Norton v. Lea

• Decision Date: 25 March 1926
• Docket Number: (No. 323.)
• Parties: NORTON et al. v. LEA.
• Court: Texas Court of Appeals

283 S.W. 316

NORTON et al. v. LEA.

(No. 323.)

Court of Civil Appeals of Texas. Waco.

March 25, 1926.

Appeal from District Court, Robertson County; W. C. Davis, Judge.

Action by Lora Norton and others against P. J. Lea. Judgment for defendant, and plaintiffs appeal. Affirmed.

W. W. Ballew, of Corsicana, and F. A. Woods, of Franklin, for appellants.

Richard & A. P. Mays, of Corsicana, and Ben L. Parten, of Franklin, for appellee.

GALLAGHER, C. J.

This is a suit by F. W. Norton and the surviving wife and heirs at law of his son, W. H. Norton, deceased, appellants herein, against P. J. Lea, appellee herein, to recover 925 acres of farming land situated in Robertson county, Tex., and also certain personal property used in operating the same, or, in the alternative, to recover the proceeds of the sale of said property, less an admitted indebtedness to appellee. This is the second appeal. On the first trial there was a verdict and judgment for appellee. This judgment was reversed on appeal on account of errors in the charge. Norton v. Lea, 170 S. W. 267.

The property involved herein was conveyed by F. W. Norton and his son, W. H. Norton, now deceased, to P. J. Lea, in January, 1905. Appellants claimed that said conveyances, while absolute in form, were intended merely to invest the grantee with the legal title to the property described therein in trust to secure their indebtedness to him and to authorize him to operate the farm and to dispose of all of said property for the mutual benefit of both parties thereto, and, after discharging the debt of the grantors to him, to return the net surplus to them. Appellee claimed that he purchased all of said property in consideration of the full satisfaction, surrender, and cancellation of said indebtedness owed to him by said grantors and secured by liens on said property, and that said conveyances were intended to be absolute in effect, as well as in form, and to evidence a completed sale of said property to him.

There was a trial before a jury. The contention of the respective parties was submitted by the court for the jury's determination in the following form:

"Was it understood and agreed by and between W. H. Norton and F. W. Norton and P. J. Lea at the time of the execution of the deed by the said W. H. and F. W. Norton to P. J. Lea on January 2, 1905, conveying said 925 acres of land in Robertson county, Tex., that the said P. J. Lea should take charge of said land, and all teams, implements, etc., on said land, and manage and cultivate said land, and to have all the revenues and rents from same in lieu of the interest on the amount due said P. J. Lea by said W. H. and F. W. Norton, and that the said P. J. Lea should put said farm in good condition and afterwards to sell same, together with all teams, tools, and implements received by Lea from the Nortons, and pay to said W. H. and F. W. Norton the amount received therefor, less the amount due said P. J. Lea by the said W. H. Norton and F. W. Norton?"

The jury answered said issue in the negative. Appellants did not object to the manner in which the case was submitted to the jury; neither did they request the submission of any special issues. The court gave a special charge at their request. No other charges were requested by them. All other issues submitted were made dependent on an affirmative answer to the issue above quoted. Since it was answered in the negative, no other issue was answered. The court rendered judgment in favor of appellee, and said judgment is here presented for review.

Appellants contend as grounds for reversal that the verdict of the jury was without support in the evidence. The evidence was sharply conflicting. We have examined the same, and are of the opinion that the finding of the jury on the issue submitted is sufficiently supported by the evidence.

Appellants contend that the judgment should be reversed because the court excluded the testimony of F. W. Norton, one of the appellants, offered by them, as they state, for the purpose of showing his intent in executing the deed of conveyance to appellee here under consideration and his reason for doing so. The substance of the testimony excluded was that he, the said witness, and the said W. H. Norton, now deceased, were joint owners of all the property so conveyed; that he signed the deed conveying the land to appellee because his said son told him that appellee had agreed that, if they would put the title to the farm in his name and turn it and said property over to him, he would manage and operate the same until a sale could be made, and that he would accept the revenue arising from such operation for his services, expenses, and current interest, and that upon the sale of said property he would turn over to them the surplus proceeds of such sale after satisfying their indebtedness to him; that he, said witness, signed said deed upon such representation; and that he relied thereon in doing so and would not have signed the same for delivery as an absolute conveyance. It was shown in this connection by said deposition that appellee was not present at the time these representations were made to said witness, nor at the time he signed said deed, and that he personally had no direct dealings with appellee; that all he testified about was done through his said son. The court qualified the bill of exception complaining of the exclusion of said testimony by stating that it affirmatively appeared that said witness had no personal knowledge of the matters about which he sought to testify and that his only means of knowledge was what his said son had told him, and his testimony was therefore hearsay. The character of the instruments under consideration with reference to being conveyances of the property described therein in fee, as contended by appellee, or in trust, as contended by appellants, is to be determined by the intent with which the grantors executed and delivered and the grantee received the same. Secret intentions on the part of said witness, not disclosed upon the face of the deed, and not known to the appellee at the time he accepted delivery of the same, were not admissible nor entitled to be considered in determining such issue. Gray v. Shelby, 18 S. W. 809, 83 Tex. 405; Davis v. Brewster, 59 Tex. 93, 97.

Appellants complain of the action of the court in permitting A. S. Lane and certain other witnesses to testify over their objection to the market value and general condition of the land and property involved in this suit from 1901 to 1905. The evidence disclosed that said F. W. Norton and his son, W. H. Norton, purchased the farm involved in this suit in December, 1902, from John C. Roberts, for a recited consideration of $16,000; that a few days later they executed a deed of trust thereon to secure appellee in the payment of a note for $11,200, bearing 10 per cent. interest from date and payable January 1, 1906; that they operated said farm during the years 1903 and 1904; that to enable them to do so they borrowed an additional sum of between $1,500 and $1,600 in money from appellee, and secured the same by a lien on said property; that they also secured an indebtedness to appellee of more than $2,000 arising out of another transaction by a lien on said property; that they were unable to pay interest on any of said...