Ragland v. Wisrock

• Decision Date: 15 April 1884
• Docket Number: Case No. 5076.
• Citation: 61 Tex. 391
• Parties: THOMAS J. RAGLAND ET AL. v. MARY WISROCK ET AL.
• Court: Texas Supreme Court

61 Tex. 391

THOMAS J. RAGLAND ET AL.

v.MARY WISROCK ET AL.

Case No. 5076.

Supreme Court of Texas.

Apr. 15, 1884.

APPEAL from Tarrant. Tried below before the Hon. A. J. Hood.

On the 29th day of November, 1881, appellant, Thomas J. Ragland, filed petition in trespass to try title against Mary Wisrock, Frank, John, Joseph and Lizzie Wisrock, Christina Witzer and her husband, Nicholas Witzer, Barbara Reitz and her husband, John Reitz, for the recovery of two hundred acres of land in a square out of the northeast corner of the George Greere survey of six hundred and forty acres in Tarrant county, which was particularly described. The court was asked to appoint a guardian ad litem for Joseph and Lizzie Wisrock, who were allleged to be minors. The plaintiff gave bond, and a writ of sequestration issued and was executed, and the defendants failing to replevy, the plaintiff gave his replevin bond, and acquired the possession of the land.

The defendants answered by general demurrer, general denial and plea of not guilty. Hyde Jennings, who had been appointed guardian ad litem for Joseph and Lizzie Wisrock, answered, adopting the answer of their co-defendants. Maria James, guardian of Menard James, a lunatic, filed a motion to be allowed to intervene, which was granted, and on the 2d day of March, 1882, Maria James, by her attorney, filed a petition of intervention as against plaintiff and the defendants, and also against Nicholas and Mike Wisrock, claiming in substance that the ward, Menard James, was the owner in fee, and entitled to the possession, of an undivided one-sixth interest in the George Greere survey of six hundred and forty acres, and alleged that the defendants and Nicholas and Mike Wisrock claimed the whole of the survey, and that plaintiff Ragland claimed two hundred acres thereof in the northeast corner of the survey, and asked for judgment for the one-sixth interest.

Plaintiff filed an answer to this plea of intervention on May 12, 1882.

1st. Denying that intervenor had any interest in said land.

2d. Alleging that if the intervenor had any interest, the same should not be set apart out of the two hundred acres claimed by plaintiff, because plaintiff purchased and had a warranty deed to it from Nicholas Wisrock, deceased, and his widow, the defendant Mary Wisrock. That said Mary and the other defendants were the widow and heirs of Nicholas Wisrock, deceased, and were the owners as such of the remaining four hundred and forty acres, and that the share of the intervenor could be set aside out of the four hundred and forty acres without prejudice to intervenor's rights.

On May 5, 1882, the defendants filed an answer to the plea of intervention, consisting of--

1st. A motion to strike the same out, because said plea sought to introduce new matter into the suit, and attempted to convert the suit from an action of trespass to try title to one of partition, and because it was not shown that intervenor's rights would be prejudiced by this suit.

The court sustained the motion to strike out, and dismissed the intervenor, to which she excepted.

1st. That the said two hundred acres of land described in the deed from Wisrock and wife to Ragland was intended as a mortgage to secure him, Ragland, in the payment of the sum of money mentioned in the deed, and therefore void.

2d. That the deed was procured by fraud from Mary Wisrock; she believing at the time she executed the deed that it was a mortgage to two hundred acres of land out of the south end of the Greere survey, and not the homestead, and therefore void.

The validity or invalidity of the deed from Nicholas Wisrock and wife to plaintiff Ragland was the main question in the case. The jury found a verdict in favor of the defendants, and judgment was accordingly rendered that plaintiff take nothing by reason of his suit.

It will be seen from the opinion that the evidence was strangely conflicting. Enough is stated in the opinion to illustrate the principles announced.

J. Y. Hogsett, for appellant, cited: Brewster v. Davis, 56 Tex., 478, and authorities there cited; also, Rupard v. Coombes, Austin term, 1883, and Walker v. Weaver (not yet reported); Pars. on Con., vol. 2, p. 564, note E; Parker v. Beavers, 19 Tex., 406; Story's Eq. Jur., § 190 a;Id., § 157; Wait's Act. and Def., vol. 4, pp. 518-19; Pars. on Con., vol. 2, p. 564, note 1; Pool v. Chase, 46 Tex., 210;Williams v. Pouns, 48 Tex., 141.

Hyde Jennings and Ball & McCart, for appellees, cited: Davis v. Kennedy, 58 Tex., 516;Wiley v. Prince, 21 Tex., 637; M. S. Cole v. Wm. Bummel, Galveston term, 1884; Carter v. Carter, 5 Tex., 93;Loving v. Milliken, Austin term, 1883 (59 Tex., 423); Texas Law Reporter, vol. 2, p. 75; Stampers v. Johnson, 3 Tex., 4;Hone v. Puckett, 22 Tex., 205;9 Tex., 522;12 Tex., 110;13 Tex., 49;16 Tex., 137;18 Tex., 666;45 Tex., 450;47 Tex., 159;49 Tex., 458;50 Tex., 435;51 Tex., 261;52 Tex., 543;53 Tex., 42.

WILLIE, CHIEF JUSTICE.

The only question of any importance between appellees and the appellant Ragland, presented for our decision, is as to the validity of the deed made to the latter by Nicholas and Mary Wisrock, which purported to convey the land in controversy.

If this was a regular deed of conveyance, duly and legally executed by the grantors named in it, and acknowledged properly by Mary Wisrock privily and apart from her husband, then the judgment below was erroneous and must be reversed.

If, on the other hand, Mrs. Wisrock had good reason to suppose, from all the facts and circumstances surrounding the transaction, and did suppose, that the instrument she was executing was a mortgage; or if through fraud she was induced to believe that the instrument did not convey her homestead--the property described in it,--and these facts or either of them were known to Ragland at the time, or before he paid the consideration, the deed is of no effect as a conveyance of the homestead.

The ignorance as to the character of the instrument, or the fraud which brought about its execution, must concur with notice either actual or constructive on the part of the grantee, in order to avoid the deed, if it is properly certified to by the officer taking the separate acknowledgment. Coles v. Bammel, 3 Tex. L. R., 146; Davis v. Kennedy, 58 Tex., 516.

To this effect was the charge of the court below, and the verdict reached by the jury under such charge must stand if there is sufficient evidence to justify the instructions.

The evidence upon these important points is so conflicting as to be wholly irreconcilable. In such cases it is not our province to set aside the verdict of a jury who heard the evidence as delivered by the witnesses, and the ruling of the judge, who, having the same privilege, has refused a new trial. The only exceptions to this rule are where the verdict was without sufficient evidence to support it, or so decidedly against the preponderance of proof as to show that the jury did not give the cause a due consideration. It matters not that in any particular case we would have found directly contrary to what the jury did, upon the facts brought before us in the record. We do not learn these facts from the mouths of the witnesses. Perhaps if we did, and could see the manner in which they were examined, and the circumstances surrounding them at the time they testified, we should agree with the jury and decide directly to the contrary to what we would if the same facts come to us on paper alone.

In this case we cannot say that the verdict is not sufficiently supported by the evidence, or that it is so decidedly against the weight of the testimony as to warrant us in setting it aside.

It was proved by plaintiff's witnesses that Nicholas Wisrock, the husband, was, previously to the execution of the instrument, indebted to Ragland in something over $2,000, and to one Hart in a still larger sum. That he was anxious to pay Hart, and applied to Ragland to get the money with which to make the payment. He proposed to Ragland that if he would take up Hart's debt that he (Wisrock) would give him a lien upon the land incumbered by that debt; and would also secure the balance due the latter by a lien upon the land in controversy. Ragland was not...