Baker v. Elliott
| Decision Date | 27 November 1946 |
| Docket Number | No. 2688.,2688. |
| Citation | 198 S.W.2d 152 |
| Parties | BAKER et al. v. ELLIOTT. |
| Court | Texas Court of Appeals |
Appeal from District Court, Limestone County; H. F. Kirby, Judge.
Action in trespass to try title by T. E. Elliott against Desota Baker and others, who filed a cross-action to cancel a deed to plaintiff. Judgment for plaintiff, and defendants appeal.
Affirmed.
L. L. Geren and B. L. Bradley, both of Groesbeck, and L. B. Aultman, of Mexia, for appellants.
Lewis M. Seay and Carl Cannon, both of Groesbeck, for appellee.
Appellee, T. E. Elliott, sued appellants, Arthur Baker, Desota Baker and Floyd Anglin, in trespass to try title for the recovery of 37 acres of land. Appellants answered with a plea of not guilty and by way of cross-action they affirmatively pleaded that appellee, in order to prove title to the land in dispute, would rely upon a purported deed of conveyance to him from their deceased parents, W. L. Baker and wife, dated March 12, 1940, but that such purported deed should be canceled and set aside because it was in reality a void mortgage on the homestead of the grantors and not a conveyance of the fee simple title. The case was tried before the court without a jury and resulted in judgment for appellee.
Appellants predicate their appeal on one point, viz.: "This case should be reversed and rendered because of the error of the court in holding contrary to the law and contrary to the evidence and his findings of fact that the instrument from W. L. Baker and wife, Mattie Baker, to T. E. Elliott of March 12, 1940 was a deed and not a mortgage."
Upon the trial of the case it was agreed that W. L. Baker and wife was the common source of title, appellee claiming under a deed from them and appellants claiming as their heirs at law. Appellee introduced in evidence an instrument purporting on its face to be an absolute, unconditional deed of conveyance, reciting a cash consideration of ten dollars and "other valuable consideration to us in hand paid by T. E. Elliott, the receipt of which is hereby acknowledged," with covenants of general warranty, dated March 12, 1940, executed and acknowledged in due form by W. L. Baker and wife, Mattie Baker, whereby the grantors therein sold and conveyed to appellee all their undivided interest in and to a 147 acre tract of land, including the 37 acres here in controversy. Thereupon appellee rested his case.
Having thus established prima facie a good legal title in himself to the land in dispute, appellee was entitled as a matter of law to the recovery sought by him unless appellants proved by competent evidence that the execution and delivery of the deed dated March 12, 1940 was part of a simulated transaction and that it was the true intention of the parties to such instrument that the same should operate as a mortgage on the homestead of their parents and not as an absolute conveyance of the fee simple title. In an effort to prove such facts appellants called appellee, Arthur and Desota Baker and two other witnesses to testify in their behalf.
From all the testimony adduced and the express findings of the trial court it appears that W. L. Baker inherited an undivided interest in the 147 acres of land described in the purported deed of conveyance; he and his wife occupied the particular 37 acres in controversy as their homestead for many years prior to their death; on and prior to March 12, 1940, Arthur Baker was desirous of securing from appellee four mules of the approximate value of $395; Arthur Baker, his father and appellee went to the office of an attorney and stated in substance they wanted the attorney to draw a deed of trust covering the land in controversy for the purpose of securing appellee in the payment of a debt; the attorney advised the parties in effect that a mortgage or deed of trust on homestead property would be of no force and thereupon the parties left his office; at a later time the same attorney was requested to prepare a general warranty deed covering the land in dispute and in pursuance thereof he prepared the deed above referred to; W. L. Baker and wife executed and delivered the deed; appellee then delivered the four mules to Arthur Baker who in turn disposed of the same; the 37 acres and improvements was of the approximate value of $1,200 but the accrued and unpaid taxes due against the 147 acres was approximately $1,500; appellee promptly recorded his deed but he did not render the property for taxes in his name and he permitted W. L. Baker and wife to occupy the same until they died.
The pleadings and evidence show that W. L. Baker and his wife each died some time between March 12, 1940, and the time when this suit was instituted. Whether appellee did or did not make seasonable objection to any or all of the testimony of Arthur Baker or Desota Baker relating to transactions with their deceased parents because in contravention of Art. 3716 of Vernon's Tex. Civ.Stats. is a subject of dispute between the parties to the appeal. If such objections were so made much of their testimony was inadmissible and incompetent. Appellee says such objections were made and appellants say they were not. From the record as a whole this court cannot ascertain with any degree of certainty whether or not such objections were so made. The confusion and uncertainty in the record arises from apparent conflicts in the transcript and from the unusual manner in which the statement of facts has been prepared and brought up.
On March 25, 1946, upon the conclusion of all of the...
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...it is conclusively presumed on the appeal that all issues of fact were found in such way as to support the judgment. Baker v. Elliott, Tex.Civ.App., 198 S.W.2d 152; Williams v. Ritcheson, Tex.Civ.App., 212 S.W.2d 813.' Chalmers v. Kimbrough, Tex.Civ.App., 227 S.W.2d 615, 616, 'It is the set......
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...it is conclusively presumed on the appeal that all issues of fact were found in such way as to support the judgment. Baker v. Elliott, Tex.Civ.App., 198 S.W.2d 152; Williams v. Ritcheson, Tex.Civ.App., 212 S.W.2d Wherefore, it is permissible, if not required, that the precise ground on whic......
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