Pridgen v. Furnish

• Decision Date: 17 October 1928
• Docket Number: (No. 8043.)
• Parties: PRIDGEN et al. v. FURNISH et al.
• Court: Texas Court of Appeals

11 S.W.2d 844

PRIDGEN et al. v. FURNISH et al.

(No. 8043.)

Court of Civil Appeals of Texas. San Antonio.

October 17, 1928.

Rehearing Granted November 14, 1928.

Overruled December 19, 1928.

Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.

Action by D. K. Furnish against Mary A. Pridgen, Adolph Wagner, and others, in which defendants Pridgen and others pleaded over against defendant Wagner. From a judgment for plaintiff and defendant Wagner, defendants Pridgen and others appeal. Affirmed.

Newton & Woods, Hull & Oliver, and Briscoe & Morris, all of San Antonio, for appellants.

Joe L. Hill, Church, Lawley & Graves, Cunningham, Moursund & Johnson, W. M. Groce, J. B. Lewright, and Chas. F. Guenther, Jr., all of San Antonio, for appellees.

COBBS, J.

Appellants' statement on this appeal is:

"This suit was brought by D. K. Furnish October 8, 1924, against Mary A. Pridgen, Oscar F. Pridgen, Adolph Wagner, E. P. Butler and Mrs. E. P. Butler, in which plaintiff alleged that Mary A. Pridgen and Oscar F. Pridgen executed a certain note for the sum of $36,294.51 with six per cent. interest, due in semi-annual installments of $1,200.00 each, the first due in six months until two years after date, when payments were increased to $1,800.00 each six months, conditioned that all of the principal shall become due in ten years, and providing that the interest shall be deducted from such semi-annual payments and the balance applied to principal, and providing that the makers have the privilege of paying more than the said sums required at any date; said note given for what is known as Lot No. 6 and a strip adjacent thereto, in New City Block 139, in the City of San Antonio, known as the `Butler Hotel,' to Adolph Wagner for the above property, and by said Adolph Wagner assigned to plaintiff without recourse.

"Defendants Pridgen and Butler answered by general demurrer, general denial and pleaded specially and set up that the property was conveyed to the defendants Mary A. and Oscar F. Pridgen to be by them held in trust for the purpose of making a sale of the property through the agency of their daughter Mrs. Butler, and that it was held in trust by the defendants Pridgens, and that the note was an accommodation paper executed by the said Pridgens to enable the said Wagner, the real owner, to more easily sell said property, and that defendants Pridgens had executed a deed to the said Adolph Wagner to their property on Broadway as security, and that the said Wagner was holding the said Broadway property in trust for them for a special time and for certain purposes. Said defendants pleaded over against the defendant Wagner and prayed that the court declare the said deed to be a mortgage and that the property was held in trust by the said Wagner and to adjudge the equities between the Pridgens and their co-defendant Wagner and cancel the deed to said Broadway property and declare it to be a mortgage. To this answer the defendant Adolph Wagner filed general and special exceptions which were overruled."

Defendant Wagner filed a motion for an instructed verdict, which was sustained by the court, and thereupon a judgment was rendered on the note in favor of D. K. Furnish for principal, interest, and attorney's fees, and also in favor of the defendant Adolph Wagner against the defendants Pridgens and Butlers on their plea setting up equitable relief for adjustment of the equities and refusing to set aside the deed from Pridgens to Wagner or to declare the same a mortgage. From this judgment the defendants Pridgens and Butlers have appealed.

Since there are no errors assigned nor objections made to the judgment in favor of D. K. Furnish, the judgment in that particular must be affirmed, but as to the controversy between Wagner on the one hand, and the Pridgens and Butlers on the other, a careful review of the record shows that it involved issues of disputed fact such as should have gone to the jury. We refrain from any discussion of the facts, but must adhere to the well-established rule that in such a case it is error for the court to take the case from a jury, thus depriving the parties of the right to a jury trial.

It was fundamental error, and for that reason the judgment of the trial court is reversed, and the cause remanded for another trial, but as to Furnish is affirmed.

On Motion for Rehearing.

There is no issue of conditional delivery in this case as pleaded; besides, there is no evidence tending to support it. A conditional delivery cannot be shown or relied upon to defeat a deed or deed of trust delivered to the grantee. Holt v. Gordon, 107 Tex. 137, 174 S. W. 1097.

The papers including the note indicate a bona fide exchange of property. The Broadway property was conveyed to appellees by the Pridgens at an agreed value of $30,000. There was a lien against lot 9, which Wagner assumed in the trade and promised to pay off. There was a note secured by a deed of trust which Wagner assumed and promised to pay. The remainder of the $30,000, after prorating taxes, was credited against the agreed price of $60,000 on the Portland Hotel property conveyed by Wagner to Mrs. Pridgen. This left the sum of $36,296.34 to be paid by Pridgen to...