Langham v. Gray
Decision Date | 01 July 1920 |
Docket Number | (No. 597.) |
Citation | 227 S.W. 741 |
Parties | LANGHAM et al. v. GRAY. |
Court | Texas Court of Appeals |
Suit by H. L. Gray against Thomas H. Langham, receiver, and others. Judgment for plaintiff, and defendants bring error. Reversed and remanded for new trial.
E. L. Nall, C. W. Howth, and Oliver J. Todd, all of Beaumont, for plaintiffs in error.
E. E. Easterling, H. M. Whitaker, and Geo. C. O'Brien, all of Beaumont, for defendant in error.
On the 23d day of June, 1911, Sam Lee Gray executed to his brother, H. L. Gray, an instrument in the form of a general warranty deed, purporting to convey a certain piece of property. On the trial of this case below, H. L. Gray was the plaintiff, and it was the contention of the defendants that this instrument was a mortgage. The evidence was abundantly sufficient to raise this issue. On the 26th day of June, 1911, three days later, Sam Lee Gray, by warranty deed, conveyed the same property to McFaddin-Wiess-Kyle Land Company. Under this deed they went into immediate possession, and were not disturbed in this possession by H. L. Gray until this suit was instituted against them and their receiver, Thos. H. Langham, on the 27th day of September, 1917, in the usual form of trespass to try title, more than six years after the execution by Sam Lee Gray of the instrument under which plaintiff claimed. The case was submitted to the jury on special issues, and in answer to the same they found that plaintiff was holding under a deed, and on this finding judgment was rendered for the plaintiff. The defendants have duly perfected their appeal, and have presented this case to us on the following assignments:
(1) Error in excluding testimony.
(2) The court erred in not instructing a verdict for them on their plea of five years' limitation.
(3) The finding by the jury that the transaction between Sam Lee Gray and H. L. Gray was a deed rather than a mortgage was against the great weight and preponderance of the evidence.
Other questions are raised in the brief, but the disposition we are making of the appeal makes many of them immaterial, and the other assignments only present these issues from different angles.
We will discuss these issues in the order given.
1. Mr. Oliver J. Todd was of counsel for the defendants in the trial of this case in the court below and presented this case for them on submission in this court. While testifying in his behalf on his original examinaton, in answer to questions propounded to him by his counsel, H. L. Gray said:
It was not denied by Mr. Todd that Mr. Gray did talk with him about this case; that Mr. Gray brought him an abstract of title to the property; that this abstract remained in his office a long time; that finally Mr. Gray called for the abstract, and gave it to another lawyer; and that at once suit was filed in the name of the plaintiff for the land. While he was a witness on the stand, the following questions were asked Mr. Todd, which he was not permitted to answer, on the ground that the answer called for a disclosure of privileged communications:
"State whether or not the plaintiff ever sought to employ you or consult with you as to whether or not you would accept employment to bring suit in his behalf or in behalf of Sam Lee Gray for the land in controversy."
If permitted, he "would have testified that plaintiff told him he had no cause of action, but his brother, Sam Lee Gray, had one."
"State whether or not you were ever employed by plaintiff at any time to bring suit for the land in controversy."
If permitted, he "would have testified that plaintiff sought to employ him to sue for said land in behalf of his brother, who still owned the land, but McFaddin had procured a deed from him while he was drunk and said deed should be canceled."
"State whether or not you ever agreed with the plaintiff to represent him in filing a suit for him for the land in controversy."
If permitted, he "would have testified that plaintiff at the time did not claim said land, but claimed same still belonged to his brother, Sam Lee Gray, and McFaddin had procured a deed from him while he was drunk, and wanted it canceled by suit."
"State whether or not the plaintiff, H. L. Gray, ever had any conversation with you with reference to employing you to represent Sam Lee Gray in an effort to recover the land."
On this question the bill of exceptions made this statement:
With reference to this question, the bill of exception makes this statement:
"Which evidence was offered for the purpose of showing that the plaintiff sought to bring a suit on behalf of Sam Lee Gray to set aside a deed obtained from Sam Lee Gray while intoxicated, and same was offered because plaintiff had waived the privilege claimed by reason of the testimony of the nature inquired about, and because it was competent to contradict plaintiff as to said matter on which he had already testified, and to show at that time while Sam Lee Gray was still alive, plaintiff recognized his ownership of said land, and admitted his deed was only a mortgage, which evidence was objected to by defendants," etc.
Mr. Todd's answers, as given above, are taken from the bills of exception. The trial court examined Mr. Todd as follows:
Reversible error was committed in excluding this testimony. If the conversation between Mr. Gray and Mr. Todd was privileged, this privilege was clearly waived by plaintiff when, in his original testimony, he went into the details of his transactions with Mr. Todd and offered these transactions as an explanation for his laches in filing this suit. His brother lived until 1915. During this time the defendants were in undisturbed possession of this property, cultivating, using, and enjoying the same, within the actual knowledge of plaintiff. Though plaintiff, during all these years from the date of his deed from his brother until this suit was filed in 1917, lived but a short distance from this land, he did not in any way disturb the possession of defendants. To tell the jury that he had been diligent all these years; that he had employed counsel,...
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