Edwards v. White

• Decision Date: 27 May 1909
• Citation: 120 S.W. 914
• Parties: EDWARDS v. WHITE et al.
• Court: Texas Court of Appeals

Page 914

120 S.W. 914

EDWARDS v. WHITE et al.

Court of Civil Appeals of Texas.

May 27, 1909.

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

Action by J. A. Edwards against Amanda White and others. From a judgment for defendants, plaintiff appeals. Affirmed.

By his deed dated January 11, 1904, J. W. Mink conveyed 93 acres of land in Smith county to Will White. By his note bearing the same date as the deed to him, White promised to pay said Mink or bearer on November 1, 1904, $300, interest, etc., and by his other note of the same date promised to pay said Mink or bearer on November 1, 1905, $300, interest, etc. The deed referred to the notes and recited that they were the consideration for the execution thereof by Mink and that to secure their payment the vendor's lien had been reserved on the land. The notes contained similar recitals. At the time the deed and notes were executed, White with his family was living on the land and had been living on it since 1894. He died in the spring of 1905, leaving surviving him his wife and nine children, several of whom were minors at the time the litigation resulting in the judgment from which this appeal is prosecuted was commenced. At the time of his death, he, with his family, was residing upon the land described in Mink's deed to him, and after his death his surviving wife and minor children continued to reside upon it. Mink died in November, 1905, leaving as his heirs his sister, appellant's wife, and five others, his brothers and sisters. With money inherited by her from said Mink's estate, appellant's wife, about March, 1906, purchased the undivided interests, as heirs of said Mink, of her brothers and sisters in and to the notes referred to, and so became the sole owner thereof. The suit was brought by her husband, appellant, against the surviving wife and children of Will White, and in his petition he prayed that he have a judgment against appellees for the amount due on the notes, and costs, that the notes be declared to constitute a vendor's lien on the land, and that the lien be foreclosed, the land sold, and the proceeds of such sale applied to the payment of the notes and costs. In their answer appellees alleged as a defense to the suit: That four years before the date of the execution of the deed referred to White and his surviving wife bought the land of J. W. Mink and fully paid him for the same; that said Mink did not then convey the land to them, but conveyed it by the deed referred to above; that after said White and his wife had bought and paid for the land, and before it was conveyed to them, said White became indebted to said Mink in the sum represented by the notes; and that the notes were executed by White and the lien acknowledged by him to secure this indebtedness, and not an indebtedness on account of the purchase money of the land. Appellees further alleged that the land at the date the notes were executed, long prior thereto, and at the date of his death, was the homestead of White and his family, and after his death continued to be the homestead of his surviving wife. Appellant pleaded in reply that, by reciting in the notes that they were given for the purchase money of the land, Will White became estopped to deny that they were so given, and that appellees, as his heirs, were bound by such estoppel as against said White.

The trial was by the court without a jury. His conclusions of fact and law were as follows:

"Conclusions of fact: Will White, deceased, and his family, moved on the land, against which the vendor's lien is herein sought to be foreclosed, in the year 1894, and continued to live on same with his family until his death in 1905, and the defendant Amanda White, and her minor children and Joe White (all defendants herein) have lived there since, and reside on same now. In the year 1897 Will White, deceased, made a contract with J. W. Mink to purchase the land herein in controversy, the terms of which contract of purchase the court, from the evidence, is unable to determine. From 1897 to October 15, 1900, the said Will White made payments along on said land, and on the said last-named date the said Will White finished paying for said land, as is evidenced by receipt introduced in evidence, as follows: `Whitehouse, Tex., October 15, 1900. Received of Will White thirty-two pounds of cotton in full payment for land. [Signed] J. W. Mink.' The court finds that the said Will White bought no other land from the said J. W. Mink than the land in controversy in this suit, and that the receipt has reference to such land. The said J. W. Mink did not give the said Will White a deed to said land when said receipt was given. On January 11, 1904, the said J. W. Mink executed his deed to said land to said Will White, and the said Will White executed the notes described in the foregoing `Conclusions of Court.' The court finds that at the time said deed was executed the said Will White was the owner of same, having finished paying for same in full in the year 1900, and he and his family were using and occupying same as their homestead, and the said notes constituted but a lien given by the said Will White on his homestead, and were not given as a part of the purchase money for said land.

"Conclusions of law. The notes herein sued upon were an attempt to mortgage the homestead and in law created no lien upon the land in controversy. The proof failing to show that any of the estate of Will White, deceased, passed into hands of defendants. In fact, the proof failing to show that said White left any estate, no judgment can be rendered against his legal representatives in this suit."

Johnson & Edwards, for appellant. Hanson & Robertson, for appellees.

WILLSON, C. J. (after stating the facts as above).

On the trial, after Joe White, one of the appellees, had testified as a witness for appellees that his father, Will White, moved onto the land in 1894, and with his family occupied it as a home until his death, and that his father during the time owned no other land in Smith county, appellant interposed the following objection: "We object to this witness testifying to any transactions with or statements by the deceased Will White. He is one of the heirs. They are inhibited by statute from testifying to any transactions with or statements by the deceased. Your honor will disregard any testimony that is contrary to the statutory rule?" The Court: "Yes, sir; I will disregard such testimony." The examination of the witness by appellees then proceeded as follows: "Q. Did you ever carry any cotton to J. W. Mink for any purpose, Joe? A. Yes, sir; paying for the land we now own, the land in controversy. Q. How many bales of cotton were to have been paid for that land, Joe? A. Eighteen bales. Q. Did you in person deliver those bales to him? A. Yes, sir; I remember what time I delivered the last part of that cotton. Q. I wish you would look at that and see if you ever saw it before. (Counsel exhibited to witness a writing.) A. Yes, sir; this is a receipt signed by J. W. Mink. I was present when he signed it and saw him sign it. The said receipt was here introduced in evidence by defendants, to wit: `Whitehouse, Tex., October 15, 1900. Received of Will White thirty-two pounds of cotton in full payment for land. [Signed] J. W. Mink.' Mr. Edwards, plaintiff's attorney: I object to the testimony of this witness to the effect that he delivered cotton to J. W. Mink for his father, Will White. It is obnoxious to the objection made a while ago.'" The court overruled the objection, and after excepting to the ruling appellant cross-examined the witness at length about the delivery by him of cotton to J. W. Mink, and proved by him that Will White had never bought from Mink any other land than that in controversy and had never paid Mink anything on account of any other land. At the conclusion of his cross-examination of the witness, appellant moved the court to strike out and disregard the testimony of the witness in regard to delivery of cotton to Mink as payments on the land, and to the effect that his father had not purchased of nor paid Mink anything on account of any other land. The motion was overruled, and appellant excepted to the ruling.

We do not think the court erred in refusing to strike out the testimony of the witness showing that his father had not purchased other land than that in controversy of Mink. Substantially the same fact was proven without objection by the testimony of the witness Rushing; and, besides, appellees had not sought to prove and had not proven by the witness anything about other land...