
    JANES et al. v. STRATTON et al.
    (No. 5833.)
    (Court of Civil Appeals of Texas. Austin.
    Feb. 6, 1918.
    On Motion for Rehearing, May 1, 1918.)
    1. Deeds <@=>120 — Effect.
    A deed, if not voidable on account of fraud, conveyed whatever interest, legal or equitable, the grantor had in the premises.
    2. Deeds <@=>70(1) — Fkatjd—Misrepbesentation.
    To cancel a deed or other contract on the ground of fraud, there must have been false representation of a material fact, which must have been believed to be true by the party deceived, who must have relied on the representation.
    
      3. Pleading @=5214(1) — Demukeeb — Admissions.
    Where, in cross-action, allegations of plaintiffs petition are adopted, the allegations must be taken as true on general demurrer.
    4. Husband and Wife @=>273(1) — Community Pbopebty — Descent — Homestead Rights.
    On death of a husband, a half interest in the community property of himself and wife descended to the nine children of the husband, subject to the homestead rights of the wife and her minor son.
    5. Deeds @=>64 — Necessity foe Acceptance.
    If a deed was never accepted by the grantee, it did not convey the grantor’s interest to her.
    6. Deeds @=>8 — Fobgeby.
    If a deed was a forgery, it conveyed no interest.
    7. Husband and Wife @=>249 — Community Pbopebty — Acquisition by Husband.
    Where a married man acquired realty by deed, the property became the community of himself and his wife.
    8. Husband and Wife @=>273(10) — Community Pbopebty — Conveyances by Wife and Otiiebs — Childbens’ Interest.
    Deeds executed by a widow in her own behalf and as survivor of the community estate, and by others, did not convey the interest of the minor children of the deceased husband, if they had any, aside from his community interest.
    9. Homestead @=128 — Conveyances by Husband Alone.
    If land was the homestead of a husband at the time of several conveyances from him, and such conveyances were intended as mortgages, and all the grantees had notice of the facts when they acquired their several interests, the conveyances were void.
    On Motion for Rehearing.
    10. Deeds @=>196(2) — Fbaud—Pleading.
    In a widow’s suit in the form of trespass to try title, to remove cloud from her title, and, in the alternative, to enforce her alleged equitable vendor’s lien, the petition, which alleged that she deeded away the land under representations and belief that certain fraudulent pretended deeds, mortgages, and transfers, previously set forth, were all valid debts and liens, and that, if she had known the true circumstances, she would not have signed her deed, sufficiently alleged fraud, avoiding her deed and giving her a cause of action.
    Appeal from District Court, McLennan County; J. W. Cocke, Special Judge.
    Suit by Mrs. Juliana Janes against Mrs. K. T. Stratton and others, and the minor children of Dan Janes, deceased; the children filing a cross-action. From judgment sustaining demurrers to the petition and cross-action, petitioner and cross-petitioners appeal. ’
    Reversed, and cause remanded for new trial.
    James E. Yeager, of Waco, for appellant Juliana H. Janes. Jas. R. Jenkins, of Waco, for minor appellants. Jas. D. Williamson, J. N. Gallagher, W. B. Carrington, T. G. Dil-worth, and Bebout & Penland, all of Waco, for appellees.
   JENKINS, J.

Appellant Mrs. Juliana Janes brought suit against appellees and appellants, the minor children of Dan Janes, deceased, in the form of trespass to try title to certain property in the city of Waco, and to remove cloud from her title, and in the alternative to enforce her alleged equitable vendor’s lien against said property. She alleged in substance that the lots were formerly the community property of herself and her deceased husband, who at his death left surviving him appellant Juliana Janes, his wife, and nine children, one of whom, Jessie Janes, was at the time a minor; that she and said minor then residing on said property as their homestead; that being without means of support, she executed to one of her sons, Dan Janes, a deed to said lots on July 13, 1907, for the consideration recited in said deed of $1, and that he would support her during her lifetime, and support and educate her minor son until he arrived at the age of 21 years; that four of the other children for a like consideration executed deeds to Dan Janes for their interest in said property; and that the other three executed deeds to him for their interest for an alleged money consideration; that Dan Janes and his wife, Regina Janes, immediately moved into the house with her, and that they and she continued to occupy the same as their homestead until the death of Dan Janes, February 10, 1912, and until she was unlawfully dispossessed .of same on July 8, 1912.

She alleged that Dan Janes, for the purpose of fraudulently obtaining relief from his obligation to support her and her minor son, on October 5, 1907, joined by his wife, executed a deed to her for said land for the recited consideration of 81, and love and affection, and the cancellation of said agreement to support her and her minor son, and procured said deed to be recorded in the deed records of McLennan county March 4, 1908. She alleges that said deed was never delivered to her, that she never accepted the same, and had no knowledge of its execution until a short time before the filing of this suit. She alleges that Dan Janes, on October 16, 1907, forged her name to a deed to himself for said lots. She then alleges that for the purpose of borrowing money on said lots in violation of the law which forbids the mortgaging of a homestead, Dan Janes executed certain deeds to said lots, pretending to take vendor’s lien notes, but that such deeds were in fact mortgages, and the holders of said notes took them with knowledge of such facts.

If the transactions had stopped here, there would have been merit in appellant’s claim. But she further alleges that after the death of Dan Janes, his wife, Regina Janes, qualified as the survivor of the community estate of herself and her deceased husband, and that the disability of Jessie Janes’ minority was removed by the district court of McLennan county, and thereafter, on July 8, 1912, Regina Janes, for herself and as survivor of the community estate of herself and her deceased husband, and Jesse Janes for himself, executed deeds to said property to Mrs. K. T. Stratton, the consideration to be paid to Regina Janes being $850; that upon learning said fact appellant went to the office of S. E. Stratton, husband of K. T. Stratton, to whom Regina had executed said deed, and was informed by S. E. Stratton that there was large indebtedness against said property, which appears from the allegations of her petition to have been true, though she alleges such indebtedness was not enforceable against said property by reason of the homestead rights of herself and of Dan Janes and his wife; that she then and there declared such indebtedness to be fraudulent, but that she accepted from Stratton '$85 of the money that was to be paid to Regina Janes, and executed a deed to Mrs. Stratton.

The court sustained a general demurrer to the petition of appellant Juliana Janes. In this there was no error. It is useless to consider what would have been her rights in the premises if she had not executed the deed to Mrs. Stratton. That deed, if not voidable on account of fraud, conveyed whatever interest, legal 'or equitable, she had in the premises.

In order to cancel a deed or other contract on the ground of fraud, thre^ things must concur, viz.: (1) False'representation of a material fact; (2) the representations must have been believed to have been true by the party deceived; and (3) he must have relied upon said representations. Cresap v. Manor, 63 Tex. 485; Calhoun v. Quinn, 21 S. W. 705; Bonzer v. Garrett, 162 S. W. 934; Luckie v. McGlasson, 22 Tex. 285; Carson v. Kelley, 57 Tex. 379; Webb v. Harris, 1 White & W. Civ. Cas. Ct. App. § 1289.

According to the allegations of appellants’ petition, the statement by Stratton that there was a large indebtedness against the land was true. It is only by intendment, if at all, that she alleges that 'Stratton represented that such indebtedness was legally binding on the land. If such representation had been made, it would be no ground for avoiding her deed, as she does not allege that she was deceived thereby, or relied upon the same. On the contrary, she alleges that she then knew, and so stated to Stratton, that the said indebtedness was fraudulent, but that she accepted the $85, and executed said deed, because she thought it was the best she could do. The demurrer to the petition of appellant Juliana Janes having been property sustained, and she having declined to further amend, the judgment as to her is affirmed.

The trial court also sustained a general demurrer to the cross-action of the minor children of Dan Janes, deceased. In this we think there was error. The guardian ad litem of the minors adopted the allegations in plaintiffs petition. If these allegations are true, as they must be taken to be for the purpose of the demurrer, the property in question was the community property of Juliana Janes and her deceased husband; and upon his death a half interest therein descended to the nine children of the deceased husband, subject to the homestead rights of Juliana Janes and her minor son. Dan Janes was one of the children, and inherited, as his separate property, one-eighteenth thereof. If the deed from Dan Janes was never accepted by Juliana Janes, it did not convey his interest; and if the deed from Juliana Janes back to Dan Janes was a forgery, it conveyed no interest. Excluding these two deeds, Dan Janes, by virtue of the deed from his mother and from seven of his brothers and sisters, became the owner of his mother’s community interest, and of seven-ninths of his father’s interest, subject to the support of his mother and minor brother. Dan Janes being a married man at the time these deeds were executed, the property thus acquired was community of himself and his wife, Regina Janes, and the same was conveyed to Mrs. Stratton by Regina Janes, who executed said deed in her own behalf and as survivor of the community estate of herself and her deceased husband, Dan. Janes. The deed from Jessie Janes and the deed from Juliana Janes to Mrs. Stratton conveyed their interest. None of these deeds, however, conveyed the interest of the minor children of Dan Janes, if any they had, aside from the community interest of their father. If it be true, as alleged, that the property was the homestead of Dan Janes at the time of the several alleged conveyances from him, and that these conveyances were intended as mortgages, and that all of the other defendants had notice of such facts at th'e time they acquired their several interests, such conveyances were void; and as none of the other conveyances purported to convey Dan Janes’ separate interest in said property, his minor children, appellants herein, were entitled to recover such interest on their cross-action.

For the reasons stated, the judgment of the trial court sustaining the demurrer to the cross-action of said minors is reversed, and this cause is remanded for a new trial in accordance with this opinion.

Affirmed in part, and in part reversed and remanded.

On Motion for Rehearing.

Upon a former day of the present term, we affirmed the judgment herein as to all of the appellants, except the minors. As to appellant Juliana Janes, our opinion was based upon the fact that her petition, as we construed it, did not contain sufficient allegations as to fraud. The allegations as to fraud in obtaining the deed from her to K. T. Stratton, as well as to the transactions leading up to the same, are numerous and emphatic in some portions of her petition, but we thought that they were neutralized by other portions thereof. In this we have concluded that we were in error. In paragraph 30 of appellant’s petition she alleges that:

“She had no knowledge of any of the said fraudulent pretended deeds, mortgages, and transfers [which were set forth with great particularity in previous portions of her petition], or their meaning, until just before filing this suit, as aforesaid, and that she signed the Strat-ton deed under the representations and belief that they were all valid debts and liens [which is denied in other portions of her petition], but if she had known the tru.e circumstances, she would not have signed such deed.”

While the petition is very lengthy and somewhat involved, after a careful review of the same we think the trial court erred in sustaining the general demurrer thereto. We think it better that all of the issues herein should be tried together, for which reason our former judgment herein is set aside, and the judgment of the trial court is here reversed as an entirety, and this cause is remanded for a new trial.

Reversed and remanded. 
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