Wallace v. Berry

• Decision Date: 12 February 1892
• Citation: 18 S.W. 595
• Parties: WALLACE v. BERRY.
• Court: Texas Supreme Court

18 S.W. 595

WALLACE v. BERRY.

Supreme Court of Texas.

February 12, 1892.

Error from district court, Dallas county.

Trespass by J. D. Berry, administrator, against T. F. Wallace, to try title. From a judgment for plaintiff, defendant brings error. Reversed.

Bassett, Seay & Muse, for plaintiff in error. H. G. Robertson, for defendant in error.

STAYTON, C. J.

This is an action of trespass to try title, brought by Mrs. Ray, who died pending the litigation; and it was prosecuted to final judgment by defendant in error as administrator of her estate. It was admitted that John Lee was the common source of title, and plaintiff in error claims through a sale regularly made in the course of the administration of Lee's estate, and Mrs. Ray claims through a deed made by John Lee several years before his death, which, though in form an absolute deed, was claimed by defendant to have been intended only as a mortgage; and this was the main issue in the case.

The court gave the following charge: "The only issue of fact presented for your consideration in this case is, was the deed made by Lee to Thurmond & Ray intended, between the parties, to be a mortgage? This deed being absolute on its face, it is presumed to express the true intention and transaction between the parties. The defendant averring that this deed was really intended to be a mortgage, the law devolves upon him the burden of proving clearly and satisfactorily to your minds, by evidence, the fact that such was the case. If he has done so, then you should find for the defendant. If he has failed to do so, then you should find for the plaintiff." This charge exacted of the defendant a higher degree of evidence or proof than the law requires, even in cases of this character. Prather v. Wilkens, 68 Tex. 187, 4 S. W. Rep. 252; Wylie v. Posey, 71 Tex. 34, 9 S. W. Rep. 87; Sparks v. Dawson, 47 Tex. 138; Railway Co. v. Matula, 79 Tex. 577, 15 S. W. Rep. 573.

The admission that John Lee was common source of title did not relieve plaintiff of the burden of connecting himself with that title by proper evidence, (Tapp v. Corey, 64 Tex. 594;) and it is urged that this was not done, and that for this reason the court should have granted a new trial. In the petition and judgment the premises are described as follows. "Beginning at the N. E. corner of a certain 2-acre tract conveyed October 18, 1869, by M. Guillot, to Caver Willis and George Washington; thence S. with the E. line of said tract to its S. E. corner; thence W. with the S. line, and N. to the N. line, and E. to the beginning, so as to embrace in the rectangle thus cut off the E. end of said 2-acre tract, one-half acre of land." In the deed introduced by plaintiff from John Lee to Thurmond & Ray the premises are described as follows: "Lying north-west of the Houston & Texas Central Railway, in the city and county of Dallas, in the state of Texas, it being the same land deeded to Richard Watkins by Carver Willis on the 7th day of May, 1873, in Book 1, on page 110, and deeded to me by Richard Watkins on the 11th day of June, 1873, this deed recorded on the 16th day of June, 1873, in Book 1, page 166, Record of Dallas County, Texas, to which records, for specific description, reference is hereby made." The records referred to were not introduced. The description in the deed from Thurmond to Ray is similar to that in the deed of Lee to Thurmond & Ray, adding a reference to the deed from Watkins to Lee and from Lee to Thurmond & Ray; no other description of the premises being given. In the deed from H. L. Ray to Mrs. Rena Ray the premises are described as lying in Freedmantown; being the same deeded to J. M. Thurmond and H. L. Ray by Lee on the 19th of October, 1874. If the records referred to in the deed from Lee to Thurmond & Ray, and in the deed from Thurmond to Ray, had been introduced, it may be that it would have appeared that Ray acquired whatever right Lee once had in the land described in the petition; but this was not done. The...