Scripture v. Scottish-American Mortg. Co.

• Decision Date: 17 December 1898
• Citation: 49 S.W. 644
• Parties: SCRIPTURE et al. v. SCOTTISH-AMERICAN MORTG. CO., Limited.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

Page 644

49 S.W. 644

SCRIPTURE et al. v. SCOTTISH-AMERICAN MORTG. CO., Limited.¹

Court of Civil Appeals of Texas.

December 17, 1898.

Appeal from district court, Dallas county; W. J. J. Smith, Judge.

Action by the Scottish-American Mortgage Company, Limited, against R. M. Scripture and others. There was a judgment for plaintiff, and defendants appeal. Affirmed.

This cause grew out of two suits,—one instituted by the Scottish-American Mortgage Company, Limited, against R. M. Scripture, F. E. Scripture, and James B. Simpson, on December 22, 1892, seeking a judgment upon a note for $5,300, with interest, and foreclosure of lien upon 379 acres; and the other instituted on the 7th of January, 1893, seeking a judgment upon a note for $2,000, with interest, and foreclosure of liens upon 288 acres of said 379 acres. The suits were consolidated, and the plaintiff's cause rested upon the claim that on the 25th of September, 1885, the defendant R. M. Scripture executed and delivered to plaintiff his negotiable promissory note, payable June 1, 1890, in the sum of $2,000, with interest from date at 10 per cent., etc., and at the same time, to secure said note, he and his wife, F. E. Scripture, executed to James B. Simpson, as trustee, a deed of trust upon 288 acres of land out of the T. Cheshire and H. Burnham surveys; that on the 29th day of January, 1887, the said R. M. Scripture executed and delivered to the plaintiff his promissory note, payable on the 1st day of December, 1891, in the sum of $5,300, with interest from date at the rate of 10 per cent., etc.; and that at the same time the said R. M. Scripture and F. E. Scripture executed and delivered to James B. Simpson, as trustee, to secure the note, a deed of trust upon 379 acres of land, being the 288 acres of the T. Cheshire and H. Burnham surveys, and in addition thereto 91 acres out of the T. Cheshire, H. Burnham, J. B. Earhart, and M. B. Reynolds surveys. The plaintiff asked judgment against R. M. Scripture for the indebtedness, and foreclosure against all the defendants upon said property. The defendant R. M. Scripture, and the minor children of F. E. Scripture, deceased, Blanche, Reginald, and Frances M., who had been made defendants to the suit, pleaded that 200 acres of the land upon which a foreclosure was sought (said land being described by metes and bounds) constituted, at the time of the execution of the deed of trust, their homestead, and that the plaintiff knew this fact; that they had continually resided in the county of Dallas, after the marriage of R. M. Scripture and F. E. Scripture, with the exception of a short time when they were absent in Denton county, Tex. The plaintiff, in reply, denied that these lands constituted, at the time of the execution of the deeds of trust, the homestead of F. E. Scripture, and alleged that, at the time of the execution of the deeds of trust, the said R. M. Scripture and wife did not reside in Dallas county, but did reside in the county of Denton, state of Texas; that they at said times had purchased property in the city of Denton, upon which they resided as their homestead, and at the time of the transaction herein involved had no claim whatever to any homestead rights in the Dallas county lands; that they then and there, while the Dallas county lands were not occupied, and while they so resided in Denton, Denton county, Tex., and for the purpose of securing the sums of money for which the notes were given and the deeds of trust were executed, to induce the plaintiff to let them have the money, represented to the plaintiff that no part of the Dallas county lands constituted their homestead; that their homestead consisted of lands in the city and county of Denton, state of Texas; that the plaintiff believed these representations, and, relying thereon, made the loans in good faith, without any knowledge of the claim set up by the defendants herein; that there was nothing to indicate to the plaintiff or any one else that any portion of the Dallas county lands constituted the homestead of the defendants; that the plaintiff would not have made the loans had it had any notice of such claim. Defendants, by their supplemental answer, pleaded that J. B. Simpson was the general agent of the appellee in making the loans, and taking the notes and deeds of trust, and prior to the time of the execution of the same knew that 200 acres of the land constituted the homestead of appellants, and made both loans, not upon the strength of any representation by R. M. Scripture and wife, but that such loans were based upon the value of the excess over the 200 acres, and that the said Simpson induced the said R. M. Scripture and wife to sign said written representation under the pretense that they were mere formalities, and that at the time he knew the same to be untrue, and did not rely thereon. And to this the plaintiff replied (in addition to a denial of the same) that if its agent James B. Simpson, at the time the loans were made, had knowledge of the fact that any part of said lands constituted the homestead of R. M. Scripture and wife, then the transaction was a fraudulent scheme between the said James B. Simpson, its agent, and the said R. M. Scripture and wife to deprive it of its money, and that such knowledge, if it existed on the part of said agent, cannot and did not in any way affect the plaintiff, etc. Appellants filed an admission to the effect that appellee had a good cause of action, as set forth in its petition, except in so far as it might be defeated, in whole or in part, by the facts of the answer constituting a good defense which might be established on the trial. Upon the admission, they were permitted to open and conclude the case, assuming the burden of proof in the establishment of the defensive facts. After hearing the evidence and argument, the court peremptorily instructed a verdict for appellee, in accordance with which the jury returned a verdict for appellee, upon which judgment was entered. From this judgment the appeal is prosecuted.

Robertson & Firmin and Harris, Etheridge & Knight, for appellants. Gano, Gano & Gano, for appellee.

FINLEY, C. J. (after stating the facts).

The only question raised by assignment is whether the court was justified in peremptorily instructing a verdict for the plaintiff as to the 200 acres claimed to be the homestead of the defendants. There were issues of fact raised by the pleadings, and the correct determination of the question depends upon the state of the evidence adduced upon the trial. If the evidence was all one way or so conclusive that reasonable minds could not differ as to its effect the judge had the right to instruct the verdict. Evidence which is merely sufficient to create a surmise...