Edrington v. Newland

• Decision Date: 31 October 1882
• Docket Number: Case No. 1196-196.
• Citation: 57 Tex. 627
• Parties: JAMES F. EDRINGTON v. JAMES S. NEWLAND ET AL.
• Court: Texas Supreme Court

57 Tex. 627

JAMES F. EDRINGTON

v.JAMES S. NEWLAND ET AL.

Case No. 1196-196.

Supreme Court of Texas.

Oct. 31, 1882.

APPEAL from Brazos. Tried below before the Hon. Spencer Ford.

Action of trespass to try title, brought by Edrington against Newland, to recover two certain lots described in the petition, lying in the city of Bryan, with the houses and improvements thereon. Simultaneously with the filing of the petition, with appropriate allegations therefor, the plaintiff prayed for and sued out against the property a writ of sequestration on the 13th of December, 1877, which was executed the same day by the sheriff. The defendant did not replevy; he answered by a general demurrer and general denial. He also filed a special answer alleging the property to be his homestead, and setting up that the pretended title of plaintiff, while a deed absolute upon its face, was nothing more than a security for a sum of money, with excessive usurious interest thereon, advanced by plaintiff for defendant's use. He further specially answered, alleging, amongst other things, that the property then being his homestead, on 16th day of February, 1876, he executed to John N. Henderson, Esq., in satisfaction for a claim he held against him for collection, a deed of trust upon the property in question; that the deed of trust was paid April 15, 1876, by one Moore, who took a transfer from Henderson of the debt and lien; that on June 7, 1876, Henderson foreclosed the lien, and Moore purchased the property for $125 and took Henderson's deed, and used the same to coerce out of appellee an amount of money in excess of the original demand (which was about $200), and that it was this money ($280) which plaintiff had advanced to Moore for defendant's use, and took Moore's deed to the property as security for the same, with five per cent. per month interest. It was also alleged that Mrs. Newland, who was a party to the original lien, was not consulted about these subsequent changes in the title, she being all the while in the use and enjoyment of the property as a homestead. This answer also set up that at the time the deed was executed by Moore to Edrington, it was the understanding between them and appellee that the same was but a security to Edrington, and also setting out that appellee executed to Edrington a lease for the property, specifying a certain rental per month, which was but a device to cover the usurious interest.

Appellee further specially answered to the effect: That from the transaction of 16th of February, 1876, down to and including that by which plaintiff secured his deed from Moore, there had subsisted in himself and family, recognized by all parties, an equity and right to redeem the property upon the payment of the original debt and its incidents in the way of costs, interests, expenses, etc., and that this equity ran through every changing phase of the title, and that it was ratified and admitted by plaintiff when he advanced the money and got his deed, and insisting that the right to redeem was a necessary sequence from the facts.

Appellee and his wife also pleaded in reconvention for damages, actual and punitive, setting up facts to sustain the plea in each regard.

Plaintiff replied to these defenses by way of general demurrer and general denial. The cause was tried before a jury, September 9, 1878, and resulted in a general verdict for defendant, and for $300 actual and $100 vindictive damages, and judgment.

There was a motion for a new trial by plaintiff, which was overruled by the court, and notice of appeal given. The plaintiff below brought the cause up on appeal, assigning errors in the record upon the action of the court in overruling his demurrer to defendant's answers; the charge of the court as given to the jury; the refusal of the court to give instructions asked by him upon the admission of evidence, and in overruling the motion for new trial, and upon other grounds.

Amongst other evidence in the case the proof showed a deed of trust (and note) upon the property, February 16, 1876; transfer of trust to H. A. Moore, and foreclosure and purchase by him, June 6, 1876; deed from Moore to Edrington, June 22, 1876, and lease of same date to defendant by Edrington for six months, and possession by defendant. Uniform and continued possession by Newland from a long while before these transactions down to sequestration by plaintiff. Newland testified that the tenancy was in fact to be a continuous one on conditions, and the deed to plaintiff executed with that understanding; that plaintiff never called upon him for any rent or the interest upon his money, and brought the suit without other notice. Newland's testimony as to the terms of the contract are stated briefly in the opinion; and also that he furnished Edrington $105.50 to pay Moore in the purchase made from the latter; and also that he paid $52.50 as interest, but in the shape of rent of the premises for six months. Edrington testified that he demanded possession of the property through his attorney, Taliaferro, before suit. Taliaferro swore that no demand was made through him. Edrington also swore that, being applied to by Newland for money to redeem the property from Moore with an offer to execute a lien for security, he refused the lien, but agreed to buy and take the deed in his own name, and permit Newland to remain in possession until an amount of the purchase money paid by Newland was paid by rents. Edrington also swore that of the consideration for the deed, $280, Newland paid $90, or less than $100, and Newland swore that he furnished $105.50, and Edrington $174.50. There was no other proof of notice to quit or demand for rents than above stated, and no question about the unbroken possession of Newland down to inception of suit. Edrington placed the value of the property at $600, and another witness at $300 to $500, “probably more.”

The court charged the jury as follows:

1. “This being an action brought, not for the recovery of a judgment for money, but to try the titles to the lots in question, and for their recovery, the plaintiff must recover, if at all, upon the strength of his title to said lots read in evidence.

2. The legal effect of the deeds read in evidence, from Newland and wife to Henderson, from Henderson to Moore, and from Moore to plaintiff, in the absence of other evidence changing the legal effect upon the face of them, would be to vest in plaintiff the title to the lots in suit and to enable him to recover in this suit, and you will therefore find in his favor, unless you find otherwise under charges following.

3. If the evidence shows you that there was any contract between plaintiff and defendant by which the deed from Moore to plaintiff was procured to be executed, and as to whether said deed was to be taken by plaintiff as a security for money loaned defendant or not, then the rule of law is, that the understanding and agreement of the plaintiff and defendant, at the time the deed was executed, must determine the nature of the contract and the rights of the parties under said deed, and it is the duty of the jury, therefore, to consider and weigh all the evidence before them, and from it ascertain what the understanding and agreement, if any, was.

4. If it is not shown by the evidence that it was the agreement between plaintiff and defendant, that the purchase money paid by plaintiff to Moore was advanced as a loan to defendant, then you will find for plaintiff.

5. If, however, the jury believe, from the evidence, that the defendant furnished a portion of the purchase money to pay Moore for the lots, and that plaintiff furnished the balance as a loan to defendant, and the amounts so furnished were by plaintiff paid to Moore, and the deed taken to plaintiff with the understanding between plaintiff and defendant that defendant should pay to plaintiff the amount so furnished by him, together with interest or rent for the property until so paid, and that when so paid the plaintiff would convey the lots to defendant, then, although the deed purports on its face to convey the absolute title to plaintiff, it does not in law convey to him any right which will enable him to recover in this action, and you will find for defendant.”

The plaintiff asked the court to give the following instructions, both of which were refused:

1st. “The jury are instructed that the legal effect of the deed from Moore to plaintiff was to vest the title to the land in controversy in plaintiff.

2d. If the jury find, from the evidence, that it was the understanding between Newland and plaintiff, at the time of the execution of said deed, that plaintiff should advance the purchase money in whole or in part, and that the deed should be taken in the name of and delivered to plaintiff to be held as a security for the purchase money paid, and if you further find that defendant failed to pay back the purchase money so paid by plaintiff, then you will find for the plaintiff.”

Davis & Beall and Taliaferro, for appellant.

I. The deed of trust from defendants to Henderson, and the conveyance from Henderson, as trustee, to Moore, divested all title, legal and equitable, out of defendants and vested it in Moore, and the subsequent purchase of the property by plaintiff from Moore, his payment of the purchase money, and the conveyance from Moore to him, vested the legal title in plaintiff; and notwithstanding there may have been an agreement, at the time of the purchase, between plaintif...