Stacy v. Henke & Pillot

• Decision Date: 14 May 1903
• Citation: 74 S.W. 925
• Parties: STACY v. HENKE & PILLOT.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

74 S.W. 925

STACY v. HENKE & PILLOT.^*

Court of Civil Appeals of Texas.

May 14, 1903.

Appeal from District Court, Liberty County; L. B. Hightower, Judge.

Trespass to try title by William Stacy against Henke & Pillot. From a judgment for defendants, plaintiff appeals. Reversed and rendered.

J. D. Martin, W. L. Douglass, M. D. Rayburn, and Greer & Minor, for appellant. A. C. Bullitt, for appellees.

GILL, J.

S. Liken, of Liberty county, being indebted to the firm of Henke & Pillot, of Houston, Tex., agreed to secure the same by a deed of trust upon certain lands claimed by him. The attorney of Henke & Pillot prepared the deed of trust, and forwarded it by mail to Liken for execution. It was intended that the tract of land known in this litigation as the "Woodbury Tract," situated in Liberty county, should be included in the deed of trust, but the attorney who prepared the instrument did not have the description. So in the letter which accompanied the paper to Liken he was requested to insert the description, execute and acknowledge the paper, and forward it to Henke & Pillot. Liken executed the paper on April 2, 1895, and acknowledged it before a notary before the Woodbury tract was inserted. This was done because at that date he did not have the description. Two or three days later he procured the description, inserted it, and, without reacknowledgment or notice to the notary, forwarded it to Henke & Pillot. The latter, with knowledge that the description had been inserted, subsequent to acknowledgment, accepted the instrument, and placed it of record on April 9, 1875. Prior to this transaction between Liken and Henke & Pillot, the Opperman heirs had sued Liken for the Woodbury tract of land, and the suit was then pending and undisposed of in the district court of Liberty county, Tex. On the 6th day of September, 1895, Liken, having been advised by his attorneys that the better title was in the Opperman heirs, concluded to terminate the litigation by a purchase of their title. In pursuance of this purpose the sum of $1,400 was agreed on as the price to be paid. In view, however, of the difficulty and delay involved in procuring a deed from the minors, it was finally arranged that Liken, on payment of the agreed sum, should take judgment for the land. Liken did not have the necessary funds. So he induced Stacy to take the bargain off his hands. This Stacy agreed to do, and for convenience it was arranged that Liken should take judgment in his own name, but in fact for the use of Stacy, and thereafter deed the land to Stacy. The money was paid by Stacy, and the judgment taken as agreed on the date last above named; but the land was never deeded to Stacy, as Liken soon thereafter fell ill and died. In inducing Stacy to buy the Opperman title, Liken assured him that the land was unincumbered, and he parted with his money without actual notice of the Henke & Pillot deed of trust. In the course of the administration of the Liken estate, the laud was inventoried as the property of the estate; and Henke & Pillot, without notice of the interest of Stacy, applied to the probate court to foreclose their deed of trust, and to sell the lands including the Woodbury tract for its satisfaction. This was...