Long v. Fields

• Decision Date: 17 January 1903
• Parties: LONG v. FIELDS et al.
• Court: Texas Court of Appeals

71 S.W. 774

LONG v. FIELDS et al.

Court of Civil Appeals of Texas.

January 17, 1903.

Appeal from district court, Childress county; G. A. Brown, Judge.

Action by A. W. Long against N. B. Fields and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

Johnson & Aynesworth and Tolbert & Berry, for appellant. R. S. Houssels and Fires & Decker, for appellees.

CONNER, C. J.

This is an action of trespass to try title, brought by appellant against N. B. Fields, to recover sections 459 and 460, certificate 1/230, in block H of the Waco & Northwestern Railroad Company's surveys in Childress county. N. G. Lane and wife, Ophelia B. Lane, made themselves parties defendant, asserting ownership to the land, and that defendant Fields was their tenant. The Lanes pleaded that certain deeds made by N. G. Lane to Zeb F. Crider, through whom appellant claims, were only mortgages, in fact, though deeds in form, and that the mortgages had been satisfied, and that their homestead was on section 459, and was there at the time of the execution of the deeds to Crider by Lane. Appellee N. G. Lane is common source of title, and appellant claims from him through two sources: (1) On the 3d day of October, 1899, N. G. Lane executed deeds absolute in form to Zeb F. Crider for the lands sued for, which were duly recorded in the deed records of Childress county. On the 23d day of January, 1900, appellant instituted suit against said Crider in the district court of said county for the sum of $2,100, and at the same time had a writ of attachment duly levied upon said land as the property of said Crider. This was followed with a judgment for the full amount sued for, with a foreclosure of the attachment lien, and sale by the sheriff, when appellant bought the land for $800, which was credited on his judgment. At the time of the levy of the attachment, appellant had no notice of any defect in the title of said Crider to the land, though he did have such notice prior to the foreclosure sale. (2) On the 29th of January, 1900, Zeb F. Crider conveyed the land to T. F. Timmons for a recited cash consideration of $5,000, executing to him warranty deeds therefor, and appellant acquired the title of Timmons before trial.

Upon the trial, appellant offered the following testimony from the deposition of Zeb F. Crider, to the exclusion of which, as appears from a sufficient bill of execution, error is first assigned, viz.: "T. F. Timmons had no knowledge, as far as I know, that N. G. Lane was claiming or had ever claimed any interest in the land involved in this suit at the time I deeded them to him, nor that Lane's deed to me was only a mortgage, and that, to my knowledge, said Timmons had no notice of the said land being attached by Long." We are of opinion that the court was in error in excluding this testimony. Timmons testified, in effect, that, if the deeds from the Lanes to Crider were mortgages in fact, he had no knowledge thereof, and that he paid $5,000 cash for the land, without notice of any defect in Crider's apparent title. The particular circumstances under which he purchased, as testified to by him on cross-examination, however, and other evidence not necessary to here recite, tended to rebut this theory, and the court therefore properly submitted the issue to the jury. The jury in fact found in appellee's favor on this issue, and the evidence being conflicting, as stated, made the above evidence of Crider material. Crider was a principal actor in the transfer to Timmons. The tendency of mere unexplained silence on his part might have been to appellant's prejudice, and we think he should have been permitted, as he sought to do, to exclude the possible inference that Crider was in possession of knowledge adverse to appellant on the important issue of notice; for if in fact Timmons, as alleged, was a purchaser for value, and without notice of the avowed equities of the Lanes, he took the legal title free from such equities, and appellant of course, irrespective of whether he had such notice, by the transfer to him acquired all the rights held by Timmons. Sayles' Ann. Civ. St. art. 4640; White v. McGregor (Tex. Sup.) 50 S. W. 564, 71 Am. St. Rep. 875; Hill v. Moore, 62 Tex. 610. It is insisted, however, that the evidence was but a conclusion of the witness, and hence that the court properly sustained that objection to it offered below. That the question of notice vel non frequently involves the conclusion to be declared by the jury, and not by the witness, may be conceded; but it is apparent from an analysis of the excluded testimony that the asserted conclusion of...