Miller v. Yturria

• Citation: 7 S.W. 206
• Parties: MILLER v. YTURRIA <I>et al.</I>
• Decision Date: 27 January 1888
• Court: Supreme Court of Texas

7 S.W. 206

MILLER v. YTURRIA et al.

Supreme Court of Texas.

January 27, 1888.

Appeal from district court, Cameron county; J. C. RUSSELL, Judge.

Trespass to try title, by Francisco Yturria and others against Charlotte Miller, personally, and as executrix of her husband. Plaintiffs had a verdict and judgment, and defendant appeals.

Mason & Celaya, for appellant.

GAINES, J.

This suit was brought by appellees to recover of appellant certain lots in the city of Brownsville, upon which are situated a building known as the "Miller Hotel." The lots belonged to the community estate of appellant and of her husband, who died in 1883, and were claimed to be the homestead of the family. Miller and wife had occupied them since 1861. In March, 1880, Miller was indebted to appellees separately as follows: To appelee Kennedy in the sum of $2,341.04, principal, besides interest evidenced by a judgment of the district court of Cameron county, rendered in March, 1870; to Yturria by a judgment in the same court, dated June, 1872, for $4,872.88, and the interest thereon, which judgment decreed a foreclosure of a lien upon the property in controversy; to appellee Werbiski in the sum of $2,725.33, and interest evidenced by judgment of the same court against Henry Miller and appellee Charlotte Miller, which amount was also adjudged to be a lien upon the lots now sued for. The amount of the debt of appellee Sander is not directly shown, but it is presumed that he also had a judgment. On the 9th of March, 1880, Yturria and Werbiski had suits pending to revive their respective judgments. Yturria had leased to Miller the furniture in the hotel, but the lease having terminated he demanded possession of it. On the day last named, as a result of negotiations which had been carried on between the parties for several days, Miller and wife executed a deed to appellees to the property in controversy, for the consideration expressed of $14,228.62, and at the same time appellees executed an agreement to Miller and wife, reciting that the consideration of the deed was the original principal of their debts and the additional sums of $1,500 paid in cash and of $922.62, the value of the furniture, which previously belonged to Yturria. The agreement stipulated that the grantors should have the right to repurchase the property at any time within six years, by paying the consideration expressed in the deed, with the interest thereon and all taxes paid upon the property by the grantees. The agreement expressly stated that it was a conditional sale and not a mortgage. The six years having elapsed, and the purchase money, interest, and taxes not having been paid, and Henry Miller having in the mean time died, appellees brought this suit (which is an action of trespass to try title) for the recovery of the property, and obtained a verdict and judgment in the court below. Appellant's defense was that the transaction was a mortgage merely for the security of the debts, and not a conditional sale, and that the property was her homestead at the time the instruments were executed, and that, therefore, appellees had no claim against it. Upon the trial the court admitted, over the objection of appellant, the original judgments of Yturria, Kennedy, and Werbiski, the record of the subsequent proceedings to revive those of Yturria and Kennedy, and the orders of the court showing a voluntary dismissal of these suits on the 12th day of March, 1880.

The first five assignments of error are to the action of the court in admitting these records, and may be considered together. Appellant had specially answered, claiming that the deed and agreement were not a conditional sale as it purported to be, but a mortgage; and, in our opinion, the evidence was admissible for the purpose of proving that they had debts as stated in the agreement, and that they had, in the transaction, remitted large sums due as interest; and also of showing by the dismissal of the suits their understanding that the debts were extinguished in the settlement. The records were calculated to throw light upon the transaction and not to prejudice the rights of the defendant.

The defendant offered to testify that when she acknowledged the instruments before the county clerk, he gave her to understand that they were a mortgage, and also offered to prove by the clerk that, when he took her acknowledgement, he explained to her that "she had the right to redeem her homestead property by paying the amount named in the two instruments, and defeat the sale of the property," and that defendant signed the papers with the expression that "if I can redeem my property I will sign the papers." The rulings of the court excluding this testimony are the grounds of the sixth and seventh assignments of error. It is well settled in this court that the wife cannot defeat a conveyance of the homestead or of her separate property by showing that, at the time her acknowledgment was taken, she did not understand the import, or that the officer did not properly explain it to her, unless she also show that these facts were brought to the knowledge of the grantee. Moore v. Moore, 59 Tex. 54; Pierce v. Fort, 60 Tex. 464; Edwards v. Dismukes, 53 Tex. 605; Williams v. Pouns, 48 Tex. 141; Pool v. Chase, 46 Tex. 207. Hence it was not error to exclude the evidence.

In regard to the appellant's eighth assignment of error, we are not prepared to say that the testimony, the admission of which is there complained of, was not objectionable. It seems that the witness' knowledge that all the parties understood the transaction was rather a conclusion from the facts, — a fact which could be proved by the mere general statement. But it also appears, from the other testimony, that appellees had declined to take a mortgage, for the very sufficient reason that the property was a homestead, and that they were willing to agree, only, either to an absolute or a conditional sale. There is no evidence tending to show that Henry Miller did not understand the transaction as making a conditional sale. In view of the very explicit statement in the agreement itself, that it was a conditional sale and not a mortgage, it would require clear evidence to the contrary to hold it a mortgage. In regard to Mrs. Miller, it is to be remarked that, upon cross-examination, the witness said he did not know that he had ever talked with her about it. It is probable that, if the objection had been renewed after this fact was drawn out, the testimony would have been excluded, so far as it purported to show her understanding of the contract. This may not have been done, because counsel may have considered that the jury would give no weight to the evidence as to her, — the witness not having conferred with her about the matter. Considering the whole...