Olschewske v. Priester

• Decision Date: 25 June 1924
• Docket Number: (No. 1119.)
• Citation: 264 S.W. 517
• Parties: OLSCHEWSKE v. PRIESTER et ux.
• Court: Texas Court of Appeals

264 S.W. 517

OLSCHEWSKE v. PRIESTER et ux.

(No. 1119.)

Court of Civil Appeals of Texas. Beaumont.

June 25, 1924.

Appeal from District Court, Harris County; W. E. Monteith, Judge.

Action by Simon Priester and wife against William H. Olschewske. From an adverse judgment, defendant appeals. Affirmed.

Wm. Masterson and Andrews, Streetman, Logue & Mobley, all of Houston, for appellant.

Dannenbaum, Amerman & Sears, of Houston, for appellees.

O'QUINN, J.

August 23, 1922, Simon Priester and his wife, Fredericka Priester, sued Wm. H. Olschewske to recover certain real estate, alleging that they had conveyed same to the defendant by a deed absolute in form, but, in fact, merely in trust for the purpose of enabling him to execute a mortgage thereon and procure a loan from one Japhet to pay off an indebtedness of theirs amounting to $22,500. September 24, 1922, Simon Priester died and left a will, in which his wife, Fredericka Priester, was named as sole devisee and appointed independent executrix without bond. These facts were set up in an amended petition filed October 24, 1922, by Fredericka Priester in her own behalf and as temporary administratrix; the same relief being sought, substantially, in the amended petition as in the original.

February 5, 1923, Wm. H. Olschewske filed his first amended original answer. He admitted that the conveyance executed by Priester and wife to him was not absolute, but that same was made for the purpose of enabling him (defendant) to execute a mortgage on the property to secure the loan of $22,500 made by Japhet, which he did, and also to secure all other indebtedness owing to him by Wm. Priester. He also admitted that it was understood by and between Simon Priester and defendant that the property conveyed by Priester and wife to defendant, known as lots 8, 9, and 10, in block 63, city of Houston, south side of Buffalo bayou, corner Texas avenue and Bagby street, was the separate property of Mrs. Fredericka Priester, and that same was, in fact, conveyed in trust for Mrs. Priester, and that she was entitled to same, and that judgment should be entered in her favor therefor. In his said answer, defendant reconvened against Mrs. Fredericka Priester "as sole devisee and independent executor under the will of Simon Priester," and alleged that the indebtedness owing to him by Simon Priester was partly in the form of an account in the sum of $2,068.47, for moneys advanced and a note dated October 13, 1920, for the sum of $9,400, and prayed for judgment against her as such for the amount of the account and note.

The will of Simon Priester having been duly probated, and Mrs. Fredericka Priester having duly qualified thereunder as independent executrix, she filed a supplemental petition, individually and as independent executrix of the estate of Simon Priester, in which she denied the indebtedness upon said account, and denied that the note for $9,400 set up in defendant's answer in reconvention was executed by Simon Priester or by his authority. She alleged that the note had been falsely and fraudulently altered in a particular and material manner; that it had originally been made out for $400, and that without the knowledge or consent of Simon Priester had been fraudulently raised to $9,400, thereby rendering the note a forgery and void. This plea she verified under and in accordance with article 1906 of the Revised Statutes. She also alleged that the note in the sum of $400 had been paid out of funds belonging to said Simon Priester which had come into the hands of defendant.

Upon the trial, the only issues submitted to the jury were upon the question of alteration of the note. The jury found that the note had been raised by the defendant from $400 to $9,400, without the consent of Simon Priester. Upon this verdict the court entered judgment (1) decreeing lots 8, 9, and 10, block 63, city of Houston, south side of Buffalo bayou, to Mrs. Priester as her separate property, in accordance with the tender of defendant; (2) decreeing that as to the other property embraced in the deed from Simon Priester and wife to Olschewske, the same was intended merely as security for the Japhet lot and for no other purpose; (3) finding that there was a balance due to defendant of $1,124, on account of such loan, and giving defendant a lien upon all the property mentioned in the deed in question, except the separate property of Mrs. Priester, tendered in defendant's pleadings, to secure the payment of said sum; and (4) denying defendant a recovery upon the $9,400 note and ordering it canceled. The judgment against Mrs. Priester for $1,124 was against her individually and in her capacity as independent executrix, in accordance with the prayer of defendant in his cross-action.

Motion for new trial was overruled, and defendant appealed.

The sharply contested issue of fact was whether appellant had fraudulently raised the note in question from $400 to $9,400. Appellant's first proposition complains that the court erred in not permitting him, while on the stand testifying in his own behalf, to answer the following question propounded to him by his attorney:

"Did you or any one else ever make any alterations in that note after Mr. Priester signed it?"

Appellee objected to the question, on the ground that this evidence constituted testimony concerning a transaction with a deceased person, and was in contravention of article 3690, Revised Statutes. The objection was sustained by the court, and the testimony excluded. If appellant had been permitted to answer the question, his answer would have been: "No, sir; none whatever." Appellant insists that the testimony was admissible because his denial that any change had been made in the note after its execution and delivery to him was not testimony concerning a transaction with the deceased. The effect of appellant's contention is that anything he may have done or not done to or relative to the note after its execution and delivery to him by Simon Priester did not constitute a transaction with the deceased. In other words, appellant endeavors to separate the "transaction" involved in the alleged raising of the note from the "transaction" involved in the execution of the note; the contention being that the alleged forgery necessarily took place outside of the presence of the deceased, and hence could not be a "transaction" with the deceased. We do not believe the contention is sound. Appellant's cross-action was based upon the note. The testimony offered was concerning the note. The note unquestionably was a transaction with the deceased. The testimony contended for, when the question and answer are considered, was only putting into a negative form the statement:

"Mr. Priester signed that note. After Mr. Priester signed that note, neither I, nor anybody else, ever made any alterations in it; none whatever."

The effect of this testimony is that Priester signed the note; that it had not been changed; therefore he signed it in its present form and for $9,400. It seems plain that this would be testifying directly concerning a transaction with the deceased, and simply because it was offered in a negative form does not relieve it from the inhibition of the statute. The court did not err in excluding the testimony. Johnson v. Lockhart, 16 Tex. Civ. App. 32, 40 S. W. 640; McCampbell v. Henderson, 50 Tex. 613; Abbott v. Stiff (Tex. Civ. App.) 81 S. W. 562 (writ denied); Swan v. Price (Tex. Civ. App.) 162 S. W. 994, 998; Leahy v. Timon, 110 Tex. 73, 215 S. W. 951; Holland v. Nimitz, 111 Tex. 432, 433, 232 S. W. 298, 239 S. W. 185; Perez v. Maverick (Tex. Civ. App.) 202 S. W. 199; Zinn v. Farmer (Tex. Civ. App.) 243 S. W. 523; Adams v. Adams (Tex. Civ. App.) 253 S. W. 605; O'Connor v. Slatter, 48 Wash. 493, 93 Pac. 1078; Young v. Bank, 187 Ky. 71, 218 S. W. 463; Darraugh v. Denny, 196 Ky. 614, 245 S. W. 152; Vannatta v. Willett, 103 Ky. 354, 45 S. W. 85.

Appellant's second proposition is:

"Said $9,400 note having been offered in evidence and having been contested on the ground that the same had been fraudulently altered after its...