Price v. Seiger

• Decision Date: 18 October 1930
• Docket Number: No. 12365.,12365.
• Citation: 33 S.W.2d 519
• Parties: PRICE et ux. v. SEIGER et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

33 S.W.2d 519

PRICE et ux. v.SEIGER et al.^*

No. 12365.

Court of Civil Appeals of Texas. Fort Worth.

October 18, 1930.

Rehearing Denied November 22, 1930.

Appeal from District Court, Cooke County; B. W. Boyd, Judge.

Action by Frankie Seiger and another against W. C. Price and wife.From a judgment for plaintiffs, defendants appeal.

Affirmed.

W. S. Moore, of Gainesville, for appellants.

Culp & Culp, of Gainesville, for appellees.

BUCK, J.

Frankie Seiger and Joseph Seiger filed suit in form of trespass to try title against W. C. Price and his wife, Mrs. Mollie Price.The plaintiffs were the sons of Mrs. Mattie Seiger, or Mrs. B. H. Seiger.The proof showed that Price and wife had executed to Mrs. Seiger for a stated consideration of $1,500, paid in cash, a deed to the lot and lands in controversy.That Mrs. Seiger had died prior to the filing of the suit.

The defendant pleaded that the property described in plaintiffs' petition had been occupied by himself and wife as a homestead, and was occupied at the time of the suit as a homestead by defendantW. C. Price; his wife having died.Defendant introduced in evidence an instrument in writing as follows:

"W. C. Price and wife this date January 21st borrowed from said Mrs. B. H. Seiger fifteen hundred dollars ($1500) on their home 509 Weaver Street, Gainesville, Texas, and transferred deeds to same as security for said money.It is also agreed that W. C. Price is to pay to Waples-Painter Lumber Co. a note held by same on said property.It is also agreed in this contract that W. C. Price can redeem this said property any time within five (5) years from date of this loan.Loan to draw 10% interest until paid.It is further agreed if W. C. Price and wife should fail to redeem this said loan within time mentioned (5) years the said Mrs. B. H. Seiger agrees to refund to the said W. C. Price or wife the six hundred dollar note paid to Waples-Painter Lumber Co. and receive a clear title to said property mentioned in this contract.Interest on this money can be paid monthly, yearly, or at expiration of this contract."

It will be noted that the note and instrument in writing is dated January 21, 1926.The deed from W. C. Price and wife, Mrs. Mollie Price, is dated also January 21, 1926.

The trial court submitted the case on two special issues, which issues, with their answers, are:

"1.Was the deed from W. C. Price and wife, Mollie Price, to Mrs. B. H. Seiger and dated January 21, 1926, which on its face is an absolute warranty deed, intended by the parties thereto as a mortgage or security for a loan?Answer yes or no.

"Answer: No.

"2.Was the instrument in writing dated January 21, 1926, purporting to be a contract signed by W. C. Price, Mollie Price and Mrs. B. H. Seiger, in fact signed and executed by the said Mrs. B. H. Seiger?Answer yes or no.

"Answer: Yes."

Upon this verdict the court rendered judgment for the plaintiff.The court found in his judgment that under the uncontradicted evidence in the case the instrument mentioned in issue No. 2 in his charge was executed, if at all, after and subsequent to the execution of said deed mentioned in said issue No. 1, and was no part of the transaction in the execution and delivery of said deed, and further found that plaintiffs were entitled to judgment for and possession of a lot being 51×200 feet on Weaver street in the city of Gainesville, more particularly described in the judgment and pleading.From this judgment the defendant has appealed.

Opinion.

After the evidence was all in, and the court had submitted his charge to counsel for objections and exceptions, the defendant filed his second motion to be allowed to open and close the argument before the jury.The first motion filed did not contain any admission that plaintiffs had a good cause of action as set forth in the petition, except so far as may be defeated in whole or in part, by the facts of the answer constituting a good defense, which may be established on the trial, as provided in rule 31 for the district and county courts.See rules of the courts, by Harris.

The second motion complied with rule 31, but it was filed after the evidence was all in.Was it too late?

There is no doubt that the instrument purporting to be a general warranty deed did convey the title to the property to the purported grantee if it was the intention of the parties at the time to so convey it.Although the parties to the transaction involving the execution and acceptance of the deed thereafter executed an instrument showing, or tending to show, that the deed was not in fact intended as a mortgage, yet, if at the time of the execution of the deed it was the intention of the grantors, both Mr. and Mrs. Price, to give a general warranty deed, and it was the understanding of Mrs. Seiger that a general warranty deed had been given, we do not think that any after-executed instrument would change the effect and scope of the deed theretofore executed.

Mr. Granville Jones, an attorney practicing in Gainesville, testified that he went out to the residence of W. C. Price, in the latter's car, to take the acknowledgment of Mr. Price and his wife.The acknowledgment is in due form as a privy acknowledgment of the wife.He testified that he saw Mrs. Price privily and apart from her husband, and explained to her the instrument she was executing was a warranty deed to the property therein described, and that she acknowledged the instrument to be her act and deed and declared that she did not wish to retract it.He further testified that some time before he prepared this deed defendant Price came to see him and told him he wanted to draw up a mortgage, securing a certain sum of money, on his homestead, and witness told him that such a mortgage was not "worth a dime," and that he would not prepare an instrument of that kind without first telling Mrs. Seiger the value of it, because it would be worthless.That when Price later came back to his office, he had the attorney prepare this deed.That he read the deed over to both Mrs. Seiger and Mr. Price, evidently before he went out to the Price homestead.

The main issues involved in this appeal are: First, that the evidence as a whole shows that it was the intention of the grantors and the grantee at the time of the execution of the deed that said deed in form should be in effect a mortgage; and, second, that the trial court erred in not granting the appellant the right to open and close the argument.We will discuss now the latter proposition.

Rule 31, prepared by the Supreme Court for the guidance of district and county courts, provides:

"The plaintiff shall have the right to open and conclude, both in adducing his evidence and in the argument, unless the burden of proof of the whole case under the pleadings rests upon the defendant, or unless the...