Stafford v. Stafford

• Decision Date: 10 November 1902
• Parties: STAFFORD v. STAFFORD.
• Court: Texas Supreme Court

70 S.W. 75

STAFFORD v. STAFFORD.

Supreme Court of Texas.

November 10, 1902.

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

Answers to questions certified by the court of civil appeals for the First district to the supreme court in an action by B. F. Stafford against R. E. Stafford. Questions answered in favor of plaintiff's contentions.

W. L. Adkins, for appellant. M. H. Townsend and Denman, Franklin & McGown, for appellee.

BROWN, J.

The court of civil appeals for the First district has certified to this court the following statement and questions:

"This suit was brought by B. F. Stafford for the recovery of an undivided interest in certain lands and for partition, on allegations which, for the purposes of this certificate, may be stated in substance as follows: He averred: That on and prior to the 3d day of December, 1889, he and R. E. Stafford, the husband of appellee, were the joint and equal owners of certain lands described in the petition. That one Carlton, having a judgment against appellant for $968.03, had his (appellant's) interest in the lands seized under execution, and advertised to be sold by the sheriff on the 3d day of December, 1889. That prior to the sale he had arranged with R. E. Stafford to lend him the money to pay off the judgment and prevent the sale, taking a mortgage on the land as security; but the latter failed to draw up the papers, so on the day of sale it was agreed that R. E. Stafford should attend the sale, buy in the land for appellant, paying for it with the money agreed to be loaned, taking the deed from the sheriff in his (R. E. Stafford's) own name, but simply for the purpose of a mortgage to secure the loan. That, in accordance with this agreement, R. E. Stafford attended the sale, bid in the property, taking the deed to himself, and reported to appellant that he had bid in the property for $1,000, which would slightly exceed the judgment, and that appellant should get the overplus from the sheriff, so that the debt would be an even $1,000, which could be repaid when they had a settlement of their mutual accounts growing out of a course of dealing between them. That on the 7th of July, 1890, and before such settlement was had, R. E. Stafford died, leaving appellee his sole devisee. That suit by appellant became necessary to compel a settlement of the mutual accounts between him and his deceased brother, which suit was filed on the 3d day of March, 1894, against his widow, the appellee, and settlement was finally had by compromise in 1899. This suit had no reference to appellant's claim to the land. That during his life R. E. Stafford set up no claim to the land, but at all times admitted appellant's title, and that appellee never set up any claim to the land until about three years before the filing of this suit. It was further alleged by appellant that the land in question had been purchased by him and his brother from the state, and that certain payments of purchase money had been made by his deceased brother and by the appellee after his death, on the joint account of himself and them, and he tenders all he may owe of such...