59 Tex. 93 (Tex. 1883), 1574, Davis v. Brewster
|Citation:||59 Tex. 93|
|Opinion Judge:||STAYTON, ASSOCIATE JUSTICE.|
|Party Name:||GEORGIA A. DAVIS ET AL. v. ROBERT BREWSTER ET AL.|
|Attorney:||Jones & Garnett, for appellant, Baker & Botts, for appellees|
|Case Date:||March 09, 1883|
|Court:||Supreme Court of Texas|
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.
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