACTION IN DISTRICT COURT,

Under Rev. St. 1911, arts. 1705, 1706, 1712, In the first case cited it is held that

prescribing the jurisdiction of the district court, "Under district court rules 4 and 5 (142 s. and articles 3206, 3207, prescribing the jurisW. xvii), providing that the original petition ! diction of the county and district courts in proshall state all facts constituting the cause of bate matters, it has always been the policy to action, and that the supplemental petitions may avoid multiplicity of suits, and when possible contain exceptions, general denials, and allega- to settle in one suit such issues as could not tions of new facts in reply to facts alleged by have been settled in the probate court. the answer, the court in determining the cause 4. EXECUTORS AND ADMINISTRATORS 241– of action stated need no consider the supple

ALLOWANCE OF CLAIM AGAINST ESTATE CANmental petition."

NOT BE COLLATERALLY ATTACKED. In Burks v. Burks it was held that,

The allowance by a court of competent ju

risdiction of a claim against a decedent's estate “Supplemental petitions are not designed for is a judgment which cannot be collaterally atsupplying averments of fact which should have Itacked.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

5. MARSHALING ASSETS AND SECURITIES

this order to the district court, where it is LATER LIENHOLDER NOT ENTITLED TO MAR- now pending for determination; the cause SHALING AS AGAINST LIEN FOR PURCHASE of action being based upon the alleged ground MONEY.

as follows: In suit against a decedent's estate to have sold land of the estate subject to plaintiffs' "Plaintiffs, as such surviving heirs of said G. note for the purchase money thereof secured by R. Scott, are the legal owners and holders of deed of trust on the land, a vendor's lien there- said claim and lien, and as such holders and of being preserved and in effect recited in the owners are entitled to the full benefit of the note and deed of trust, and plaintiff's claim as liens and securities held by said G. R. Scott, evidenced by the note and deed of trust having and such lien is a valid, subsisting, and unsatbeen established in the county probate court, isfied lien for the unpaid purchase money of said held, there was no pleading or proof justifying land and premises to the full extent of the sale of remainder of the land before sale of the balance due thereon, principal, interest, and atportion which a later lienholder claimed should torney's fees, as established and allowed by the be last sold to protect her claim.

honorable county court of Nueces county, Tex.,

with interest thereon as therein specified, and 6. EXECUTORS AND ADMINISTRATORS 344– is a valid and subsisting lien upon all the lands

PROBATE JURISDICTION MAY BE EXHAUSTED and premises hereinbefore described covered by, BEFORE APPEALING TO EQUITY JURISDICTION and included within, the terms and provisions TO DETERMINE ADVERSE CLAIMS.

of said deed of trust, and superior and prior to A creditor of a decedent's estate properly any character of right, title, or claim asserted filed his claim in the probate court, and asked by said defendants or any of them, and the said for a sale of the land to satisfy it before appeal- lands upon which plaintiffs' said lien exists is ing to the district court to adjudicate adverse not sufficient to enable plaintiffs to realize their claims to the land by those who could not be claim therefrom, and is in fact far less than made parties in the probate court.

the amount of such claim, and there exists no

equity in favor of defendants or any of them.” Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

And hence appellee alleged he Suit by Mrs. G. R. Scott and others against "cannot procure full and adequate relief in the Mrs. Etta M. Fryckberg and others. Judg-county court of Nueces county, Texas, and is ment for plaintiffs, and defendants appeal. necessary that this court determine and fix the

priority and superiority of plaintiffs' lien and Affirmed.

foreclose same against all adverse claimants, Jas. H. Anderson, of Corpus Christi, W. and order the sale of said property in satisfacL. Dawson, of Mission, and Delmas Givens, of tion of plaintiffs' claim, through said county Corpus Christi, for appellants.

court." G. R. Scott and Boone & Pope, all of Corpus Christi, for appellees.

The prayer of their petition is:

"Upon hearing, plaintiffs pray decree deterCOBBS, J. This suit is brought on an mining and establishing the priority and suapproved claim, or rather judgment for $8,- | defendants adversely claiming, foreclosure as

periority of their claim and lien against all 025, for interest, and for 10 per cent. attor- to all such defendants, judgment for costs ney's fees, against the Frýckberg estate, es- against all such defendants, and judgment and tablished as a valid claim in favor of appel- decree ordering said administratrix to sell said lees against the estate of J. W. Fryckberg by properties in satisfaction of said lien, and certhe county probate court of Nueces county, tification of said decree to the said county court where said estate is being administered, and of Nueces county, Texas, for observance, and established the lien expressed in the deed of for all such other and further orders and detrust, securing its payment, on 372 acres of crees, as may be requisite or necessary to afford land located in Nueces county in what is plaintiffs all relief, general and special, legal

and equitable, to which, in the premises, they known as the “Nueces Irrigation Park," and

may be entitled.” ordered the same to be satisfied and paid I out of the assets of said estate and duly The appellant Mildred Seaton answered classified as a valid claim against said estate. by demurrer and pleaded to the jurisdiction

Appellees duly requested the adininistra- of the court, also asserting the claim to be trix to sell said land to pay the claim, and barred against her by the statute of limitabeing refused twice applied to the court for tion, general denial, and special answer, and an order compelling the administratrix to averred that a portion of the land upon which proceed and sell to pay the claim and the the Ilen existed was conveyed by J. W. Fryckorder of the court being as often disobeyed, berg and C. M. Cannon to the Nueces River appellees made application to have her re Irrigation Company, and if plaintiff had a moved as administratrix, which the court lien it was subject thereto. She pleaded her refused to do. Not being able to secure the debt over against Nueces River Irrigation relief through the administratrix, who re- Company, and prayed for judgment for same fused to comply with the orders of the court, against said company, and for foreclosure of and not being able to get the relief from the her lien incident thereto. She pleaded by court appellees perfected their appeal from the deed of trust sued on, plaintiff waived

Paw For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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