Shelp v. Decker

• Citation: 262 S.W. 807
• Decision Date: 28 May 1924
• Docket Number: (No. 1122.)
• Parties: SHELP et al. v. DECKER.
• Court: Court of Appeals of Texas

262 S.W. 807

SHELP et al. v. DECKER.

(No. 1122.)

Court of Civil Appeals of Texas. Beaumont.

May 28, 1924.

Rehearing Denied June 4, 1924.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Suit by H. R. Decker against Elizabeth M. Shelp and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Garrison & Watson, of Houston, for appellants.

Carothers & Brown, of Houston, for appellee.

WALKER, J.

This suit was instituted in the form of trespass to try title by appellee against appellants to recover the title and possession of a certain lot in the city of Houston, Harris county, Tex. Appellants answered by a plea of not guilty, and specially that the deeds from them to appellee, upon which his title to the land rested, though in form an absolute deed, were executed under an agreement that they were to constitute a mortgage. Appellee was awarded the lot in controversy under a verdict instructed by the court.

Appellee offered in evidence a warranty deed from Mrs. Elizabeth M. Shelp conveying to him the lot in controversy, dated the 1st day of June, 1920, reciting a consideration of $3,524. He also offered a deed from appellant W B. Shelp of the same date, conveying to him the same lot on a recited consideration of $1. Appellee rested his case on this evidence. Appellant W. B. Shelp then testified for the defendants as follows:

"My name is William B. Shelp. I am one of the defendants in this case. My mother's name is Elizabeth M. Shelp. She lives in Forest Hills, lot 55, and has been living there either six or seven years last November. My minor brother and myself are living with her. My father died in 1910. At the time this deed was executed by my mother to Mr. Decker, she was living with me in that house—the same place she has been living the last seven years. My mother had a deed to that property. At that time my mother did not have any other homestead other than that property there. At that time she was occupying that property and using it as a homestead."

All other evidence offered by appellants was excluded, to which action of the court due exception was taken. The bill of exception reflects that appellant W. B. Shelp would have testified, had the court received his evidence, to the following facts:

On the 1st day of June, 1920, a Mr. Sweeney held a deed of trust against the lot in controversy, to secure an indebtedness which on that date amounted to $3,524; that Sweeney had advertised the property for sale on that day and was proposing to sell it at 10 o'clock a. m.; that he and his mother for some time prior to that day had been negotiating with appellee to get him to take up and carry for them the Sweeney indebtedness, and that appellee had agreed with them in their negotiations to pay off the Sweeney indebtedness that appellee was very friendly with appellants and had been a guest in their home prior to June 1, 1920; for some reason appellee postponed from day to day the taking up of the Sweeney indebtedness; that on June 1, 1920, he again proposed to take up this indebtedness, and, to give him time to do so, the Sweeney sale was postponed from 10 o'clock a. m. until some hour in the afternoon. Thereupon on June 1, 1920, after the sale had been postponed, appellants executed, acknowledged, and delivered to appellee the following instrument:

"The State of Texas, County of Harris.

"This agreement between Elizabeth M. Shelp, a feme sole, party of the first part, and H. R. Decker, party of the second part, both parties being residents of Harris county, Tex., witnesseth:

"I. The party of the first part is indebted to J. J. Sweeney in the sum of thirty-five hundred and twenty-four ($3,524.00) dollars, the said amount being secured by a certain deed of trust given by W. B. Shelp and Elizabeth M. Shelp to E. R. Campbell, trustee, on August 5, 1912, recorded in the Mortgage Records of Harris County, Texas, vol. 102, page 309, and by such renewals of said instrument and lien as appear of record in Harris county, Tex., and the said property is about to be sold under foreclosure, this agreement is made in order to prevent the said property from being sacrificed at foreclosure sale, and to enable the party of the first part to realize a part of such profit as can be realized from the sale of the property covered by said deed of trust within the next ninety days.

"II. The party of the second part hereby agrees that he will pay off and satisfy the said deed of trust, and, in consideration therefor, the party of the first part hereby agrees that she will forthwith execute and deliver to the party of the second part a general warranty deed conveying to the party of the second part the property covered by the said deed of trust, to wit: `A certain tract or parcel of land lying and being situated in Harris county, Texas, and particularly described as follows, to wit: Lot number fifty-five (55) of what is known and platted as "Forest Hill," being a subdivision of a part of the Jacob Thomas one-fourth (1/4) league in Harris county, Texas, near the city of Houston, and being the same land conveyed to W. B. Shelp by the Vaun Dun Company by deed dated May 21, 1910, recorded in the Deed Records of Harris County, Texas, vol. 258, page 347.'

"III. It is agreed that for ninety days from this date the party of the first part shall have the exclusive right to find for the party of the second part a purchaser for the said land who will buy same for not less than five thousand ($5,000.00) dollars in cash, and, if such purchaser is so found, party of the second part hereby agrees that he will convey said land to the purchaser thus found, and will pay to the first party as compensation for finding such purchaser one-half (1/2) of the net amount received from the proceeds of such sale, after deducting therefrom the following amounts, to wit:

"(a) The sum of $3,524.00 with eight per cent. interest from this date until the consummation of such sale;

"(b) Any amount which is paid out by the party of the second part to keep the improvements on said property insured;

"(c) Any amounts paid out by second party in relieving said property of any other liens or charges against same; and,

"(d) Any expenses incurred by party of the second part with the consent of party of the first part, for repairs or betterments on said premises.

"IV. Party of the second part shall have the right to insure said property and to pay off any liens or charges against same.

"V. It is intended that the said deed shall vest the title to said property absolutely in the party of the second part, and the party of the first part shall have no title whatever to said property after the execution of the said deed. The only right which party of the first part shall have in connection with said property shall be the exclusive right to sell said property at any time within the next ninety days and to reap a profit from such sale, if one is made, as provided for in this agreement. If no sale is made within said ninety day period, then party of the first part shall have no further right, claim or interest in said property, or in the profits from any sale which may be made thereafter.

"Executed in duplicate this 1st day of June, A. D. 1920.

                                 "Elizabeth M. Shelp
                                    "Party of the First Part
                                 "H. R. Decker
                                    "Party of the Second Part."
                

We quote from the bill of exception the following additional testimony of W. B. Shelp as offered by appellants:

"Q. At any rate, that was the agreement that was executed at the time, and that was the agreement under which Mr. Decker advanced the money? A. That is the agreement we signed; yes, sir.

"Q. That agreement was explained to you and read over there in the office, was it not, Mr. Shelp? A. Yes, sir; and Mr. Decker there in your office that day assured my mother not to be afraid to sign the paper; he would never take advantage of her.

"Q. You had it explained to you that if you didn't exercise this option within the 90 days you would have no further title, did you not? A. No, sir; I had it explained to me that I would have my own sweet time to take care of it, and I never would be crowded, and Mr. Decker never did crowd me for over a year— a year and a half.

"Q. You said in your direct testimony that you had never paid any rent, and he has never demanded possession of the property. Isn't it a fact, Mr. Shelp, that Mr. Decker delegated Howard Smith and Roland Ring to make a settlement with you, and they asked you to deliver possession of the property? A. Yes, sir; they negotiated with me for a settlement, but the settlement...