Gray v. Shelby
| Decision Date | 16 February 1892 |
| Citation | 18 S.W. 809 |
| Parties | GRAY v. SHELBY. |
| Court | Texas Supreme Court |
Trespass to try title brought by Jeremiah Gray against Mrs. Fannie Shelby. Defendant obtained judgment. Plaintiff appeals. Affirmed.
W. W. Blake, for appellant. Seale & Powell, for appellee.
This suit, in trespass to try title, was brought August 5, 1890, in the district court of Jasper county, by the appellant against the appellee, to recover a tract of 130 acres of land. The appellant claimed title by virtue of a deed executed to him December 12, 1888, by appellee and her husband, M. E. Shelby, deceased, who, prior to this conveyance, had owned the land since August 9, 1880. The appellee admitted the execution of the deed by herself and husband, but alleged that the instrument, while in form an absolute conveyance, was, as plaintiff well knew, in intent and purpose, a mortgage and security for the sum of $200 advanced by plaintiff to defendant's husband; that the land involved was, at the date of the instrument and had been for years before, the homestead of defendant and her husband, M. E. Shelby, deceased; that she signed the instrument on information from her husband that it was only a mortgage; that she was never examined privily and apart from her husband, nor was the instrument explained to her; that the certificate of her acknowledgment attached to the deed is false, and her signature to the instrument thus obtained by imposition and fraud, all of which was well known to plaintiff. The court on the trial found the deed to be a mortgage upon the homestead, and a nullity, and so adjudged.
The vital question in this case involves the correctness of the court's conclusion that the conveyance in question is a mortgage. On this subject Mrs. Shelby was permitted by the court to testify, over the objection of appellant, that, when she signed the deed in question, "she did not understand it to be a conveyance of her homestead; that she signed it only for the purpose of securing Mr. Gray for the money he let Mr. Shelby have to enable herself and her husband to go to Orange, and that it was the understanding all the time that it was to be a security to Mr. Gray for the money; that one of her reasons for believing that the deed was a mortgage was in the fact that she was not examined privily and apart from her husband, whereas on all previous occasions, when she had executed deeds, she was so examined." The admission of this testimony is assigned as error. We think the objection should have been sustained. The secret undisclosed intention of Mrs. Shelby should not bind Gray, conflicting, as it did, with the recitals in the certificate, of the falsity of which it is not shown that he had any knowledge. This error will not, however, require a reversal of the judgment, as, without this evidence, there are facts sufficient to sustain the conclusion that the instrument was, in effect, a mortgage.
Eliminating the testimony thus improperly admitted, the facts surrounding the transactions are briefly as follows: The land in controversy was at the date of the deed worth from $800 to $1,000. It was then, and had been for 14 years, the homestead of the defendant and her husband, M. E. Shelby. The execution of the deed came about in this way: The defendant desired to go to the town of Orange, that her children might be sent to school, and that her husband might get work. M. E. Shelby, the husband, accordingly went to see Gray, to whom he offered to sell the property for $1,000. Gray replied that he did not have the money, his funds being out at interest, but that "he had $150 he could let Shelby have, and, if Shelby went to Orange and found he wanted to stay down there, he could come back, and get the other $850." This conversation occurred in the presence of Ed. Shelby, a witness. After the conversation, the three, Gray, Ed. Shelby, and M. E. Shelby, went to Orange, where M. E. Shelby instructed Mr. Rigsby, the county clerk, to come to his house and take the acknowledgments. The next day Gray met Rigsby at an appointed place, handed him the money to be delivered to Shelby, and Rigsby proceeded to Shelby's home, paid the money to Shelby, and brought back the deed to Gray. This deed was a warranty deed such as Gray stated he expected to get. A short time after the execution of the deed Mrs. Shelby and her husband moved to Orange, where he died in November, 1889. In December, after his death, she returned to the place. During her stay at Orange the property was in the possession of a tenant of M. E. Shelby and his wife, and she collected the rents on her return from Orange, and resumed the actual possession of the premises. After M. E. Shelby's death, Gray, the plaintiff, stated to Robert Shelby that he wanted only his money back, with interest. The amount paid to Shelby was $150; the consideration recited in the deed is $200. The court below, sitting as a jury, found that the instrument in question was a mortgage. If there be facts conducing to this conclusion, and justifying it, this court will not disturb the finding. Carter v. Carter, 5 Tex. 101, 102.
The character of the instrument is to be determined by the intent with which the grantors executed and the grantee received it. Davis v. Brewster, 59...
To continue reading
Request your trial
-
Anglin v. Cisco Mortg. Loan Co.
...its hue, no matter what coloring the declarations and apparent agreement of the parties have attempted to give it." In Gray v. Shelby, 83 Tex. 405, 18 S.W. 809, 810, this Court again said that the character of an instrument, such as the deed now under consideration, was to be determined "by......
-
Shaner v. Rathdrum State Bank
...it was enlarged by appellant advancing an additional sum." (Smith v. Hoff, 23 N.D. 37, Ann. Cas. 1914C, 1072, 135 N.W. 772; Gray v. Shelby, 83 Tex. 405, 18 S.W. 809.) embarrassed financial condition of Shaner, his inability to pay interest, taxes and insurance, and the threat of foreclosure......
-
Hume v. Le Compte
...a mortgage and a conditional sale equity will construe the instrument as a mortgage. Walker v. McDonald, 49 Tex. 458; Gray v. Shelby, 83 Tex. 405, 18 S. W. 809; Smith v. Anderson, 8 Tex. Civ. App. 188, 27 S. W. There was a debt, and there was no direct evidence that it was ever paid; but th......
-
Baker v. Elliott
...that it was not the intention of the parties thereto that such instrument should operate as a pretended sale or mortgage. Gray v. Shelby, 83 Tex. 405, 18 S.W. 809; Young v. Blain, Tex.Com.App., 245 S.W. 65; Anglin v. Cisco Mortg. Loan Co., 135 Tex. 188, 141 S.W.2d 935. Appellee testified in......