Graves v. Kinney

• Citation: 66 S.W. 293
• Parties: GRAVES v. KINNEY et al.
• Decision Date: 31 January 1902
• Court: Supreme Court of Texas

66 S.W. 293

GRAVES v. KINNEY et al.

Supreme Court of Texas.

January 31, 1902.

Error from court of civil appeals of Third supreme judicial district.

Action by D. P. Kinney against Elizabeth J. Graves and others. From a judgment of the court of civil appeals (64 S. W. 1094) affirming a judgment of the district court in favor of plaintiff, defendant Elizabeth J. Graves brings error. Affirmed.

W. M. Walton and A. S. Phelps, for plaintiff in error. Moore & Moore and M. C. Granberry, for defendant in error Kinney. D. W. Doom and D. H. Doom, for defendant in error Richardson.

WILLIAMS, J.

As appears from the conclusions of the trial judge, the place in controversy was the homestead of I. B. and Elizabeth J. Graves, and they were in possession of it as such throughout the transactions in question. I. B. Graves and M. H. McLaurin, in order to raise money for purposes of their own upon the security of the homestead, agreed upon a plan by which Graves and wife were to make a deed to McLaurin for the place, and the latter was to execute his note to Graves, pretendedly for part of the purchase money. A deed was prepared for signature by Graves and wife, reciting as its consideration a cash payment of $1,700 and a note for $1,100, and purporting to convey the property to McLaurin. This was presented to Mrs. Graves for execution, and she was induced to believe that it was intended, according to its purport, to effect a real sale of the property. She at first objected, but, upon the promise of her husband that the proceeds should be invested in another home, finally assented, and executed and acknowledged the deed, still believing that the transaction was a real sale for the recited consideration. No money was paid by McLaurin, nor was there any purpose on his and Graves' part to make a real sale and purchase; their scheme being to raise money upon the note. The deed, properly executed and acknowledged, was delivered to McLaurin and placed of record, and the note recited in it was executed to Graves. Graves assigned the note to J. P. Richardson for full value before its maturity; Richardson having no notice of the true nature of the transaction between Graves and wife and McLaurin, or that it was not truly represented by the papers executed. Defendant in error Kinney acquired the note after maturity from Richardson, and brought this suit against McLaurin, Graves and wife, and Richardson to recover the amount due upon it, and to foreclose the lien upon the property. Mrs Graves set up the facts of the transaction as stated to defeat the lien asserted. Kinney and Richardson pleaded that the latter acquired the note and lien under the deed to McLaurin before maturity of the note, for a valuable consideration, without notice. The plaintiff recovered under this plea in the district court, and the judgment was affirmed by the court of civil appeals.

The transaction, being in the form of a sale, but in reality an attempt on the part of Graves to incumber the homestead to secure the payment of money, was a "pretended sale." It involved a "condition of defeasance"; for, under the arrangement between Graves and McLaurin, payment of the note would have...