Gwynn v. Bose

• Citation: 63 Tex. 631
• Decision Date: 13 February 1885
• Docket Number: Case No. 5215.
• Court: Supreme Court of Texas
• Parties: FIELDING & GWYNN v. AMOS DU BOSE ET AL.

63 Tex. 631

FIELDING & GWYNN

v.AMOS DU BOSE ET AL.

Case No. 5215.

Supreme Court of Texas.

Feb. 13, 1885.

APPEAL from McLennan. Tried below before the Hon. B. W. Rimes.

On the 30th day of October, 1882, Fielding & Gwynn, of New York city, filed their petition against Amos Du Bose, E. Dickey and C. H. Higginson, for a balance due on a note for the sum of $2,116.25, executed by the said Amos Du Bose to one I. C. Du Bose on the 23d day of January, 1878, and due on its face one day after date; which note had been indorsed to plaintiffs by said I. C. Du Bose on June 3, 1881; and also to foreclose a deed of trust or mortgage upon certain premises in Waco, then in the possession of Dickey and Higginson, which mortgage was executed by Amos Du Bose to secure the note, on the 14th day of May, 1878, and recorded in the records of McLennan county on the 15th day of May, 1878. By the terms of that mortgage the note was extended for six months from the date of the mortgage. Amos Du Bose made default. The defendants Dickey and Higginson answered, claiming title to the premises in controversy, free of incumbrance, by reason of acts and declarations on the part of I. C. Du Bose, at and about the time of the purchase of the premises in controversy from Amos Du Bose, by Greaves, Osborne and Cross, in August, 1878, said parties being the remote vendors of the defendants Dickey and Higginson.

Verdict and judgment in favor of the defendants Dickey and Higginson.

The defendants Dickey and Higginson pleaded that on the 1st day of August, 1878, by written contract, Greaves, Osborne and Cross purchased the mortgaged premises from Amos Du Bose, the mortgagor, for the sum of $5,000, to be paid as follows: $100 in cash, $400 to be paid on September 1, 1878, and notes aggregating $4,500 to be executed and delivered to Amos Du Bose by G., O. and C.; and Amos Du Bose covenanted, upon the payment of the notes, to execute to G., O. and C. full assurance of title in fee-simple, clear of all incumbrances. That I. C. Du Bose was the brother of Amos, and at the time of making said contracts, and before the payments were made, he, I. C. Du Bose, stated to A. E. Osborne, one of the purchasers, who specially inquired of him, that Amos Du Bose could make a good title to said lot, and that there was no incumbrance upon the property to prevent Amos from making a good title; that relying on the statement so made, and after Greaves and Cross were informed thereof, and all of the purchasers believed them to be true, the purchase was made, the $100 was paid at the time, and the $400 was paid afterwards, to I. C. Du Bose, or to Amos Du Bose, with full knowledge on the part of I. C. Du Bose; that afterwards Cross sold out his interest to Cassaday on 24th April, 1879, and the contract was then changed, so that the notes were never executed, but in lieu thereof Greaves, Osborne and Cassaday paid to Amos Du Bose $1,000, and gave their notes for $3,400 in different sums and maturing at different times, and thereupon Amos Du Bose executed to them his warranty deed for the premises, specially warranting against all incumbrances. That I. C. Du Bose, knowing all these facts, advised and counseled with Cassaday in regard to the purchase by him of the Cross interest, prior to that purchase and payments, and knew of the notes being afterwards paid, and never in any way made known to Greaves, Osborne and Cassaday that he had a lien on the premises, and said purchase was made by G., O. and C., and they made said payments, without knowledge of any lien; that afterwards, Greaves and Cassaday sold out to Osborne, and Osborne sold to Streeter, and Streeter to Dickey and Higginson, and that all the purchase money on these several transactions had been paid; that I. C. Du Bose received the greater portion of the $1,000 paid to Amos Du Bose by Greaves, Osborne and Cassaday, with full knowledge as to the source from which it came; that defendants and those under whom they claim had been in possession of the premises since the purchase in 1878, and none of them had any knowledge of any claim by I. C. Du Bose, and every vendor stated to his vendee that the premises were unincumbered, before their respective purchases and payments, and none of them had any knowledge of this lien until this action was brought; that I. C. Du Bose, by his acts and declarations aforesaid, was estopped, as were also plaintiffs, who took said note after maturity.

1. Plaintiffs introduced the note and deed of trust in evidence, with all indorsements on each; and also an acknowledgment in writing from Amos Du Bose of the justness of the debt.

2. Defendants introduced a written contract between Amos Du Bose and James Greaves, A. E. Osborne and Thos. Cross, made August 1, 1878, wherein Amos Du Bose covenanted and agreed to make to the other parties a warranty deed, clear of all incumbrances, etc., to the premises in controversy, upon the full payment of the purchase money by said parties. The consideration of the purchase was $5,000, to be paid as follows: $100 cash; $400 on September 1, 1878; and balance in notes for different amounts, maturing from November 1, 1878, to March 1, 1879. There were also stipulations as to possession, insurance and forfeiture in case of non-payment of the purchase money notes, which are not material.

3. Defendants proved sale by Thos. S. Cross of his interest to W. A. Cassaday; a deed from Amos Du Bose to A. E. Osborne, James Greaves and William A. Cassaday, conveying the premises in controversy, which deed is dated April 24, 1879, and was recorded March 20, 1879; a release from Amos Du Bose for the vendor's lien on the above purchase, dated November 15, 1881, and recorded December 2, 1881; a conveyance by Cassaday and Greaves to Osborne of their interest in the premises, dated May 26, 1880, and recorded March 22, 1881. Conveyances from Osborne to Geo. D. Streeter, and from Streeter to Dickey and Higginson, the defendants, were also in evidence.

Defendants proved by W. A. Cassaday, who testified by deposition, the following facts in substance: That Amos Du Bose and I. C. Du Bose were brothers; witness purchased a one-third interest in the premises in controversy from Cross, date not remembered, and, by arrangement, Amos Du Bose made a deed to Greaves, Osborne and witness; witness does not remember date or consideration of deed, except that one of the payments was $1,000. “I. C. Du Bose knew I was about to purchase the interest of Cross in said premises, and he in person, with Amos Du Bose, approached me about the intended purchase, and advised me that it was a good thing and I ought to purchase. This was a week or ten days before the purchase. I. C. Du Bose was present at all interviews between me and Amos Du Bose during the pendency of the trade. I was going to draw the papers, but I. C. Du Bose and Amos Du Bose both said they would draw a paper and submit it to Greaves, Osborne and myself next morning. This occurred at my office over Waco National Bank. I. C. Du Bose drew the deed and was present when the trade was closed and the cash payment turned over to Amos. The reason I know that I. C. Du Bose was cognizant of all the facts in the trade and the payment of the sums of money to Amos Du Bose by Greaves, Osborne and Cassaday, were that he approached me in favor of making the trade in the first place, and was present at all the interviews between Amos Du Bose and myself, advising Amos Du Bose how to proceed, and because I talked to him often during the trade; and he asked me when said sums were ready to be turned over to Amos, and was always with him when said sums were turned over to Amos. He saw the money actually paid. I. C. Du Bose never mentioned any incumbrance on said land, and the only lien he mentioned was one on two or three gin stands, the notes for which, he claimed, were turned over to him in settlement between Winship and himself. This was the only lien ever mentioned by I. C. Du Bose to me or in my hearing.”

On cross-examination, the witness Cassaday further testified, as follows:

The date of the first conversation between I. C. Du Bose and myself was a week or ten days prior to the sale to Greaves, Osborne and myself by Amos Du Bose; this occurred in front of the Waco National Bank in Waco, Texas. Amos Du Bose, I. C. Du Bose and myself were together, and no others. I cannot give the exact language of the conversation. Amos approached me on my contemplated purchase from Cross, and I. C. Du Bose expressed himself as thinking it a good thing, and advised me to make the...