Austin v. Rupe

• Decision Date: 11 November 1911
• Citation: 141 S.W. 547
• Parties: AUSTIN et al. v. RUPE et al.
• Court: Texas Court of Appeals

141 S.W. 547

AUSTIN et al. v. RUPE et al.

Court of Civil Appeals of Texas. Dallas.

November 11, 1911.

Rehearing Denied December 9, 1911.

Appeal from District Court, Van Zandt County; R. W. Simpson, Judge.

Action by Ruth E. Rupe and others against W. D. Austin and another. From a judgment for plaintiffs against defendant named, he appeals. Reversed and remanded.

T. B. Ridgell and I. J. Austin, for appellant. T. R. Yantis and Allen & Allen, for appellees.

RAINEY, C. J.

Ruth E. Rupe and Orlena, Sallie, and Albert Rupe, widow and children of S. C. Rupe, deceased, appellees, brought this suit against W. D. Austin and G. C. Rochell to set aside and cancel a certain deed of conveyance executed by the said S. C. Rupe and Ruth E. Rupe on October 31, 1906, to said W. D. Austin. The consideration expressed in said conveyance was $5,000 cash and three promissory notes for $1,000 each, made by said Austin, due, respectively, January 1, 1909, 1910, and 1911, reserving a vendor's lien to secure payment of same and payable to S. C. Rupe, said conveyance conveying 391 acres of land in Van Zandt county, which was the homestead of the said S. C. and Ruth E. Rupe. At the same time said Austin conveyed to S. C. Rupe two brick buildings in the town of Rockwall, the consideration recited being $5,000; the land mentioned in both conveyances being incumbered, which incumbrances said Austin was to pay off and discharge. The petition, in effect, alleged as grounds for setting aside and canceling said conveyances that Austin and his agent by false representations deceived Ruth E. Rupe, and she, relying thereon, was induced to sign said conveyance. Austin answered by general and special demurrer, not guilty, specially that the considerations expressed in the deeds were not the true considerations, but that they exchanged properties, he putting in his building at $5,000, and Rupe's property was put in at $6,480; that Austin assumed the incumbrances on both tracts, and that the three notes of $1,000 each were not a part of the consideration of the Van Zandt county land, and not to be paid by him, but were executed by him to indemnify Rupe against the liens on the Rockwall buildings; that Rupe and he had a settlement of all matters connected with said transaction and said notes had been discharged. Rochell answered that he bought the land from Austin, paying value without notice, and was therefore an innocent purchaser. Appellants filed a supplemental petition setting up the three notes and praying for judgment thereon in the event they were not permitted a recovery for the land. A trial was had, and under peremptory instructions a verdict was returned in favor of Rochell, and verdict and judgment were rendered for plaintiffs against Austin for the amount of the notes, principal, interest, and attorney's fees. From this judgment Austin alone appeals.

The court, over appellant's objection, permitted Ruth E. Rupe to testify as follows: "When I saw this $5,000 cash mentioned in the deed, which we were to give for the brick building, I said, `I won't sign the doggone thing at all, because it won't pay 5 per cent. interest on the $5,000 he has wrote up;' and I said, `I won't sign it.' I refused to sign the deed on that account, and, when that other deed was made, I said, `We have got other notes to pay up and then paying way up yonder.' I said, `I won't give $5,000 for the brick buildings, for it won't pay 5 per cent. interest renting at $20 per month;' and then Mr. Mason spoke up, and said, `Mrs. Rupe, your indebtedness is taken up in the $5,000, and your deed and notes is all right;' and then I signed them deeds to my home." The objection made to this testimony was that it was hearsay, that Mason had no authority to make such representation on behalf of appellant, and therefore it was...