Anderson v. Freeman

• Decision Date: 27 February 1907
• Parties: ANDERSON v. FREEMAN.
• Court: Texas Court of Appeals

100 S.W. 350

ANDERSON v. FREEMAN.

Court of Civil Appeals of Texas.

February 27, 1907.

Appeal from McLennan County Court; J. W. Baker, Judge.

Action by J. A. Freeman against Violet Anderson. Judgment for plaintiff. Defendant appeals. Reversed and rendered.

J. E. Yantis, for appellant. N. B. Williams, for appellee.

FISHER, J.

This is a suit by the appellee, Freeman, against the appellant on a promissory note for $289.90, and to foreclose a chattel mortgage upon certain furniture owned by the appellant. The defendant pleaded usury; also that the consideration for the note was illegal and for the immoral purpose of enabling appellant to use the furniture in question in carrying on and conducting a house of public prostitution. After allowing certain credits the trial court entered judgment in favor of plaintiff for a part of the note sued on, and foreclosed the mortgage lien. The court sustained a demurrer to that part of appellant's answer that pleaded that the consideration of the note sued on was advances made for the immoral and illegal purpose of enabling the appellant to continue in the business of operating a house of public prostitution.

There is an assignment of error that complains of the action of the court in sustaining this demurrer; but it appears from the record that the evidence principally introduced upon the trial of the case relates to this issue, and it appears that it was so treated by the court, and was considered below, although the effect of the action of the court in deciding finally in favor of appellee was a holding to the effect that the evidence was not sufficient to establish the defense pleaded. In view of this, and in view of the fact that the appellee insists that we give effect to the evidence, we have concluded to give it consideration; and especially should we do so in cases of this character, where the court has the authority to consider the evidence, independent of any question of pleading, when it appears from the facts that the contract which forms the basis of the action is illegal, or is based upon an immoral or illegal consideration. We are not going to discuss the evidence in order to demonstrate the correctness of the conclusion we have reached; but we merely say that the conclusion and inference to be drawn from the undisputed evidence in the record is to the effect that the transactions that culminated in taking up the Sadie Beard note and mortgage was to enable the appellant to continue the unlawful...