Johns v. Hilburn, 4350.

• Decision Date: 11 October 1933
• Docket Number: No. 4350.,4350.
• Citation: 64 S.W.2d 1009
• Parties: JOHNS et al. v. HILBURN et al.
• Court: Texas Court of Appeals

Page 1009

64 S.W.2d 1009

JOHNS et al. v. HILBURN et al.

No. 4350.

Court of Civil Appeals of Texas. Texarkana.

October 11, 1933.

Rehearing Denied October 26, 1933.

Appeal from District Court, Gregg County; R. J. Williams, Judge.

Suit by Maceo Johns and others against Susie Hilburn and others. From an adverse judgment, plaintiffs appeal.

Affirmed in part, and reversed and rendered in part.

Baker, Botts, Andrews & Wharton, S. H. German and Y. D. Mathes, all of Houston, for appellants Maceo Johns, E. G. Thompson, and Y. D. Mathes.

Vinson, Elkins, Sweeton & Weems and George E. B. Peddy, all of Houston, and Margaret Clarke, of Dallas, for appellants Viola Wells, Sidney Wells, and Byrd-Frost, Inc.

E. G. Wilson, John V. Beveridge, and Yancey, Spillers & Brown, all of Tulsa, Okl., Ashworth, Crisp & Ashworth, of Kaufman, Jack E. Price and Bramlette & Meredith, all of Longview, Wm. Hodges, of Texarkana, McDonald & Floyd and Mike E. Smith, all of Fort Worth, Wynne & Wynne, Syd Reagan, Riley Strickland, and H. A. Leaverton, all of Longview, Carl E. Wade, of Laredo, Chauncey & Chauncey, of Longview, J. C. Farmer, of Tulsa, Okl., George B. Stone, of Houston, House, Wilson & House, of Dallas, J. F. Park, of Kilgore, and I. C. Underwood, of Marshall, for appellees.

JOHNSON, Chief Justice.

Appellants, Maceo Johns and his sister, Viola Wells, joined by her husband, Sidney Wells, and parties claiming interests under them, as plaintiffs, filed this suit in trespass to try title in the district court of Gregg county, September 5, 1931, against the heirs of Susie Hilburn, deceased, and parties claiming interests under them, as defendants. Plaintiffs seek to recover an undivided one-half interest in two tracts of land in Gregg county, containing 81 and 200 acres, respectively. John Hilburn owned the land at the time of his death, intestate, December 18, 1918. He was survived by his second wife, Susie Hilburn, and five grandchildren by his first marriage, to wit: Maceo Johns and Viola Wells, children of one of John Hilburn's two daughters, and Christine Jenkins, Jewel Jenkins, and Felix Jenkins, children of John Hilburn's other daughter, constituting his sole heirs. Susie Hilburn had no children. After his death the lands belonging to the estate of John Hilburn were partitioned, in the district court of Gregg county, between his said five grandchildren and surviving wife, Susie Hilburn. The 281 acres were awarded, undivided, one-half to Maceo Johns and Viola Wells and one-half to the Jenkins children, subject to the life estate and homestead interest adjudged to Susie Hilburn. The one-half interest awarded to the Jenkins children is not involved in this suit. The one-half awarded to Maceo Johns and Viola Wells, being a one-fourth undivided interest each, is the subject-matter of this suit. Susie Hilburn died, intestate, July, 1929. Appellees claim by inheritance from and under Susie Hilburn, and that she acquired title to the interests here involved by deeds of conveyances from Maceo Johns and Viola Wells, dated October 18, 1920, and January 4, 1921, respectively. Appellants allege that these deeds together with certain contemporaneous written agreements entered into by the parties at the time of the execution of the respective deeds constituted mortgages, whereby no title passed, and that a lien only upon the land was created, payment of which they tender and offer to discharge. In response to which appellees contend that the contemporaneous written agreements were in effect no more than option contracts, and did not affect the title conveyed further than to burden it with the right of the vendors to have it reconveyed upon compliance with the terms therein specified, thereby constituting conditional conveyances.

The instruments relating to the transaction between Maceo Johns and Susie Hilburn are:

(1) A written agreement signed and acknowledged by Maceo Johns and Susie Hilburn, dated October 18, 1920, in terms as follows:

"The State of Texas, County of Gregg.

"Agreement this day made by and between Maceo Johns of Gregg County, and Susie Hilburn of Gregg County, witnesseth:

"Whereas, Maceo Johns owns a one-fourth undivided interest in 281 acres of land as the same is described in Minute Book K, page 304 of the Minutes of the District Court of Gregg County, Texas, in case of Susie Hilburn et al. v. T. J. Jenkins et al., and said interest being subject to the life estate of Susie Hilburn, and the said Maceo Johns being desirous of securing a loan upon said property and of having Susie Hilburn to become a surety for him, it is agreed that Maceo Johns and his wife shall deed to Susie Hilburn his interest in the said aforementioned tracts of land for a recited consideration of Eight Hundred Dollars, and that Susie Hilburn will give him two notes in the sum of Four Hundred Dollars each, payable in one and two years, to enable him to procure money thereon. It is therefore agreed that upon the payment of said notes at maturity Susie Hilburn will redeed the land to Maceo Johns and that the transaction is in reality as between Maceo Johns and Susie Hilburn nothing but a mortgage and upon the payment of said notes, in the event that Susie Hilburn has to pay them, Susie Hilburn agrees to redeed the land to Maceo Johns, or to any person whom he may cause to be deeded to, upon his paying said notes.

"Witness our hands in duplicate this the 18th day of October, 1920.

                                         "Maceo Johns
                                         "Susie Hilburn."
                

Acknowledgments were taken on same date before R. F. Osborn, notary public, Gregg county. It was filed for record September 26, 1930, and recorded October 15, 1930, in the deed records of Gregg county.

(2) A general warranty deed in regular form signed and acknowledged by Maceo Johns and his wife October 18, 1920, purporting to convey the interest of Maceo Johns in the land to Susie Hilburn, in consideration of two $400 vendor's lien notes, payable to the order of Maceo Johns in one and two years, bearing 10 per cent. interest, and providing for the usual 10 per cent. attorney's fees, and reserving the vendor's liens, stipulating that upon payment of the notes the deed shall become absolute.

(3) The two vendor's lien notes, signed by Susie Hilburn, as described in the deed.

(4) Assignment by indorsement and written transfer by Maceo Johns of the notes, vendor's lien, and superior title, dated October 19, 1920, to the Guaranty State Bank of Kilgore, Tex.

The transaction between Viola Wells and Susie Hilburn is evidenced by: (1) A general warranty deed in regular form, dated January 4, 1921, executed by Viola Wells and husband, Sidney Wells, conveying Viola Wells' one-fourth interest in the land to Susie Hilburn for a consideration of two $450 vendor's lien notes, payable to the order of Viola Wells, due November 19, 1921-1922, bearing 10 per cent. interest, attorney's fees, reserving the vendor's lien, and providing that upon the payment of the notes the deed shall become absolute; and the deed contained the following special provision: "It is further agreed, as a part of the consideration for this conveyance, that in the event the said Susie Hilburn fails and refuses to pay the notes above mentioned, she will and does hereby waive her right to claim a life estate in said land, or a homestead interest in said land, in and so far as the collection of the above described notes is concerned." (2) The vendor's lien notes above described, signed by Susie Hilburn, and assigned by indorsement by Viola Wells and husband, Sidney Wells, to the Guaranty State Bank of Kilgore, Tex. (3) Written agreement signed and acknowledged by Susie Hilburn, same date of deed and notes, and in terms as follows:

"The State of Texas, County of Gregg.

"Whereas, Viola Wells and husband, Sidney Wells, having conveyed to me a certain tract of land as described in a deed of even date herewith, in consideration of two of my notes in the sum of Four Hundred and Fifty Dollars each and due and payable on November 19th, 1921, and November 19th, 1922, and whereas, as a further consideration for said deed I have agreed to reconvey or resell this land to Viola Wells upon the payment of Nine Hundred Dollars to me, together with such interest as there may be due thereon, dating from this date, at the rate of ten per cent. per annum. This right to resell to them shall enure to their heirs and assigns.

"Witness my hand this, the 4th day of January, A. D. 1921.

                                        "Susie Hilburn."
                

Acknowledgment of Susie Hilburn to this instrument was taken before R. F. Osborn, notary public, Gregg county, January 5, 1921, and filed for record January 13, 1921, and recorded in the deed records of Gregg county.

Shortly after the transactions it appears that Maceo Johns moved to Houston, Tex., and that Viola Wells moved to Marshall, Tex., at which places they have since continued to reside. All the notes were paid by Susie Hilburn to the Guaranty State Bank of Kilgore, Tex., at or about maturity; she was never reimbursed; she continued to reside on the land to the date of her death, and paid all taxes thereon as they became due; since her death the land has been in possession of Susie Hilburn's heirs. It further appears from the evidence that the value of the interest purported to be conveyed by each transaction is approximately the amount of the notes. It does not appear in evidence that Susie Hilburn after paying the notes ever made any demand on Maceo Johns or Viola Wells to be reimbursed, or that they ever offered to pay or make demand for the land; however, the absence of any testimony upon the part of the interested parties in this respect may be accounted for by reason of the death of Susie Hilburn. The witness Bob Walls, not a party to the suit, testified for the defendants that Susie Hilburn claimed the land, and that Maceo Johns and Viola Wells knew as early as 1921 that Susie was claiming the land, and that...