Morrison v. Faulkner

• Decision Date: 06 March 1891
• Citation: 15 S.W. 797
• Parties: MORRISON <I>et al.</I> v. FAULKNER.
• Court: Texas Supreme Court

Page 797

15 S.W. 797

MORRISON et al. v. FAULKNER.

Supreme Court of Texas.

March 6, 1891.

Appeal from district court, Harris county.

A. T. Patrick, for appellant. O. T. Holt, for appellee.

STAYTON, C. J.

This action was instituted by appellee on a promissory note alleged to have been executed by appellants as partners on October 11, 1888, to secure the purchase money of a tract of land conveyed by him to them on which foreclosure of lien was sought. Defendants, by an answer, sworn to by one of them, alleged that the note was without consideration; that it was executed under duress, caused by fear of a criminal prosecution threatened by Faulkner, for an offense of which they were not guilty; that title to part of the land for which it was executed had failed; and defendant R. R. Morrison alleged that the note was executed by O. R. Morrison without his authority or consent or ratification, and that it was not executed for a partnership purpose. The case was tried by the court, and a judgment rendered for the plaintiff. The uncontroverted evidence shows that M. C. Johnson was indebted to defendants, who were merchants doing business under the name of Morrison & Bro., in the sum of $800, and that to secure this he executed to them a deed for 1,280 acres of land, which embraced the land subsequently conveyed by Faulkner to them. At the time the deed was executed Johnson furnished defendants with a statement from the land commissioner or from the surveyor of the county to the effect that the land would be patented to him. After defendants received the deed, with consent of Johnson, they gave a mortgage on the land to a person in Galveston from whom they borrowed $1,350, explaining to the lender how they held the property; in fact, the deed seems to have been made to them with the understanding that they should use it as a security, and it was intended as between the parties only as a mortgage. About 10 minutes after the mortgage was executed Johnson proposed, if defendants would reconvey to him, that he would pay to them the sum he owed them, and they did so. Prior to this last occurrence Johnson had seen Faulkner, who had agreed, if Johnson would convey to him 640 acres of land, to take up Johnson's note to Morrison & Bro., which they had deposited in Galveston as collateral security, with the mortgage on which they had borrowed money, and it was with a view to enable Johnson to carry out his agreement with Faulkner that Morrison & Bro. made the reconveyance. Neither of the Morrisons had any conversation with Faulkner, nor in any manner participated in the transactions between Faulkner and Johnson, but they consummated their agreement, Faulkner paying the note of Johnson held by Morrison & Bro., and by them deposited as collateral security, the sum so paid going to the person from whom they had borrowed money; and Johnson conveyed to Faulkner the 640 acres of land by a deed with general warranty; and the deed made by Johnson to Morrison & Bro., as well as the reconveyance made to Johnson, contained like averments, as well as recital that the land was patented; but both these deeds were prepared by Johnson, or under his direction, and neither of the Morrisons in fact knew that they contained averments of warranty or recitals that the land had been patented. After Johnson had conveyed to Faulkner, the latter discovered that the land had not been patented, and it was subsequently ascertained that, on account of conflicts with older surveys, there was but little more than 500 acres that could be patented, and through the efforts of...