Clark v. Haney

• Decision Date: 28 November 1884
• Docket Number: Case No. 1765.
• Citation: 62 Tex. 511
• Parties: V. I. CLARK v. N. B. HANEY.
• Court: Texas Supreme Court

62 Tex. 511

V. I. CLARK

v.N. B. HANEY.

Case No. 1765.

Supreme Court of Texas.

Nov. 28, 1884.

APPEAL from Hunt. Tried below before the Hon. Green J. Clark.

Matthews & Neyland and T. D. Montrose, for appellant, cited, on proposition that the deed was a trust deed: Loving v. Milliken, 59 Tex., 425;Gibbs v. Penny, 43 Tex., 561;De Bruhl v. Maas, 54 Tex., 464; Jones on Mortgages, vol. 1, sec. 241 et seq.

Perkins, Gilbert & Perkins, for appellee, cited: R. S., arts. 559 and 4310; Cannon v. Boutwell, 53 Tex., 626;Hall v. Dotson, 55 Tex., 520;Calhoun v. Lumpkin, 60 Tex., 185; Browne, Stat. Frauds, sec. 439 and notes, and sec. 445a; Sweet v. Mitchell, 15 Wis., 641;Rasdall v. Rasdall, 9 Wis., 379;Bandor v. Snyder, 5 Barb., 63;7 Id., 59.

WILLIE, CHIEF JUSTICE.

There is nothing in the objection taken to the petition that it does not show who is the plaintiff nor what is her name. The caption states the name of the case as “V. I. Clark v. N. B. Haney,” which is a sufficient indication of who are the parties, and which is plaintiff and which defendant, and the statement in the body of the petition, that the allegations are made by the plaintiff, sufficiently points out the person bringing the suit. The petition was an amended original petition, filed in lieu of a former pleading, and the proceedings in the cause must have shown clearly the name of the party plaintiff, and rendered certain the person designated as plaintiff in the amended petition.

The allegation that the representations and promises, upon which the defendant procured the deed to the lands in controversy, were made by him on the 27th of May, 1882, is evidently a clerical error, as is apparent from the face of the petition itself. For it is averred that the plaintiff, trusting the representations and promises of the defendant as to how he would hold the lands and for what purposes he would dispose of them, joined her husband in executing the deed dated January 27, 1882. Of course the plaintiff could not, in making the deed, have relied upon promises which were not made till four months after the deed was executed and delivered. The petition must be construed as alleging that the promises antedated the making of the deed.

The facts upon which it is sought to establish, in the lands conveyed to defendant, a trust for the benefit of the plaintiff as alleged in the petition, are about these: Plaintiff and her husband were indebted to Haney in the sum of $1,350, evidenced by their joint notes, which were secured by a mortgage upon the lands conveyed. These lands were the separate property of Mrs. V. I. Clark, and were worth $10,000. Haney threatened to foreclose his mortgage if the notes were not paid. Mrs. Clark being unable to pay the notes, Haney demanded that a deed for the land be made to him for the amount of the indebtedness, which she refused to do, as the land was worth so much more than the debt. Failing in this, Haney then pretended to be dissatisfied with the mortgage security, and proposed that if Mrs. Clark and her husband would make him a deed for the land absolute on its face, he would give up the notes and would endeavor to sell the land, or a part of it, at private sale at its highest market value, and after satisfying his claim against plaintiff and her husband would pay over to her the remainder of the money arising from said sales, or convey to her the remainder of the land unsold after satisfaction of the debt. As an inducement to do this, he stated that he was a shrewd business man, and a man of means, and could get a better price for the land than she or her husband. Purchasers would expect to give him the full value, whilst they would expect to buy from plaintiff and her husband at a reduced rate, as they would probably be selling at a sacrifice to raise money, as they were known to be greatly in want of it. That her husband was a dissipated, improvident man, incapable of protecting her interests, and that the arrangement would be greatly to her benefit. As the defendant's undertaking was to be by parol, Mrs. Clark feared it would not be binding upon him, and for this reason objected to it and declined to sign the deed. Haney then prevailed upon her to go with him to a lawyer's office, who, upon hearing of the proposed arrangement, pronounced it as binding as if reduced to writing and signed by the defendant.

Thereupon the plaintiff, trusting in the representations and promises of defendant, and the advice of his attorney, joined her husband in executing the deed, and delivered possession of the premises to the defendant. She also alleges that, upon the delivery of the deed, Haney delivered up the notes of herself and husband, but the deed was not intended to cancel the indebtedness, and was not a conveyance in payment of the note, but, though absolute on its face, was given in lieu of the mortgage, and for the more satisfactory security of the indebtedness to the defendant, and to...