Moores v. Wills

Citation5 S.W. 675
PartiesMOORES, Ex'r, v. WILLS and Wife.
Decision Date25 October 1887
CourtSupreme Court of Texas

F. M. Henry and Henry & Henry, for plaintiff in error. H. M. Talbot and Todd & Hudgins, for defendants in error.

GAINES, J.

The testator of plaintiff in error brought this suit against the defendants in error to recover a tract of land, or in the event the court should be of opinion that he was not entitled to a judgment for the land, for a decree enforcing certain liens thereon. After first alleging his ownership of the premises in general terms and the defendants' trespass, the plaintiff in his petition sets forth his title, specially averring that he loaned the defendant C. B. Wills, $150, and that thereupon, for the purpose of securing the loan the latter executed to him a deed for the land in controversy, absolute upon its face. He also averred that at the same time, he executed to defendant an agreement binding himself to reconvey the property upon the payment of the money so lent, with the interest thereon. Now it is clear that the transaction as alleged in plaintiff's petition was merely a mortgage. There is a debt to be secured, a conveyance for the purpose of securing it, and a defeasance to take effect upon the payment of the debt. Baxter v. Dear, 24 Tex. 17. The defense was that at the time of the transaction, the premises in controversy were the homestead of defendants, who were then husband and wife, and that the attempted incumbrance was, therefore, void under the constitution of our state. If a homestead, the transaction could not take effect either as a conditional sale or a mortgage, because the deed from defendant Wills was neither signed nor acknowledged in any manner by his wife. The court below found the issue of homestead, or not, in favor of defendants, and gave them judgment accordingly.

Defendant C. B. Wills was permitted to testify over the objections of plaintiff as to facts tending to show that the land in controversy was his homestead in April, 1880, which was the time of the execution of the mortgage from him to plaintiff's testator. Plaintiff excepted to the ruling of the court and now assigns it as error. The ground of the objection was that the suit was being prosecuted by an executor, and that therefore defendant was incompetent to testify under the statute. The language of our statute in so far as it bears upon the question before us, is: "In actions by or against executors * * * neither party shall be allowed to testify against the other as to any transaction with or statement by the testator. * * * Rev. St. art. 2248. Now the question is, was the defendant permitted to testify as to any transaction with plaintiff's testator? He testified neither to the loan of the money set up in the petition or its payment, nor to the deed executed by himself, or the defeasance executed by the testator. His testimony was as to his purchase of the land, the intention in purchasing it, his sale of his former homestead prior to the transaction in question in this suit; his removal of the household goods upon the place, and his occupancy of one of the houses upon it when the deed was executed; and the absence of his wife and children in Indiana and the reason of their absence. While the tendency of this testimony is to materially affect the validity of the transaction between the witness and plaintiff's testator, it is not testimony "as to" the transaction itself. If the intention had been to exclude parties in such cases from testifying about any fact or facts which in anywise affected a transaction in issue in any suit, it seems to us other and more comprehensive words would have been used. The transactions and conversations between two persons are often known to them only, and it would seem that the object of the exception made by the article from which we have quoted, was to preclude the injustice of permitting one party to the record to testify in regard to matters about which, from the very nature of the case, it was not probable that his testimony could be rebutted. Death having sealed the lips of one of the persons, who best knew and was most interested in the transaction, it would seem impolitic to remove the bar of the common law which excluded the testimony of the other. This appears to be the reason and spirit of the article cited, and if so, the rule would not apply as to facts and circumstances, which, though affecting a transaction, constituted no part of it. Statutes permitting parties to testify, being remedial in their character, receive liberal construction. 1 Whart. Ev. § 464. See, also, Roberts v. Yarboro, 41 Tex. 449; ...

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26 cases
  • Link v. Union Pac. Ry. Co
    • United States
    • Wyoming Supreme Court
    • April 19, 1892
    ... ... 375, 2 P ... 508; Ross v. Sedgwick, (Cal.) 69 Cal. 247, 10 P ... 400; Patterson v. Collier, (Ga.) 77 Ga. 292, 3 S.E ... 119; Moores v. Wills, (Tex. Sup.) 69 Tex. 109, 5 ... S.W. 675; Allen v. Bond, (Ind.) 112 Ind. 523, 14 ... N.E. 492; Poullain v. Poullain, (Ga.) 79 Ga. 11, 4 ... ...
  • Jones v. Selman
    • United States
    • Texas Court of Appeals
    • June 24, 1937
    ...929; Potter v. Wheat, 53 Tex. 401; Dodson v. Watson (Tex.Civ.App.) 225 S.W. 586; Dean v. Dean (Tex.Civ.App.) 214 S.W. 505; Moores v. Wills, 69 Tex. 109, 5 S.W. 675; Emery v. Emery (Tex.Civ.App.) 75 S.W. (2d) The other propositions and assignments relate to questions which will not probably ......
  • Schulz v. L. E. Whitham & Co.
    • United States
    • Texas Supreme Court
    • April 30, 1930
    ...its dedication as such by the head of the family. Markley v. Barlow (Tex. Civ. App.) 204 S. W. 1013, 1014 (Writ Refused); Moores v. Wills, 69 Tex. 113, 5 S. W. 675; Henderson v. Ford, 46 Tex. 627; 13 R. C. L. p. 592, § 56. It is equally elementary that the renting of a homestead does not de......
  • Atkinson v. Jackson Bros.
    • United States
    • Texas Court of Appeals
    • December 3, 1923
    ...with a homestead character. Franklin v. Coffee, 18 Tex. 413, 70 Am. Dec. 292; Swope v. Stantzenberger, 59 Tex. 387; Moores v. Wills, 69 Tex. 109, 5 S. W. 675; Parr v. Newby, 73 Tex. 468, 11 S. W. 490; Gallagher v. Keller, 87 Tex. 472, 29 S. W. 647; West End Town Co. v. Grigg, 93 Tex. 451, 5......
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