Harrison v. Hogue

• Decision Date: 25 March 1911
• Citation: 136 S.W. 118
• Parties: HARRISON et al. v. HOGUE et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

Page 118

136 S.W. 118

HARRISON et al. v. HOGUE et al.^†

Court of Civil Appeals of Texas.

March 25, 1911.

Rehearing Denied April 8, 1911.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Action by Ella Hogue and others against Edward T. Harrison, as receiver, etc., and others. Decree for complainants, and defendants appeal. Affirmed.

J. L. Goggans and D. A. Eldridge, for appellants. T. F. Lewis, for appellees.

BOOKHOUT, J.

Mrs. Ella Hogue and husband, W. J. Hogue, on July 19, 1909, brought suit in the district court of Dallas county against the Union Live Stock Insurance Company and Edward T. Harrison, receiver of said company, to cancel a deed made by them to such receiver conveying their homestead in the city of Dallas, claiming that, while in form a general warranty deed, yet in fact it was a mortgage, and so understood by the grantors and grantee. Defendants pleaded a general denial. The cause was tried by a jury and resulted in a verdict for the plaintiffs, whereupon the court entered judgment in favor of plaintiffs, from which judgment this appeal is prosecuted.

Error is assigned, in substance, that the evidence is insufficient to support the verdict, and for this reason the court erred in overruling appellants' motion for new trial. The proposition presented is: One who alleges that a general warranty deed is a mortgage must prove it by clear, unequivocal and satisfactory evidence. The fact that the grantor understood the transaction to be a mortgage is not alone sufficient to prove it so. It may be conceded that this proposition announces a correct proposition of law. It was so held in the case of Brewster v. Davis, 56 Tex. 478.

The plaintiffs introduced in evidence the original deed, which was in the usual form of a general warranty deed, signed by the plaintiffs, dated December 15, 1908, conveying to Edward T. Harrison, as receiver of the Union Live Stock Insurance Company, the property in controversy, for the following consideration, viz.: "Ten dollars to us in hand paid by Edward T. Harrison, receiver of the Union Live Stock Insurance Company, and the further consideration of five thousand dollars ($5,000) heretofore received by the said W. J. Hogue from the Union Live Stock Insurance Company." This deed was acknowledged by the grantors before a notary public of Dallas county, Tex., and his certificate of such acknowledgment was in statutory form. The defendant introduced in evidence the following instrument:

"The State of Texas, County of Dallas. Know all men by these presents that whereas, W. J. Hogue and wife, Ella Hogue, have this day sold and conveyed by warranty deed to Edward T. Harrison, receiver of the Union Live Stock Insurance Company, the house and lot hereinafter described; and, whereas, the said W. J. Hogue and wife, Ella Hogue, are unable to surrender possession of said premises at this time to the said Edward T. Harrison, receiver, as aforesaid, on account of the physical condition of the said Ella Hogue; and, whereas, the said Edward T. Harrison, receiver, has agreed to rent said premises to the said W. J. Hogue and permit him to remain in possession thereof until the first day of April, 1909, conditioned that the said W. J. Hogue and wife, Ella Hogue, acknowledge the validity of the aforesaid sale in every respect, and further acknowledge that their possession of said premises from this date shall be that of tenants of the said Edward T. Harrison: Now therefore, we, the said W. J. Hogue and wife, Ella Hogue, on our oath do say that the sale of said premises by us to the said Edward T. Harrison, receiver of the Union Live Stock Insurance Company, was in the utmost good faith and in all respects bona fide and for a valuable consideration received by us; that the deed above referred to was executed voluntarily, freely and willingly, and without fear, compulsion, persuasion, duress, or fraud in any manner whatever. Witness our hands this 15th day of December, 1908. [Signed] W. J. Hogue. [Signed] Ella Hogue.

"Sworn to and subscribed before me, this 15th day of December, 1908. [Signed] Wm. M. Jones, Notary Public in and for Dallas County, Texas.

"In consideration of the premises and of the promises of W. J. Hogue and wife, Ella Hogue, now made, I, Edward T. Harrison, receiver of the Union Live Stock Insurance Company, do by these presents lease and demise unto the said W. J. Hogue, the following described property, situated in the city and county of Dallas, Texas, and being known as lot No. seven (7) and the house located thereon in block No. 549 — `C' of Murphy & Bolanz' official map of the city of Dallas, Texas, and more particularly described in a deed of even date herewith, given by the said W. J. Hogue and wife to the said Edward T. Harrison, receiver, to which reference is here made, from this date until the first day of April, 1909, to be occupied as a dwelling and not otherwise. Witness my hand this 15th day of December, 1908. [Signed] Edward T. Harrison, Receiver Union Live Stock Insurance Company.

"We, W. J. Hogue and wife, Ella Hogue, in consideration of the premises, do by these presents agree to...