Rice v. Ward

• Decision Date: 22 June 1899
• Citation: 51 S.W. 844
• Court: Texas Supreme Court
• Parties: RICE et al. v. WARD et al.

51 S.W. 844

RICE et al. v. WARD et al.

Supreme Court of Texas.

June 22, 1899.

Certified questions from court of civil appeals of Third supreme judicial district.

Action by John Ward and others against William Rice and others. From a decree for complainants, defendants appealed to the court of civil appeals, which certified questions to the supreme court. Decided in favor of complainants.

Finks & Gordon and L. W. Goodrich, for appellants. Geo. Clark, Z. I. Harlan, Rice & Bartlett, and Sam R. Scott, for appellees.

BROWN, J.

The court of civil appeals for the Third supreme judicial district has certified to this court the following statement and question: "This is a suit on appeal now pending in the court of civil appeals of the Third supreme judicial district of Texas. The action is one by the appellees, as the heirs at law and as legatees and devisees under the will of S. S. Ward, deceased, against the appellants, for a decree declaring a general warranty deed absolute in form, executed by S. S. Ward to William Rice, of date March 19, 1868, to be in fact a mortgage, and to recover from the appellants the land described in that instrument. In order to a correct understanding of the question hereinafter certified, the court of civil appeals finds the following facts: That on the 19th of March, 1868, S. S. Ward executed and delivered to appellant William Rice the deed in question, which, upon its face, conveys the land in controversy,—1,280 acres located in Falls county, Texas. At the time of the execution of the deed, S. S. Ward was indebted to William M. Rice & Co., and the deed was in fact, as between the parties thereto, intended as a mortgage to secure a debt of $600 due the appellants. There are no words of defeasance upon the face of the deed, nor anything recited therein indicating that it was intended as a mortgage; but there is evidence in the record which warrants the conclusion that it was in reality a mortgage to secure the $600 indebtedness. S. S. Ward died on the 5th day of May, 1873, and at the time of his death the debt secured by the instrument in question had not been paid off or discharged, and up to the time of his death there was no conduct of the appellants which amounted to a repudiation of their relationship as mortgagees. This suit was instituted on the 19th of June, 1895, and the appellees did not, before January of that year, become aware of the fact that the deed in question was a mortgage. They had no knowledge or information, before January of 1895, that the deed in question was other than its terms imported. Ward, before his death, had not informed them that the deed was a mortgage, nor did the appellants furnish them any information upon that subject; but there was conduct of the appellants, after the death of Ward, of a character which had a tendency to lead the appellees to believe that the instrument was in reality an absolute deed and conveyance of the land, and the facts in the record warrant the conclusion that from the time of the death of S. S. Ward to January, 1895, nothing occurred of a nature calculated to excite any inquiry upon the part of the appellees in order to ascertain that the deed was a mortgage. The trial court, in effect, submitted to the jury the question of fact whether the plaintiffs became aware of their rights, or might, by the exercise of diligence, have discovered such rights. And, further, in order that the repudiation of the trust on the part of William Rice, if any existed, should affect the plaintiffs, it would be necessary for the plaintiffs to be aware of the trust relation, or be chargeable with such notice. With this statement and findings, the court of civil appeals of the Third supreme judicial district of Texas certifies to the supreme court of Texas the following question, which arises from the record in this case: Was the knowledge possessed by S. S. Ward that the deed was really intended as a mortgage imputed to the appellees, who hold under him as his heirs or as...