Eulenfeld v. Weber

428 S.W.2d 383, 1968 Tex. App. LEXIS 2595
Court of Appeals of Texas·Decided May 8, 1968·No. No. 11607·Published·Cited by 3 cases

Opinions

PHILLIPS, Chief Justice.

The appellants here were the plaintiffs in the trial court and brought their suit against the defendants, appellees, to set aside two deeds executed by Anna Eulen-feld, now deceased. Anna Eulenfeld executed a deed to a house and lot in Taylor, Texas, on the 31st day of May 1955 when she was 91 years of age and conveyed the property to Amanda Weber one of the defendants below and one of the appellees here. On June 17, 1958 Anna Eulenfeld executed a deed to 100 acres of land to Amanda Weber and her husband H. L. Weber, the latter also being a defendant below and an appellee here. At the time of the latter conveyance, Anna Eulenfeld was 94 years old. She died in April of 1959.

The suit was brought to cancel and set aside both of the deeds referred to above on the grounds that Anna Eulenfeld was a person of unsound mind on the date that she made the conveyances in question and that both of the deeds should be set aside for lack of consideration. The deed to the house and lot recited a consideration of $4,400, was dated May 31, 1955 and was filed for record on June 2, 1955. This deed displayed the proper number of revenue stamps for the recited consideration. The deed to the 100 acres of land was dated June 17, 1958, recited a consideration of $10.00 and other good and valuable consideration, and the further consideration of “Grantees having cared for me for the past eight years.” This latter deed was filed for record May 19, 1959, after Anna Eulenfeld’s death, and displayed no revenue stamps.

Trial was to a jury, however at the end of plaintiffs’ testimony, defendants moved for a directed verdict which motion was sustained by the court. The court then instructed the jury to find for the defendants (appellees) and thereafter a take nothing judgment was entered.

We reverse the judgment of the trial court and remand the cause for trial.

All of the parties to this suit claim under Anna Eulenfeld. The appellants are three of her children, Emma Rummel, Mary and R. W. Eulenfeld. The only adverse parties before this Court are Amanda Weber, a daughter of Anna Eulenfeld, and her husband H. L. Weber.

[385]*385On the trial of this cause there was admitted in evidence, without limitation, the following affidavit of H. L. and Amanda Weber and others:

“IDA KEIL, ET AL 1 THE STATE OF TEXAS l AFFIDAVIT THE PUBLIC COUNTY OF WILLIAMSON J
Before me, the undersigned authority, on this day personally appeared Ida Keil, Amanda Weber, Minnie Frederick, P_. J. Frederick, and H L Weber, known to me to be credible persons, and who after being by me duly sworn in accordance with law, each of the above named witnesses depose and say:
Affiants, Ida Keil and Amanda Weber, and Minnie Frederick, say that they are daughters of Anna Eulenfield; that the said Anna Eulen-field is a widow, the surviving wife of Henry Eulenfield, deceased; that she will be 81 years of age August 1st, 1944; that for the past several years she has been in very delicate health, very feeble and does not possess sufficient mentality to transact her business and does not understand the nature of her business; that the said Anna Eulenfield is the owner of considerable property, both real and personal, situated in Williamson County, Texas, and that she does not possess sufficient mentality to properly attend to her business affairs, and especially is she incapable of selling, conveying or exchanging her said properties, and she does not have sufficient will power of sufficient mentality to properly transact business matters and is easily influenced by others to do things which are not to her best interest but detrimental to her and her property; that the said Anna Eulenfield does not have any guardian of her person and estate.
Affiants say that this affidavit is made and is to be placed of record in Williamson County, Texas, where her said property is situated for the purposes of giving notice to any person or persons dealing with the said Anna Eulenfteld, that she does not possess sufficient mentality to transact the ordinary business affairs of life.
Affiants, P J Frederick and H L Weber, each say that they have personally known the said Anna Eulenfield for a period of more than twenty-five (25) years, and that they know of their own knowledge that she does not now, by reason of her physical condition and her extreme age, possess sufficient mentality to transact the ordinary business affairs of life, and that she is incapable of attending to her business matters.
Witness our hands, this the 27th day of May A D 1944.
IDA KEIL
MINNIE FREDERICK
PAUL J FREDERICK
H L WEBER
AMANDA WEBER
and sworn to before me, this the 27th day of May A D 1944. Subscribed
W C WOFFORD, Notary Public in and for Williamson County, Texas” (LS)

[386]*386This affidavit was acknowledged before a Notary Public and filed for record in Williamson County on May 29, 1944.

Regarding this affidavit H. L. Weber testified:

“Q You signed it, didn’t you?
A I did, yes.
Q Your wife signed it, didn’t she?
A Yes, sir.
Q You both swore to it, didn’t you?
A Yes, sir.
Q That was in 1944, wasn’t it, Mr. Weber?
A That’s what it says here.
Q And you said at that time, because of her extreme age and her physical condition, that she was not capable of transacting business didn’t you?
A That’s what it says here.
Q That’s what you swore to, wasn’t it, Mr. Weber?
A That’s right.
Q Mr. Weber, you wouldn’t have sworn that Anna Eulenfeld was mentally incompetent unless you felt that she was mentally incompetent, would you?
A No. I’ll tell you the whole story about that.
Q I asked you a question. You wouldn’t have sworn to a lie, would you?
A No.
Q In other words, that affidavit was true when you signed it ?
A At that time, yes.
Q All right. In other words, in 1944, she was incapable, is that right?
A Well, we signed it. I guess so, what we signed there.
Q What you signed was the truth?
A Yes.”

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Eulenfeld v. Weber, 428 S.W.2d 383, 1968 Tex. App. LEXIS 2595 (Tex. Ct. App. 1968).

428 S.W.2d 383 (Eulenfeld v. Weber) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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