Stockton v. Jones

• Decision Date: 14 April 1915
• Docket Number: (No. 5472.)
• Citation: 175 S.W. 859
• Parties: STOCKTON v. JONES et al.
• Court: Texas Court of Appeals

Page 859

175 S.W. 859

STOCKTON v. JONES et al.

(No. 5472.)

Court of Civil Appeals of Texas. San Antonio.

April 14, 1915.

Appeal from District Court, Wharton County; Sam'l J. Styles, Judge.

Action by H. P. Stockton against W. D. Jones and others. From a judgment for defendants, plaintiff appeals. Affirmed.

H. A. Cline, of Wharton, and A. D. Dyers, of Temple, for appellant. Cappel & Rowan, of El Campo, for appellees.

CARL, J.

On the 4th day of June, 1913, W. F. O'Briant and his wife, May A. O'Briant, executed and delivered to H. P. Stockton a deed, wherein they purported to convey to him the west one-half of farm block No. 17 in the town of Louise in Wharton county; the consideration therein expressed being $412.06, which is stated to be a cash consideration. This deed was acknowledged before R. F. Hudson, a notary public of Wharton county, on the same day the deed bears date, and was filed for record on the day of its execution. On the same day this deed was executed, W. F. O'Briant and Stockton entered into an agreement whereby the former rented the property from the latter, from June 4, 1913, until the 1st day of January, 1914, for an expressed consideration of $35 cash paid. Subsequent thereto, O'Briant and his wife went to the country, but left their furniture in the house, and the defendant W. D. Jones was left in charge of the property for them. When Stockton demanded possession of the property, it was refused, and he thereupon filed suit for the property in trespass to try title, naming W. D. Jones and W. F. O'Briant as defendants. O'Briant pleaded not guilty, and in a plea in intervention he and his wife, May A. O'Briant, set up the fact that the property was their homestead before, at the time, and ever since the execution of said deed; that said deed was in fact intended to be a mortgage to secure something over $400 which O'Briant owed Stockton; and that it was agreed and understood at the time of the execution and delivery of said deed that it was merely to secure said debt and that when said debt was paid Stockton would reconvey the property. It is also charged that Stockton agreed to withhold the deed from the record. Mrs. O'Briant alleges that she was not examined separate and apart from her husband at the time the deed was executed, but that he was present all the time; that Hudson, the notary, did not read the deed to her; and that her husband had told her that it was only a mortgage. So that at the time the same was executed sh...