Appeal
from Taylor District Court.--H. H. CARTER, Judge.
Suit in
equity, to recover upon a promissory note for $ 800, dated
October 21, 1918, due October 21, 1920, executed by the
defendants C. E. Mason and Nellie Mason to the plaintiff
Pace. Plaintiff admits payment of interest until October 21
1920. W. E. Oxford was made a defendant, as having a
subsequent interest in the mortgaged premises. Oxford
answered, November 24, 1926, admitting the execution of the
note and mortgage, but alleging that the interest was paid
and that only the principal remained unpaid. Oxford filed
also a cross-petition, alleging that, on November 20, 1923
he obtained judgment against the two Masons for $ 1,176.66,
with interest; that, two or three days prior thereto,
defendants Mason made a chattel mortgage to the plaintiff,
Pace, of a number of described horses and other personal
property, upon which, Oxford alleges, by reason of suit to
subject it, and notice thereof served on Pace, he acquired a
lien; that Oxford obtained judgment subjecting the property,
but that, after the lien was obtained, and prior to judgment,
Pace and the Masons fraudulently did away with such personal
property, to the value of $ 1,000, for which sum, and $ 2,000
punitive damages, Oxford demands judgment, and establishment
of the judgment as a lien on the interest of Pace in the note
and mortgage and on the premises described in plaintiff
Pace's petition herein. Pace moved to transfer to the law
docket Oxford's cross-petition. This motion was
sustained. Decree for the principal of the note and for
interest after October 21, 1920, and for foreclosure. Oxford
appeals.--Reversed and remanded.
Reversed and remanded.
OPINION
MORLING, J.
I.
Plaintiff's
right to recover the principal of the note is undisputed. We
inquire first into his right to interest. The record shows
that, under date of November 17, 1923, the Masons conveyed to
the plaintiff the mortgaged premises by warranty deed,
recorded the same date, and, under date of November 17, 1923,
gave to plaintiff a chattel mortgage on 10 head of milk cows,
60 head of swine, 16 horses and mules, and other live stock,
and farm machinery, and other property. This chattel mortgage
was recorded November 17, 1923. Plaintiff's reply admits
Oxford's allegation that, at the February term, 1925, of
the district court, judgment was entered, subjecting this
property to the payment of Oxford's judgment. The record
shows that the court also adjudged Mason's deed to Pace
of the real property to be fraudulent as to Oxford, and
established Oxford's judgment as a lien upon the real
property, "except as to one mortgage of $ 800 held by
the defendant M. V. Pace" (plaintiff here). Defendant
Nellie Mason is the plaintiff's daughter.
Plaintiff and C. E. Mason were witnesses called in
plaintiff's behalf. Oxford has the burden of proving his
allegation of payment of interest. Pace, however, testifies:
"The
interest was paid up till the first of that month. Q. Till
the first of March, 1926? A. Yes. Q. The interest was paid
up? A. Yes, sir. Q. So you weren't bothered at all about
the rents--didn't care what became of those? A. I went on
from that, on collecting the rent. Q. Then you applied that
on the interest that accumulated after March 1, 1926? A. No,
you see I had the place when I took it. Q. How did you get
the place? A. He deeded it to me. * * * Q. You are referring
to the deed from Mason and his wife made to you for the New
Market (mortgaged) property? A. Yes. Q. And that the court
set aside because of the fraud? A. Yes. Q. Did you ever get
any other deed from Mason? A. No, I just got that deed."
Plaintiff,
therefore, testifies to the payment of interest "till
the first of March, 1926." He gave, however,
contradictory testimony. In considering this, account must be
taken not only of his interest and of his relationship to the
Masons, but of his established participation in conveyances
to him in fraud of Oxford's rights. His
fraudulent disposition is shown also by his testimony. His
fraud does not, however, establish the alleged payment of
interest, but the unguarded answers of one disposed as
plaintiff was toward Oxford are of more value as evidence
than his guarded and hedging testimony given in attempting to
urge or to serve his own interest or the interest of his
daughter and son-in-law.
As has
been noted, the deed of the mortgaged property from the
Masons to Pace is dated November 17, 1923. The trial of this
action was had on April 27, 1927. Defendant C. E. Mason
testifies that this deed was "intended to convey the
title absolutely."
"Q.
Which way did you swear to at the trial of that case in 1925?
A. I don't know. Q. Then you say that you testified at
that time that deed was absolutely? A. No, I am not sure what
I said, but I should have. * * * Q. You ceased to have any
interest in it after you executed the deed, and nothing to do
whatever, and authorized him to collect for the rents? A.
Yes. Q. And so far as you know, he has continued to do that?
A. Yes, sir."
He also
testifies:
"Q.
Have you paid any interest or principal on that note since
the last indorsement on there,--on the note which was for the
year 1920,--first of the year 1920? A. No, sir."
Literally,
this answer may be true, and the interest still be paid.
Pace
testifies that the interest was paid until October 21, 1919,
and for 1920, according to indorsements on the note. "Q.
Have any payments been made on that since that time? A. No,
sir, not that I remember of." He also testified:
"Q.
How long have you been collecting the rents from the premises
described in this mortgage you are foreclosing? A. Let's
see--a year--this last March, a year. Q. March, 1926? A. Yes.
Q. Do you remember being on the witness stand here in
February, 1926? A. Yes. Q. Do you remember anything that you
testified to at that time? A. No, I don't. Q. Do you
remember whether or not you didn't at that time state
that you had been collecting the rents on that New Market
property covered by your mortgage,--didn't
you tell this same court at that time that you had been
collecting the rents on the New Market property covered by
that mortgage? A. From March the 24th,--let's see--* * *
year ago last March is all. Q. Then you didn't tell this
same court--A. Before that, I didn't collect it. Q. Who
did? A. Mason, I guess. [Here follows Pace's testimony to
the payment of the interest until March 1, 1926, above
quoted.] You didn't collect the rent on that place until
after March, 1926? Is that right? A. I think that is right;
yes, a year ago this last March. Q. And you didn't
collect the rent because your interest was paid? A. No, my
interest hadn't been paid. Q. A while ago you said that
interest had been paid on your note, and you didn't
collect it until after March 1, 1926. A. Didn't collect
the rent, I told you. Q. Why didn't you collect the rent
prior to that time? A. Paid it over to Mason * * * Brown
moved in the place in August, 1924. He stayed there just
about a year. He paid $ 12.50 rental. * * * I don't know
what he paid him. Paid me monthly. * * * When Brown moved out
of the place, a man by the name of Arthur Gray moved in. Gray
moved in about September 1st, 1925. He stayed there just
about a year. * * * Q. Did he give you a check or cash? A.
Check. Q. How did Brown pay,--did he pay by check or cash? A.
He paid cash some of the time, check part of the time. Q. Did
he make the check payable to you? A. Yes, sir. After Gray
vacated the premises, a man by the name of Jones lived there.
He moved in about September, 1926. He stayed there until the
first of this last March. He paid a rental of $ 14. * * * He
did not pay it to me. He paid it to my daughter. * * * She
collected it for herself, * * * because I had sold her the
place. * * * Q. Tell me the date you sold her the place. A. I
think it was in December; I wouldn't say for sure. * * *
Q. In 1925? A. About that time, I think, as far as I can
remember. * * * I made her a deed. Q. You say you collected
the rent from the place for the last year and a half? A. No,
I didn't collect it, my wife did--my daughter did. Q. You
said a while ago you collected it. A. No, I said I collected
from the second time up till a year ago last March. After I
made her this deed in December, then I let her collect it. Q.
What period was it since January, 1924, that you collected
the rents from that place? A. I couldn't tell you now,
* * * Well, I made the deed to her, and had
the trade all made. Q. I want to know how much money you
collected in rent from that place. A. I collected it about a
year. Q. When? A. From one March to the next. Q. What year?
A. 1925 or 6,--I wouldn't say which. Q. How much did you
collect in 1924? A. I don't know now how much. Q. How
much did you collect
in 1925? A. Well, sir, I couldn't tell you. Q. In 1926,
how much? A. I don't know. Couldn't tell you anything
about that, for I didn't keep any track of it."
Pace
also testified:
"I
do not have any book or any written memoranda of my
transactions with the Masons."
He also
testified that:
"I
never collected any rent and applied it on this note. I never
collected any until after that deed."
After
recess, he was recalled and testified in his own behalf:
"Q.
You said something this morning about receiving some rent on
the premises now in controversy here,--have you a memorandum
whereby you could state how much rent you received? A. I
think I had some papers. I think $...
