Kutch v. Holly

• Decision Date: 06 May 1890
• Citation: 14 S.W. 32
• Parties: KUTCH <I>et ux.</I> v. HOLLY.
• Court: Texas Supreme Court

14 S.W. 32

KUTCH et ux. v. HOLLY.

Supreme Court of Texas.

May 6, 1890.

Commissioners' decision. Error from district court, Wilbarger county.

N. P. Plemons, F. C. Beckett, and F. P. McGhee, for plaintiffs in error. O. P. Orr and C. R. Whaley, for defendant in error.

HOBBY, J.

This suit was brought by W. Holly, the defendant in error, against the plaintiffs in error, defendants in the court below, to recover eight promissory notes described in the petition. The notes were executed 22d March, 1884, by A. M. and H. B. Kutch. Seven were each for $100, and one for $168, aggregating $868. To secure the payments of the notes, it was alleged that defendants executed a mortgage conveying a tract of land described as situated in Vernon, Wilbarger county, known as "Lot No. 16, Block 12," of said town of Vernon. Judgment for the amount of the notes, and a foreclosure of the mortgage, was prayed for. Defendants answered, alleging that, at the time of the execution of the notes and mortgage, defendant A. M. Kutch was and still is the wife of H. B. Kutch; that the property mortgaged was their homestead, and was the separate property of A. M. Kutch; that the mortgage was executed as a security for the indebtedness of said H. B. Kutch, and was obtained by undue influence over her of her husband; that the plaintiff, Holly, induced her to sign it by promises that the mortgage would under no circumstances be foreclosed,—that its execution was a mere form; that she was unused to business, and signed the same, not understanding her rights, etc., all of which was known to plaintiff; that it was not given as a security for any debt contracted for the benefit of her separate property, nor for necessaries for herself and children. She charges, also, that an attorney at law in the employ of Holly induced her to execute the same, "contriving to make her separate estate liable for the claim of said Holly against said H. B. Kutch;" that the notary before whom the acknowledgment of said mortgage was made was disqualified, and incompetent to take the same.

There was proof to the effect that, in the spring of 1884, plaintiff below, Holly, lived at Wichita Falls, and defendants at Kirkland, on Groesbeck creek, in Hardeman county The former had a stock of goods on Red river, in Childress county. Defendant H. B. Kutch went to see him, and the terms of sale were agreed on. Among them, was that plaintiff was to be secured by mortgage. Kutch carried the goods to his place in Hardeman county, where, owing to the loss of the invoices, the value of the goods could not be agreed on between him and plaintiff's agent. Plaintiff went up, an inventory was taken, and the goods were valued at $968. Plaintiff wanted a mortgage on the property defendants then occupied, but it was their homestead, — so stated the defendant, —and he would not give it. Plaintiff then agreed to take the mortgage on the lot in Vernon, Wilbarger county. Mrs. Kutch was not present then. Nine notes were executed. In a short time, one was paid, leaving the eight sued on. They were each signed by Mrs. Kutch and her husband. It was then agreed plaintiff was to have a mortgage on the Vernon property, which Mrs. Kutch did not then claim as her homestead. It was agreed that the notes were to be left with J. P. Orr, an attorney who was to draw up the mortgage; and Mrs. Kutch and her husband were to come down, and sign and acknowledge it. It appears that, when plaintiff ascertained that the Vernon property was in the name of Mrs. Kutch, it was then agreed that the notes first executed by H. B. Kutch should be destroyed, and new notes were drawn for the same amounts, which she signed first; the object being to better secure them by the mortgage, in which she was also named at the first as the grantor. Plaintiff was not present when the new notes and mortgage were executed. He says Mrs. Kutch at no time refused to sign the notes, or give the mortgage on the Vernon property. He preferred a mortgage on the property in Hardeman county; but, being told by Kutch that it was defendants' homestead, and could not be mortgaged, finally consented to take it on the Vernon property.

H. B. Kutch testified: In the spring of 1883, defendants resided on the Vernon property, and so resided until November, 1883, when they went to the Hardeman county place, bought improvements from Williams & Kirkland, who had lived there, kept a stage stand, and sold goods there. Never intended to abandon the Vernon property "unless I could get a good foothold somewhere else." The attorney who drew the notes and mortgage stated that plaintiff handed him the first notes signed by defendants, and directed him to draw a mortgage, and the defendants would come to Vernon and sign the same. He did as directed. When defendants came, H. B. Kutch requested that new notes, and redraft of the mortgage, be made, as the Vernon property was in his wife's name. That it had been agreed that her name should come first, so as to better secure plaintiff. Witness did as requested, and the next day the defendants came to the office of the notary, W. L. Gordon, who at their request examined the papers, and, after some suggestion as to corrections, told defendants it was correct. Defendants signed, Mrs. Kutch being first, and acknowledged the mortgage. Neither defendant at that time claimed the Vernon property as a homestead, nor did Mrs. Kutch express any unwillingness to sign the papers. The notary taking the acknowledgment of the mortgage was attorney for H. B. Kutch in other matters. The mortgaged property was of record in Mrs. Kutch's name, and had been since the spring of 1883. Mrs. Kutch testified that she moved in the house in Vernon in the spring of 1883. Went down to Groesbeck to keep a stage stand. It was her separate property. She knew nothing of the arrangements between plaintiff, Holly, and her husband, about giving a mortgage on the property, until the latter brought the goods down to the Groesbeck place, and plaintiff told her that he wanted her to sign a mortgage on the property, which she did not like to do. Plaintiff said that he would not push this matter, and it was a mere formality. She then agreed to sign it, and did so, and acknowledged it some days subsequently. "Did not hear plaintiff say that he wanted a mortgage on the Groesbeck property, where we were then living. Did not know whether we would return to the Vernon property. We moved from the Groesbeck place to Floyd county. Lived there a while." Moved again to Hale county, where they were then living in a tent. "Sold the Groesbeck property to Mollie Stephens. The deed from Williams & Kirkland of the Groesbeck property was to me. We turned it over to her. Could not have brought that deed with me. Got nothing for the benefit of my separate property out of the goods bought of plaintiff. Own no land now except that in suit. We move about from place to place, wherever we can get the best grass and water." Plaintiff, in rebuttal, denied having made any statements to Mrs. Kutch to the effect that he would not foreclose, etc., and that he desired a mortgage on the Groesbeck land; but the defendant H. B. Kutch stated that it was their then homestead, and he could not sign one. On this statement, he consented to the mortgage on the Vernon property. That he never had heard any assertion, prior to this defense, of the homestead claim to that property.

The notes sued on were in evidence, as was also the mortgage, acknowledged in due form; also a certified copy of a deed to Mrs. Kutch, from Williams & Kirkland, conveying the Groesbeck property. Defendants objected to the introduction of this deed because no affidavit had been made that plaintiff could not produce the original, and because it was not filed until a few minutes prior to the trial, and three days had not elapsed after such filing and notice, and because no notice of any kind of such filing was given. These objections were overruled. There was a trial by ...