Focke v. Buchanan

• Decision Date: 06 December 1900
• Citation: 59 S.W. 820
• Parties: FOCKE et al. v. BUCHANAN.
• Court: Texas Court of Appeals

Page 820

59 S.W. 820

FOCKE et al. v. BUCHANAN.

Court of Civil Appeals of Texas.

December 6, 1900.

Error from district court, Galveston county; William H. Stewart, Judge.

Suit by Focke, Wilkens & Lange against J. R. Buchanan to have a deed declared a mortgage. From a decree declaring the deed not a mortgage, and quieting plaintiffs' title to the land conveyed, plaintiffs bring error. Affirmed.

Terry, Ballinger, Smith & Lee, for plaintiffs in error. Blount & Garrison, for defendant in error.

PLEASANTS, J.

Plaintiffs in error brought this suit to recover of the defendant Buchanan the sum of $566.35, alleged to be due for goods, wares, and merchandise sold by plaintiffs to defendant, and the further sum of $3.53 as money paid out and advanced by plaintiffs for account of defendant, and to establish and foreclose a mortgage lien alleged to have been executed by defendant upon the tract of land described in the petition to secure the payment of said sums of money. The petition alleged that the instrument by which the lien sought to be foreclosed was created is in form an absolute deed, but that said instrument was intended as a mortgage, and by agreement of the parties it was to be so construed and considered, and was executed as aforesaid to secure the indebtedness above mentioned. Defendant in his answer denied any indebtedness to plaintiffs, and alleged that said deed was executed and delivered in full settlement and satisfaction of all indebtedness due plaintiffs by defendant, and was so accepted by plaintiffs, and denied that said deed was intended as a mortgage. The case was tried in the court below without the intervention of a jury, and judgment was rendered in favor of defendant, — that plaintiffs take nothing by their suit, and that defendant recover of plaintiffs all costs of suit, — and the court further decreed that the plaintiffs be quieted in their title and possession of the land described in their petition, from which judgment plaintiffs prosecute this writ of error.

We find the following as the material facts in the case, viz.:

On the 28th day of January, 1898, the defendant, being then indebted to the plaintiffs in the amount set out in the petition, less interest accruing since said date, and the item of $3.53, alleged to have been paid by plaintiffs for account of defendant, wrote plaintiffs the following letter:

"Nacogdoches, Texas, Jan. 28, 1898. Mess. Focke, Wilkens & Lange, Galveston, Texas — Gentlemen: No doubt you have been expecting me to pay you some money on my old account by Jan. 1st, and I thought that I would be able to do so, but it is impossible for me to pay you any money now. I have some property, but no money. I made very poor collections this last fall, and I am being pressed on some security debts, which, of course, I acted very wrong in going on them. Now, gentlemen, I do not intend that you shall lose any money on me, and the only thing I have to offer you is some land. Mr. Matthews, your lawyer, says you wrote to Huntsville and found this land to be worth $2.50 per acre. It cost me $5.00 per acre, and I am informed by the party that I bought the land from that he has sold some of the same land on the same tract for $5.00 per acre. I am willing to make you a deed to 157 1/10 acres of this land for my account, and will take the land back as soon as I get able to pay you the money. This will only be a fraction over $3.00 per acre for the land, and I hope you will accept my offer, as it impossible for me to pay you any money now. Let me hear from you at once. Yours, very truly, J. R. Buchanan."

In reply to this letter the plaintiffs wrote the following:

"Galveston, Texas, Jan. 29th, 1898. J. R. Buchanan, Esq., Nacogdoches, Texas — Dear Sir: We have your favor of the 28th, and regret to note that you still seem unable to make us a payment on account, which, as you admit yourself, we certainly had deserved by this time. We also note that you are being pressed by some security debts, and, taking everything into consideration, we will accept your proposition of taking a deed for the 157 1/10 acres; and if you will send us the field notes and deeds which you may have, to properly describe the land, we will write out the deed, and send it to you to have it executed, always provided, of course, that upon proper investigation we find the title to the lands perfect, or at least without serious defects. We await your favors, and remain, yours, truly, Focke, Wilkens & Lange."

Upon receipt of this, defendant sent two deeds to the land to plaintiffs, inclosed with the following letter:

"Nacogdoches, Texas, 2/1, 1898. Mess. Focke, Wilkens & Lange, Galveston, Texas — Gents: Yours of 1/29/'98 to hand, and note with pleasure that you accept my proposition; and, according to your request, I inclose you the 2 deeds to the 157 1/10 acres of land. You can have your deed drawn up and send to me, which will be promptly signed by myself and brother. Yours, truly, J. R. Buchanan."

Upon receipt of these deeds, plaintiffs had the deed from defendant to themselves prepared and sent to defendant; and same was executed by defendant and his brother, A. B. Buchanan, on the 14th day of February, 1898, and returned to plaintiffs, who at once forwarded same to Walker county, where said land was situate, and had it recorded in the deed records of said county. This deed is upon its face an absolute conveyance of the land, and contains no reservation nor condition of any kind. Plaintiffs paid for the record of the deed, and also paid taxes on the land for the year 1898; and said two items, amounting in the aggregate to the sum of $3.53, they charged to the account of defendant on their books, which account was kept open by plaintiffs after the receipt by them of said deed, and was never marked paid.

In February, 1899, the following correspondence was had between plaintiffs and defendant:

"Galveston, Texas, Feb. 22/'99. Mr. J. R. Buchanan, Nacogdoches, Texas — Dear Sir: We wrote you on Jan. 31st, and have not been favored with your reply. We will kindly ask you to now give your account proper attention, and shall be glad if you will let us hear what propo...