Davis v. Brewster

• Decision Date: 09 March 1883
• Docket Number: Case No. 1574.
• Citation: 59 Tex. 93
• Parties: GEORGIA A. DAVIS ET AL. v. ROBERT BREWSTER ET AL.
• Court: Texas Supreme Court

59 Tex. 93

GEORGIA A. DAVIS ET AL.

v.ROBERT BREWSTER ET AL.

Case No. 1574.

Supreme Court of Texas.

Mar. 9, 1883.

APPEAL from Harris. Tried below before the Hon. James Masterson.

Suit by appellants to set aside a deed executed by them, which purported to convey lots in Houston.

The grounds alleged for the relief sought were, that the property which the deed purported to convey was the homestead of Davis and wife at its date, and had been such for more than seven years next preceding the date of its execution, and had been such ever since; that the deed, whilst on its face absolute, was in fact but a mortgage to secure Baker, Brewster and Rice for what they might have to pay as sureties on the bonds of Nelson T. Davis as tax collector of Harris county; that the same was so understood, and was accepted by the grantees, and delivered by the grantors with that understanding and agreement; that no consideration was paid for the deed, or agreed to be paid; and that it was understood and agreed, by and between all the parties, that if the grantees had nothing to pay as such sureties, the deed was to amount to nothing, and the property was to remain the property of Davis and wife.

The petition further alleged that Mrs. Davis was induced and persuaded to sign the deed by the promises and representations of the grantees, that if the deed was executed for the purposes stated, they would protect Nelson T. Davis from any criminal prosecution by reason of his acts as tax collector, and out of which it was claimed the liability the deed was given to secure had grown; that under said deed the grantees were claiming said lots, and a cloud had been cast on plaintiff's title by reason of said deed and claim thereunder; that plaintiff's husband, Nelson T. Davis, refused to join in the suit, and that therefore he was made a defendant.

Nelson T. Davis answered, admitting that he had declined joining his wife in the suit, but that then he did join her, and reiterated the allegations of her petition, and joined in asking the relief prayed for in her petition.

The defendants Brewster and Rice filed their first amended original answer. in which they alleged, in substance, that the deed was an absolute deed, and was so understood, executed and accepted.

Verdict and judgment for defendants.

Jones & Garnett, for appellant, cited 1 Story's Equity, sec. 165; Watkins v. Edwards, 23 Tex., 447;Wall v. Arrington, 13 Ga., 89;Strong v. Beach, 11 Ohio St., 283.

Baker & Botts, for appellees, cited 1 Jones on Mortgages, sec. 335; Cuney v. Dupree, 21 Tex., 211, 219;Grooms v. Rust, 27 Tex., 231;Brewster v. Davis, 56 Tex., 479;Fieldman v. Gamble, 26 N. J. Eq., 494;Stuart v. Philps, 39 Iowa, 14;Brighan v. Potter, 14 Gray (Mass.), 522;Ward v. Bledsoe, 32 Tex., 251;Powell v. Haley, 28 Tex., 56, 760;Baldridge v. Gordon, 24 Tex., 288;Briscoe v. Bronaugh, 1 Tex., 326;Montgomery v. Culton, 23 Tex., 156, 639;Alley v. Booth, 16 Tex., 94;Jones and Wife v. Williams, 41 Tex., 390;Norvell v. Oury, 13 Tex., 31;Davis v. Loftin, 6 Tex., 489;Linn v. Wright, 18 Tex., 340;O'Connell v. State, 18 Tex., 363;Robinson v. Varnell, 16 Tex., 387;Johnson v. Granger, 51 Tex., 42;Fowler v. Waller, 25 Tex., 695;Farquhar v. Dallas, 20 Tex., 200;Thompson v. Payne, 21 Tex., 621.

STAYTON, ASSOCIATE JUSTICE.

This cause was before this court at the last term and is reported in 56 Tex., 479.

It was then remanded because there was no evidence directly showing that the defendants were aware of any want of intention by Mrs. Davis to pass the absolute title to the property in controversy by the instrument executed by herself and husband, and for want of certainty and clearness in the proof. It is claimed now, as it was upon the former appeal by the plaintiff, that the deed was executed solely to secure the defendants, in so far as it would do so, against their liability upon the bonds of N. T. Davis as sureties, and that it was intended by all parties simply as a mortgage, while by the defendants it is claimed that the instrument was intended for what it appears upon its face to be--an absolute conveyance.

On the former trial Nelson T. Davis did not testify, and the case for the plaintiffs rested upon the testimony of Mrs. Davis and two of the defendants.

On the last trial the plaintiffs rest their case upon the testimony of themselves, and the defendants upon the testimony of the defendants Baker and Brewster.

Each side testify unqualifiedly to a state of facts consistent with their respective pleadings.

Among other things, N. T. Davis testified as follows: “Baker, Brewster and Rice induced my wife to execute the deed by means of the statements, threats and promises which they made to me and which I have before stated, and which I truthfully and fully detailed to her in August, 1881. There was an understanding between Baker, Brewster, Rice and myself authorizing me to make these statements to my wife. They knew she was the owner of the property, and that it was necessary for her to sign the deed to it. Their statements were made to me with the intent and purpose that I should repeat them to her, and by such means frighten her and induce her to sign the deed. The deed was on its face an absolute conveyance, but it was delivered upon the condition that it was to be deeded back to my wife if nothing was obtained in judgment against said Baker, Brewster and Rice by the county or state. The deed was in no event to be an...