Smith v. Eckford

• Citation: 18 S.W. 210
• Parties: SMITH v. ECKFORD.
• Decision Date: 01 December 1891
• Court: Supreme Court of Texas

18 S.W. 210

SMITH v. ECKFORD.

Supreme Court of Texas.

December 1, 1891.

Commissioners' decision. Section A. Appeal from district court, Bexar county; GEORGE H. NOONAN, Judge.

Action to recover personal property, by John D. Smith against John Eckford. Verdict and judgment for defendant. Plaintiff appeals. Affirmed.

Wm. Anbrey, for appellant. L. N. Walthall, J. M. Eckford, and S. M. Ellis, for appellee.

MARR, J.

On the 15th day of November, 1884, appellant instituted this suit to recover of appellee certain personal property, consisting of an abstract of land titles of Bexar county, Tex., with its appurtenances, of which he alleged the appellee wrongfully withheld the possession. He also prayed for the reasonable rental value of the same. Defendant in his answer, filed December 15, 1885, pleaded in defense that on or about November 21, 1881, the appellant, by special agreement with appellee, bought the property sued for at the sheriff's sale, made by virtue of a writ of venditioni exponas issued against appellee for the nominal sum of $300, and took a conveyance in his own name and in trust for appellee, the appellant agreeing with appellee to reconvey the property to him whenever requested by appellee so to do; also, that one Mrs. Adams, at the time said sale occurred, had an interest in the property and that, to procure a conveyance of said interest, appellant paid to her $900, and appellee conveyed to her lands valued at $500; also, that appellee had never rented the property from appellant, or agreed to pay him any rent for the use of the same, and that from the 21st day of November, 1881, up to the filing of the answer, appellant had held the title to the property in trust for appellee; also, that in order to reimburse appellant for the several sums of money advanced by appellant to appellee in connection with the property, and in full payment of other sums owed at the time by appellee to appellant, appellee caused D. & A. Oppenheimer, of San Antonio, Tex., to execute and deliver to appellant deeds dated, respectively, August 18, 1883, and December 1, 1883, conveying to appellant thereby a one-half interest in 4,455 acres of land, and that these lands were, at the dates of said conveyances, reasonably worth $2 per acre, making $4,455, "which appellant owes appellee for his said interest in said lands;" also, that he (appellee) held and claimed the property under the statute of limitation of two years; also, that he (appellee) had and claimed a number of offsets against appellant's claim for rents, amounting to $7,830; also, that said order of sale issued in a suit in the district court of Bexar county, in which appellant was plaintiff, and appellee defendant. Appellee prayed for the cancellation of the sheriff's deed in question, and for judgment over on his counter-claim. Appellant by his supplemental petition, filed November 5, 1886, denied the existence of the trust alleged, and averred that, if such trust ever existed, the conditions upon which the same rested had never been complied with by appellee. Appellee by a trial amendment, filed April 9, 1888, alleged that he had paid to appellant, through said D. & A. Oppenheimer, on the 20th day of July, 1883, $995.43, and prayed for a judgment for same." Appellee also pleaded (and the facts are shown by the proof) that Mrs. Adams is the surviving wife and executrix of W. C. Adams, deceased; that the firm of John Eckford & Co. was composed of the appellee and said W. C. Adams, in his life-time; that one James M. Eckford also held a mortgage upon the property in question for the amount of $837.05, and that he intervened in the suit by the appellant against John Eckford & Co., (in which the venditioni exponas above mentioned was issued,) and set up his claim and mortgage; and that in that suit judgment was rendered in his favor for that amount, and for a foreclosure of the mortgage, and in favor of appellant "for $185.49 in open account," and "for $500, the amount of the Hardesty note," and for a foreclosure of the mortgage on the property in dispute, given to secure these sums; and that Mrs. Adams had duly purchased and acquired the interest of James M. Eckford in said judgment, (in addition to her interest in the property derived from her deceased husband,) before the appellant purchased said property as aforesaid at the sale under the venditioni exponas; and that in order to secure to the appellee this interest of Mrs. Adams in the property, and by agreement with appellant, the appellee, before the deed was made to the appellant, "compromised matters" with her; and that he and appellant made the payments aforesaid for that purpose; and, in effect, that thus he (appellee) acquired her interest for his own benefit, subject, however, to the reimbursement of the appellant. Upon the 12th day of April, 1888, the case was tried before a jury, and resulted in a verdict and judgment in favor of the defendant, Eckford, and that he be dismissed with his costs, and that the plaintiff take nothing by the suit. The latter, John D. Smith, has appealed, and presents 23 elaborate assignments of error, all of which we are required to notice, as the judgment, in our opinion, must be affirmed.

The appellant objected, in the court below, to the admission of about all of the testimony of Mrs. Adams and of W. L. Thompson on the same subject, by objections urged to separate portions thereof, and practically upon the same grounds. As this testimony is set out in the various assignments, and is important in its bearing upon one of the main issues in the case, we will insert the assignments as made by the appellant, and in his own order. Assignments Nos. 1, 7, 8, 9, and 10 are as follows: "(1) The court erred in admitting, over the objection of plaintiff, the following testimony of Mrs. Mary A. Adams, to-wit: `On the same morning of the sale, and before the said sale took place, there was an agreement between me and the said John D. Smith about buying at said sale the said abstract of land titles. On the morning of the said sale of the abstract of land titles, the said John D. Smith agreed with me that he would buy in the said abstract of land titles at the said sheriff's sale, and that he would not run up the bids on the same more than $1,800. He agreed with me that when he should buy in the said abstract at said sale, that he would do so for himself and myself jointly, and that I should be an equal joint owner with himself of the said abstract of land titles of said John Eckford & Co. so bought in by him at said sheriff's sale. The said agreement made by John D. Smith with me was made on Commerce street, in the city of San Antonio.'" "(7) The court erred in admitting, over the objection of plaintiff, the following testimony of the witness W. L. Thompson: `As the attorney of Mrs. M. A. Adams, I made an agreement with John D. Smith to buy in the property for himself and Mrs. M. A. Adams. They were to bid in the property, each paying one-half of the purchase money, and each should own an undivided one-half interest in the property.'" No. 8: "The court erred in admitting, over the objection of plaintiff, the testimony of the witness Thompson, as follows: `I had several conversations with John D. Smith in regard to the purchase of the property for the joint benefit of himself and Mrs. M. A. Adams. At one time the agreement was talked over and agreed upon in the presence of Mrs. M. A. Adams at the steps leading up to my office on Commerce street. It was agreed that Smith should bid in the property at the sale for the joint benefit of both parties; Mrs. Adams agreeing to this at the time. I was present at the time of sale. John D. Smith bid in the property, and the deputy-sheriff asked who should he deed the property to. Mr. James, the attorney for Smith, told him to make the deed to John D. Smith, when I interposed, and said that the bid was for the joint benefit of John D. Smith and Mrs. M. A. Adams; that that was the agreement,' — because there was no allegation to support the said testimony; because the same was immaterial, and an attempt to vary by parol the sheriff's deed to Smith for the property sued for." Assignment No. 9: "The court erred in admitting, over the objection of the plaintiff, that portion of the testimony of W. L. Thompson reading as follows: `I had repeated conversations with John D. Smith prior to the sale, and, as I stated before, there was a distinct and positive agreement between us that he would bid in the property for the joint benefit of himself and Mrs. Mary A. Adams; that, when he wanted the deed made to himself, I protested on behalf of Mrs. Adams, and the sheriff refused to make the deed until John D. Smith made satisfactory arrangement with Mrs. Adams, by buying out her interest. John Eckford came to me with a proposition of settlement, and, after consultation with Mrs. Adams, I accepted the offer made. John D. Smith paid $900, and John Eckford made a deed to Mrs. Adams for his interest in 1,280 acres in Tom Green county as the purchase of her interest in the abstract office.'" Assignment No. 10: "The court erred in admitting, over the objection of the plaintiff, that portion of the testimony of the witness Mrs. Adams as follows: `When John D. Smith made the agreement with me that he would buy in the abstract for himself and myself, it was known to him that I had bought out the interest in the judgment of James M. Eckford. At the said sheriff's sale the agreement made by John D. Smith was not carried out, in that the said John D. Smith did not buy in the abstract for me and himself, and instead thereof he claimed the bid for himself alone, and wanted the bill of sale made to himself. The said agreement was not carried out, because the said John D. Smith insisted on having the bill of sale made to him alone, and not to him and myself. I do not remember that I heard John D. Smith say anything on the subject,' — because said testimony is...