Hicks v. Hicks

• Decision Date: 28 February 1894
• Citation: 26 S.W. 227
• Parties: HICKS et ux. v. HICKS et al.
• Court: Texas Court of Appeals

26 S.W. 227

HICKS et ux. v. HICKS et al.

Court of Civil Appeals of Texas.

February 28, 1894.

Appeal from district court, Morris county; John L. Sheppard, Judge.

Action by E. A. Hicks and wife against J. H. Hicks and others for title and possession of a house and lot. From a judgment for defendants, plaintiffs appeal. Affirmed.

J. F. Jones, for appellants. J. M. Moore, for appellees.

LIGHTFOOT, C. J.

On August 17, 1891, the appellants (plaintiffs below) filed in the district court of Morris county, Tex., against appellees (defendants below), a suit for title to and possession of a house and lot in the town of Belden, Morris county, Tex., appellants claiming said house and lot as their homestead, and that the deed from E. A. Hicks to W. J. Galloway was only a mortgage. On April 8, 1892, appellees filed their first amended original answer, in which they plead not guilty, the three-years statute of limitation, and specially deny that the instrument of writing from the plaintiff E. A. Hicks to W. J. Galloway, appellees' ancestor's vendor, was intended by them as a mortgage, and say that the said plaintiff E. A. Hicks represented to the appellees' ancestor that he had sold to said W. J. Galloway the said house and lot, but that said house and lot was of much greater value than the said Galloway paid for it, and that the plaintiff E. A. Hicks could induce the said Galloway to take his money back for the said house and lot, and, if appellees' ancestor — Ephram Hicks — would advance the amount which Galloway paid for the house and lot, that appellees' ancestor could have the house and lot, and that plaintiff E. A. Hicks would have the said Galloway to make a deed to appellees' ancestor; wherefore plaintiffs are estopped from claiming any right to said property. Appellees, in the event the deed should be held to be only a mortgage, ask for personal judgment against the plaintiff E. A. Hicks for the amount paid Galloway for him, and for a foreclosure on the house and lot. On April 8, 1892, this cause was submitted to the court without a jury, and the court rendered judgment that the plaintiffs take nothing by their suit, and pay all costs in this cause, from which judgment plaintiffs appealed.

The facts were substantially as follows: (1) E. A. Hicks, on September 24, 1885, was a single man, and owned the property in controversy. He borrowed from W. J. Galloway $300, and executed to him a warranty deed for the property as security, taking from him an agreement showing the loan, and that he would reconvey upon payment of the debt. This deed was not acknowledged, but its execution was admitted. This was a mortgage. (2) On January 1, 1886, E. A. Hicks paid back to Galloway $100 of the amount borrowed, and on January 13, 1886, married his coplaintiff, J. E. Hicks, and they moved upon the property, and lived upon it from that time until July 1, 1887, when they moved to Winsboro, and delivered the possession of the property to Ephram Hicks. (There is no evidence in the record that E. A. Hicks and family claimed the place as a homestead, or whether they owned or claimed any other homestead.) (3) On June 20, 1886, E. A. Hicks went to W. J. Galloway, and wanted more money. Galloway wanted Hicks to acknowledge the deed, which had never been done. It was agreed that, if Galloway would pay Hicks $300 more money, he would acknowledge the deed. This was done, and the deed was acknowledged and delivered, and the defeasance taken up by Galloway. The amount, in all, paid to Hicks by Galloway, was $600. Hicks had paid $100 January 13, 1886, leaving, net, $500, which was about the value of the property. From the time of the acknowledgment and delivery of the deed the property was considered by Galloway as his own, and Hicks paid him rent therefor from that time until he left the place. (4) On June 20, 1887, E. A. Hicks made a trade with Ephram Hicks, with Galloway's consent, whereby he sold the land to Ephram Hicks, and caused the deed to be made directly to him from W. J. Galloway, for a consideration of $540, which was paid by Ephram Hicks to W. J. Galloway. At the time of this purchase the deed from E. A. Hicks to W. J. Galloway was on record, and was a warranty deed, and said Ephram Hicks was told by E. A. Hicks that the title was in Galloway. There is no testimony showing that Ephram Hicks had any notice that W. J. Galloway did not have the full legal title to the property. On July 1, 1887, E. A. Hicks delivered to Ephram Hicks full possession of said property under the deed from W. J. Galloway, and said Ephram Hicks then took possession, placed his deed on record, and he and those holding under him (appellees) have ever since held possession thereof under such deeds, claiming the property as their own. Appellees and their ancestor had held such possession openly and notoriously, claiming the said property under the deed from Galloway and Ephram Hicks, for more than three years, when this suit was brought.

Conclusions of Law.

There were no conclusions of fact and law filed by the court below, nor does the record show that any were requested by appellants. In the absence of this, we will examine the record in the light of the errors assigned by appellants, to see if the judgment is correct under any view of the evidence presented.

1. We think the court erred in not permitting plaintiff E. A. Hicks to testify, in his redirect examination, why he instructed W. J. Galloway to make Ephram Hicks a deed to the house and lot in controversy. The defendant, on his cross-examination, had asked the witness if he did instruct Galloway to make a deed to Ephram Hicks for the property, to which he answered in the affirmative. E. A. Hicks was not competent, under the statute, to prove any transaction with, or statement by, Ephram Hicks, who was dead, unless called to testify thereto by the opposite party. They had called upon him to testify, and, having drawn out the fact that he did request Galloway to make a deed to Ephram Hicks, it was not proper then to exclude his reasons for so doing. Jackson v. Munford's Ex'r, 74 Tex. 104, 11 S. W. 1061.

2. We think the court erred in admitting the testimony of Robert Hampton of conversations and transactions between appellant E. A. Hicks and Ephram Hicks, who is now dead. Hampton is the husband of one of the heirs of Ephram Hicks, and a party to this suit, and comes within...