
    RYMAN et al. v. PETRUKA.
    (No. 5274.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 29, 1914.)
    1. Limitation of Actions (§ 99) — Suit to Set Aside — Fraud.
    Where a grantee in a deed, duly acknowledged, delivered, and recorded, went into possession and dealt with the property as his own, the right of the grantors to sue to set aside the deed on the ground of fraud was barred by limitations, where the grantors took no action during their lifetime, though they lived more than five years, in the absence of anything to show that they did not know of the fraud at the time •of the execution of the deed.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 477-479; Dec. Dig. § •99.]
    :2. Acknowledgment (§ 62) — Impeachment.
    Where a deed executed by husband and wife was acknowledged in proper form, and the notary who took the wife’s acknowledgment testified that he acquainted her with the contents of the deed, evidence that the wife, who was Polish, could not talk much English, .and that the notary could not talk Polish, did not justify the setting aside of the deed.
    [Ed. Note.' — Pot other, cases, see Acknowledgment, Cent. Dig. §§ 345-347; Dec. Dig. § 62.]
    3. Limitation of Actions (§ 103) — Existence of Trust — Repudiation.
    Where parents holding property in. trust .as common family property of all the children, conveyed it to a son, and the deed was duly acknowledged, delivered, and recorded, and the son entered into possession and dealt with the property as his own, a suit by the other children to set aside the deed brought over nine years after the execution and recording of the •deed, and the taking of possession by the son, was barred by limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 500, 506-510; Dec. Dig. § 103.]
    4. Limitation of Actions (§ 73) — Disabilities — Coverture.
    Where female children were married and of legal age when their brother obtained a deed from the parents and took possession and set up an adverse claim to common family property, limitations ran against the female children by the removal of disability of coverture.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 399-412; Dec. Dig. § 73.]
    Appeal from District Court, Matagorda County; Sam’l J. Styles, Judge.
    Action by Annie Ryman and others against Thomas Petruka. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    Gaines & Corbett and W. D. Wilson, all •of Bay City, for appellants. W. S. Holman, of Bay City, and John T. Duncan, of La Grange, for appellee.
    
      
      For other cases see same topic and section NUMBER'in Dec. Dig. & Am. Dig. Key-No. Series& Rep’r Indexes
    
   CARL, J.

Appellants, Annie Ryman, .Mary >Gola, Lizzie Sherrer, Kate Lecompte, and Rosa Gastmeyer, joined by their husbands, sued their brother, Thomas Petruka, ap-' .pellee, for an interest in about 2,000 acres- of .land in Matagorda qounty and about 1,000 head of cattle and their increase. The plaintiffs and defendant below are the children of Joseph and Caroline Petruka, deceased. On May 23, 1902, Joseph and Caroline Petruka executed a deed, wherein and whereby they conveyed all of their land to appellee, and appellants charge that this deed, was obtained by fraud of appellee, and that it was without consideration, and that one of the expressed considerations, viz., the caring for his parents, was unperformed, to the extent that his mother died of neglect. It was further charged that Caroline Petruka did not understand English, and that the notary who drew the deed and took the acknowledgment did not understand the Polish language; that she could not and did not write her name, and that she was under the impression that the deed conveyed only the 200-acre homestead. And it was alleged that there had never been any administration upon the estates of Joseph and Caroline Petruka, wlio, it is claimed, died intestate.

Appellee answered by general demurrer, general denial, and by special pleadings that he had actually earned the property conveyed to him, and that what interest his father and mother had was conveyed in consideration of their appreciation of his care, support, and attention to them. Appellee further pleaded that his father and mother left a will in which they gave him all their property, and bequeathed to appellants each the sum of $400, and alleged and exhibited the receipts of all of them, except Annie Ryman, and shows that, while the will has not been admitted to probate, it has been filed, but was not probated, because the county judge was disqualified from acting, having been attorney for appellee. He also pleaded three, four, five and ten years’ limitation as to the land and the right to sue therefor. It is alleged that the receipts executed were in full of the interest in the estate of Joseph and Caroline Petruka.

In answer to the pleas of limitation, appellants pleaded coverture, and that the land and cattle were earned by appellants in connection with Joseph and Caroline Petruka, their parents, but that the title was taken in their parents’ name, and held in trust for all of them; that the will was witnessed by Julia Petruka, appellee’s wife, .who was disqualified to act, and that the will is not properly executed; and that neither Joseph nor Caroline Petruka understood the deed executed, and that same was procured by fraud of appellee. It was further alleged that the receipts were not intended to be in full settlement, or were other than receipts to the extent of $400.

Appellee replied in a supplemental answer, excepting generally, and specially that the right to repudiate said deed was solely in Joseph and Caroline Petruka, and that more than four years had elapsed between the time same was executed and recorded and the death of the parents, who alone had the right to repudiate same. He also pleaded 'that the will was a family settlement, and disposed of their property, and that they had given their children all ■ they intended they should have, and that the land and personal property were given to appellee during their lifetime and at about the date of the execution of the deed, and turned over to him the property in 1902 at the date of the deed.

The court instructed the jury to find for 'appellee, which was done, and judgment thereupon was entered for the defendant at the conclusion of the trial.

The suit was filed September, 1911, and the deed executed by Joseph and Caroline Petruka to Thomas Petruka was dated May 21, 1902, and was filed for record May 23, 1902, in the office of the county clerk of Mat-agorda county. Caroline Petruka died some time, in September, 1907, and Joseph Petru-ka died May 23, 1909. So it will be seen that Mrs. Petruka lived over five years after the execution and recording of said deed, and Joseph Petruka lived seven years; and there is no evidence that either of them ever expressed any dissatisfaction with the deed or took any steps to set the same aside. During all those years that deed was of record where every one might read it; and on the same day the deed was executed, the will was made. The undisputed evidence shows that, from and after the deed and will were executed, the appellee took and held possession of all of the property, both real and personal, and dealt with it as his own. The deed was of record, which was constructive notice to every one of its contents, and the testimony of appellants shows that they actually knew, or ought to- have known, from the date of the deed and will that Tom Pe-truka “got everything,” as they put it. All of them, except Mrs. Ryman, signed receipts in full for the $400 bequeathed to them in the will, and Mrs. Ryman thought she ought to receive more. The petition does not charge that Joseph and Caroline Petruka did not know of the deed actually made prior to their death, nor is it sought to excuse them from failing to bring a suit or to take steps to rectify the alleged wrong before they died. The fraud, if any was practiced, was against them, and not against the ■ children. It is not alleged that they did not know the contents of the deed and will before they died, nor that they did not know from the very day these instruments were executed up to the time they died that Tom Petruka had gone into possession and was actually claiming both land and personal property.

The deed introduced shows ample consideration to support it, and shows that it is an executed contract. That deed reads, in part, as follows: “The State of Texas, County of Matagorda. Know all men by these presents, that we, Joseph Petrucio and his wife, Catherine Petrucio, of said county and state, for and in..consideration of the sum of two thousand dollars to us in hand paid by Thomas Petrucio, and the further consideration of the fact that the said Thomas Pe-trucio, our said son, has remained with and taken care of us in our old age and managed and taken care of our property for us without any compensation, we have granted,” etc.

Suppose that Joseph and Caroline Petruka could have set this deed aside as soon as it was placed upon record for them, the law charges them with notice of its contents, if they did not actually know of the same; they did not do so, and limitation would run against them from that date. And both of them were barred from maintaining a suit even at the time Mrs. Petruka died, unless excused by pleading and proof that they did not discover the fraud, or could not have done so by the exercise of ordinary care.

The deed, as written and acknowledged, is in proper form, and the notary who took Mrs. Petruka’s acknowledgment says he acquainted her with the contents of the deed. And the evidence offered to set that deed aside is totally insufficient! Summed up, it is merely to the effect that she could not talk-much English, and that the notary could not talk the Polish language. Deeds executed with all the formality of the law will not be set aside, except upon clear and convincing evidence.

If it be true that, as contended, Joseph and Caroline Petruka held the property in trust, as the common family property which plaintiffs helped- to earn, then appellants would have limitation' running against them from May 21, 1902, until September, 1911, when the suit was filed; for .they knew from the date of the deed and will, as well as the receipts made out, and which all of them but one signed, that Tom Petruka claimed and held everything.

But the parties all knew, or ought to have known, from May 23, 1902, the claims Tom Petruka was making, and that he held all the property as his own. It is not enough to say that plaintiffs were laboring under coverture; for they must know that several years ago a law was passed which took away this defense as to an adult married woman and permitted limitation to run against her, and plaintiffs were all married and of legal age when appellee took the deed and set up adverse claim to all the property in 1902. R. S. art. 5684; Shook v. Laufer, 100 S. W. 1042.

No sufficient legal excuse is pleaded or proved why Joseph and Caroline Petruka did not discover and correct the alleged fraud;’ and, upon the showing made, they were themselves barred at the date of Mrs. Petruka’s death. And, if plaintiffs ever had any right to maintain a suit, they were barred before they brought it, and the court properly instructed a verdict for defendant.

Judgment is affirmed.  