Houston Ice & Brewing Co. v. Harlan

• Decision Date: 13 May 1919
• Docket Number: (No. 408.)
• Parties: HOUSTON ICE & BREWING CO. et al. v. HARLAN et al.
• Court: Texas Court of Appeals

212 S.W. 779

HOUSTON ICE & BREWING CO. et al. v. HARLAN et al.

(No. 408.)

Court of Civil Appeals of Texas. Beaumont.

May 13, 1919.

Appeal from District Court, Jefferson County; W. H. Davidson, Judge.

Suit by Clara J. Harlan against Houston Ice & Brewing Company and others, wherein the plaintiff's husband was made a party plaintiff by defendants. Judgment for plaintiffs, and defendants appeal. Reversed, and remanded for a new trial.

Barry & Burges, and Orgain, Butler, Bolinger & Carroll, all of Beaumont, for appellants.

Geo. C. O'Brien, W. R. Blain, and R. L. Durham, all of Beaumont, for appellees.

WALKER, J.

The appellee Mrs. Harlan filed this suit in the court below against the appellants to set aside an instrument in the form of a general warranty deed, executed by her and her husband to Houston Ice & Brewing Company, of date 12th day of September, 1914. Her husband was not joined in the petition, she alleging that he refused to join. However, he was made a party plaintiff by the defendants. The plaintiff alleged in her petition and in her supplemental petition that the instrument was a mortgage given by her and her husband to secure an indebtedness due by her husband to the Houston Ice & Brewing Company in the sum of about $2,000, and, if she was mistaken in this allegation, then she further alleged that she executed the instrument under duress, the Houston Ice & Brewing Company threatening to put her husband in the penitentiary for embezzling funds unless she joined him in the execution of this instrument.

The defendants answered denying the allegations of the plaintiff, pleading specially that the instrument was a general warranty deed given by the plaintiff and her husband in payment of $2,578.65 on his shortage with them, leaving a balance due of $96.42, and, if the instrument was executed under duress, further pleading estoppel against plaintiff, alleging that she had rented the property from them at $20 per month for two months.

The case was submitted to the jury on special issues, and in answering the same the jury found that the instrument was a mortgage, and they further found that it was executed by Mrs. Harlan under duress. On these findings the court entered judgment for plaintiff for the title and possession of the land, canceling the deed of date the 12th day of September, 1914.

By proper assignments appellants complain because the court did not instruct a verdict for them on the issue of mortgage, and they also complain of the submission of this issue to the jury, and of the finding of the jury on this issue.

Reviewing the facts in this case, we find that Mrs. Harlan testified that her husband, P. E. Harlan, told her that he was short with the Houston Ice & Brewing Company, and that they had required him to settle with them, and had threatened to turn him over to the bonding company unless he did so; that he had no property to use in this settlement except their home, and that it was necessary for them to deed this home to the Houston Ice & Brewing Company, as security for this shortage; that if they did this the company would give them a chance to redeem it, and unless they did so he would be turned over to the bonding company and be prosecuted, and would have to go to the penitentiary; that he had just had a talk with Mr. Autry at the Crosby Hotel, and Mr. Autry had told him that he could not hold the matter open any longer; that she thought about the matter several days, and she and her husband had the instrument prepared, and they signed and acknowledged it; that she and her husband went over to Houston to see Mr. Autry, and took the instrument with them; that she wanted to be convinced that her husband was short with the company before she delivered the instrument; that she told Mr. Autry all that her husband had told her, and asked him if her husband was really short; that Mr. Autry told her that he was; that she further asked him if he would be turned over to the bonding company and prosecuted and put in the penitentiary if she did not sign the instrument, and that she did not remember what answer Mr. Autry made her; that thereupon she and her husband delivered the instrument to Mr. Autry; that Mr. Autry agreed with her that the property could be redeemed, and, if he could sell the property for more than her husband's shortage, he would pay the balance to them, and that he was holding the instrument as security for Mr. Harlan's indebtedness. She further testified that either on that trip, or on a subsequent trip, she rented the property from Mr. Autry and paid two months' rent; that she had claimed the property as her home all the time, and had been living on the property since the execution of the deed, and that the defendants had never been in possession of any part of it; that she wrote the following letter:

"Mr. R. L. Autry, Sr., Houston Ice & Brewing Co.:

"As I promised to send $20 for rent, cottage 1408 Liberty avenue, Beaumont, will find inclosed amount of same, but you did not state what month to begin with. Will ask you to mail the return receipt to me 1408 Liberty avenue and oblige."

That she also wrote this letter:

                                      "January 2, 1915
                

"Mr. R. L. Autry, Sr.:

"Inclosed find $20 for rent December, 1914, on cottage 1408 Liberty avenue, Beaumont, Texas. I did not get it off yesterday on account of the post office being closed here. I trust that it is not troubling any one, and will try and not let it be repeated. There was a party said that they would like to get the property on Liberty. I did not mention this place until I notified you, and don't know if this place was for sale. Again I apologize for not getting this a day sooner than a day late."

The following letter was introduced by defendant:

                            "Houston, Texas, Dec. 5, 1917
                

"Mr. P. E. Harlan, Beaumont, Texas,

"Dear Sir: We inclose a statement of your account. You will observe that the balance, after crediting you with the amount which we agreed to allow you for the deed, is $2,675.07, and, after allowing credit for the deed of $2,578.65, the amount agreed upon, there is a balance of $96.42, which is due.

"Mrs. Harlan sent us about the first of the month a postoffice money order for $20.00, which covered the rent of the property described in the deed, 1408 Liberty avenue, Beaumont, for the month of November, and we wrote her December 3d, in acknowledging receipt of the rent, that the rent for December could be paid on the first of January. We are to-day paying the remaining unpaid notes of the series of 61 notes given by you to John R. Callahan in part payment of the property, and we wish to have a statement from you and Mrs. Harlan confirming the terms on which we are renting the property.

"These are that you will rent the property from month to month at $20.00 a month, the renting to be terminable by either us or yourselves at the end of any month, and you to surrender possession of the property at that time. The next installment of rent, which is for the month of December, as stated, will be due on the first of January, 1915.

"We send you a carbon copy of this letter, and request that you sign and acknowledge the indorsement which is written on it, and have Mrs. Harlan do the same, and then return it to us.

                  "Yours very truly."
                  "We, P. E. Harlan and Mrs. Clara J. Harlan
                hereby acknowledge that the amount credited
                above, $2,578.65, is the true and correct
                amount which the Houston Ice & Brewing Company
                agreed to allow P. E. Harlan on his indebtedness
                to that company for the deed dated
                September 12, 1914, to the property which was
                formerly our home, being 1408 Liberty avenue
                Beaumont, and we acknowledge that the balance
                owing by Mr. Harlan to the Houston Ice
                & Brewing Company, after allowing this credit
                of $2,578.65, is $96.42, and that this latter
                amount is justly due. We also acknowledge
                that the rent has been paid for the month of
                November only, and we agree to pay the Houston
                Ice & Brewing Association $20.00 per
                month rent for said property as long as we occupy
                the same, the rent to be paid on or before
                the first day of each month for the month preceding
                and agree to vacate the same at the
                end of any month when notified or requested by
                the Houston Ice & Brewing Association so
                to do.            P. E. Harlan,
                                 "Mrs. Clara J. Harlan."
                

This indorsement was duly acknowledged by plaintiff and her husband in the form and manner required by law to bind a married woman in the conveyance of her homestead.

P. E. Harlan, the husband of plaintiff below, testified on direct examination that the instrument was executed as security for his shortage with the Houston Ice & Brewing Company, but on cross-examination he testified:

"When I used the word "security' I meant it was to wipe out and extinguish the debt and to get rid of it. It was to get rid of the debt. When I took the deed over to Mr. Autry I supposed that would settle the whole thing and settle the account."

When Mr. Autry testified that it was a bona fide sale; that Mr. Harlan was short in his account, and he took this property in settlement of $2,578.65 of the debt, leaving a balance of $96.42; that the instrument was in no way intended as a security for the shortage or for any part of it; that Mrs. Harlan never saw him but once, and that she did not say to him, nor did he say to her, that the property was taken as security for the debt. From her manner of testifying, we further find that Mrs. Harlan was a very intelligent woman, and, so far as shown by the record, she was in good health during the time covered by this transaction.

While Mrs. Harlan testified that she executed this instrument as a mortgage to secure the shortage of her husband, not only her testimony as a whole, but all the testimony in this record, convinces us that all the parties, at the time of the execution of this instrument, intended the same as an absolute conveyance.

To show that a deed, absolute on its face, is...