Webster v. Mann

• Decision Date: 23 January 1880
• Citation: 52 Tex. 416
• Parties: BETSY WEBSTER AND BAKER WILLIAMS v. GEORGE E. MANN.
• Court: Texas Supreme Court

52 Tex. 416

BETSY WEBSTER AND BAKER WILLIAMS

v.GEORGE E. MANN.

Supreme Court of Texas.

Jan. 23, 1880.

APPEAL from Galveston. Tried below before the Hon. William H. Stewart.

Suit in trespass to try title and sequestration, brought by George Mann, appellee, November 3, 1877, for lots 8, 9, and 35 feet of 10, in block 255, in the city of Galveston, against appellants, Webster and Williams. Appellants answered jointly by general demurrer, general denial, and plea of not guilty. Cause tried by the court without a jury. Judgment for appellee for possession.

Plaintiffs introduced a general warranty deed from defendant Betsy Webster to one Thomas Baker, for five lots, including those sued for, reciting as its consideration that grantee had taken care of grantor since 1863, for love and affection, and recognizing him as her adopted son; this deed executed and recorded August 5, 1869. Also, general warranty deed from Thomas Baker to plaintiff, executed and recorded January 19, 1876, for four of the lots in the deed of August 5, 1869, and recites payment in full of $3,000, the expressed consideration.

Plaintiff here rested his case.

The defendant Williams testified in his own behalf, and stated that he was only on the lots in suit for the purpose of taking care of Betsy Webster.

The defendant Betsy Webster testified by deposition, denying that she executed the deed of August 5, 1869, to Thomas Baker for five lots, part of which are sued for in this suit; that she signed said instrument without knowing its contents; that she could not read, and it was not read to her; that she would not have signed it had she known that it was a deed for this property; that she was induced to sign by being told, and believing, that it was a court paper in a pending suit. She further testified that the consideration for the deed of August 5, 1869, was that Baker should take care of her for her lifetime, and that he had deserted her in the fall of 1877; that she had been in possession of the lots sued for before and since the deed of August 5, 1869; that Baker had ill-treated her after she executed the deed, by keeping her confined on the premises in suit, in not allowing others to have access to her, and in not attending to her bodily wants; (the cross-examination is largely to matters and things running through a period of many years, as to her memory and understanding;) that she did not know of Mann's purchase till he had built his house. The defendant introduced a number of witnesses, who testified, with some contradiction, as to how Baker had kept her confined on the place, ill-treated her, and as to statements of Baker and Betsy Webster as to Baker being bound to take care of her, and that he was to have the lots in controversy only on her death. The plaintiff excepted to the admissibility of all this testimony.

Defendant Betsy Webster put plaintiff on the stand, who testified that he paid Baker the $3,000 expressed as consideration in the deed to plaintiff for the lots sued for; that he also gave Baker a lease for the term of the life of Betsy Webster for the lots in suit.

The defendant demanded the lease and put it in evidence. Its expressed consideration is, that “Tom Baker is to cultivate and keep up the ground as a garden.” It is not assignable, and ends whenever lessee fails to cultivate the garden as obligated to do.

Plaintiff testified, further, that Colonel Flournoy, hearing plaintiff inquire as to price of other property, told him these lots were for sale and Baker was coming to his office next day; that plaintiff met Baker at Flournoy's office, and offered him $6,000 for four of the five lots embraced in deed of August 5, 1869, from Betsy Webster to Thomas Baker; that Baker would not sell, except on condition that possession was not to be given until she died, stating that as she had given them to him, he would not move her from the lots; that plaintiff purchased four lots on the terms of the $3,000 cash and the lease to Baker for three of the lots, subject to terms of lease as to services of Baker to the property; that he did not know and had never seen Mrs. Webster or Thomas Baker when Flournoy told him these lots were for sale; that he went to see the property and had a long conversation with her; that Baker cautioned him not to disturb her by letting her know that he intended selling.

Plaintiff excepted to admissibility of all this testimony.

Mrs. Webster further put in evidence a power of attorney from herself to Thomas Baker, dated and acknowledged May 22, 1871, recorded April 10, 1872, which empowered Baker to sell any and all her real estate in the city of Galveston.

Also a deed from Betsy Webster to Thomas Baker, dated April 24, 1872, and recorded December 7, 1872, of all her interest and half-interest in a large number of Galveston lots, the expressed consideration being his devotion to her care and his promise to continue to support her.

Defendant then rested her case.

In rebuttal, plaintiff introduced deposition, taken in court by the judge before whom the trial was had, of Brad. Hancock, a subscribing witness to the deed of August 5, 1869, which had been attacked by Betsy Webster's testimony. He testified that he was working in the clerk's office of the County Court, in Galveston, on date of the deed; that Betsy Webster came there, seemingly for the purpose of executing the instrument; that she requested that the deed be read to her, stating that she had been cheated by her agents in the signing of other deeds; that witness read this deed to her very carefully, and she said that it was just what she wanted; that Tom Baker had been a good son to her, and would take care of her, and she wanted him to have these lots; that witness signed the deed as a witness, at request of Betsy Webster, as did the other subscribing witness, and the deed was acknowledged by Betsy and left for record; that Mrs. Webster was old and nearly blind, and said she did not expect to live long; that Betsy was of sound mind; that the plaintiff, G. E. Mann, had some year or two before brought this deed to him and asked the circumstances as to Mrs. Webster signing the deed, and whether there was any question as to her being then of sound mind, as he, plaintiff, was on a trade for the place; that he stated the facts to plaintiff.

Plaintiff introduced George Flournoy as witness, who testified that Tom Baker had been in possession of the premises since he knew the place, since about 1869 or 1870; that Mrs. Webster had several times consulted him, not as an attorney, but as a friend, as to having conveyed the property in suit to Tom Baker, and seemed to want to draw his opinion as to her getting out of what she had done; that he told her she had given Tom the property and it was no use talking about it; that Mrs. Webster seemed to fully recognize that she had given Tom all her property, and she perfectly understood that the house and place where she lived were Tom Baker's; that this was all before plaintiff bought; that Mrs. Webster was of good mind, and rather smart for one of her age; told plaintiff that title was good in Tom.

Plaintiff also testified, in his own behalf, that he had not the slightest suspicion as to the validity of title of Tom Baker, from whom he bought; that he bought for a home; that Tom's treatment of Mrs. Webster was kind and considerate, and such as to elevate Tom in his estimation; that he had the best opportunities of knowing, as he had built on the lot that he retained of those purchased from Tom, and lived on it.

All the witnesses testified that Thomas Baker controlled and managed the place. It was proven by plaintiff that Baker paid taxes from 1869 to the time of purchase by plaintiff, who has since paid them.

Plaintiff testified that Thomas Baker held the lots in suit since January, 1876, as his tenant had forfeited the lease by abandonment of the premises.

The motion for new trial of appellants was, among other grounds, because Baker had not paid the consideration to Betsy for said deed of August 5, 1869, and because the evidence showed that said deed was on an unexecuted trust that Thomas Baker would take care of Mrs. Webster.

Plaintiff testified that he offered to allow Mrs. Webster to remain as his tenant, and that she refused; that he then told Baker Williams that he would give him a lease on same terms as Tom's lease, if he would take care of Betsy, and he refused.

Wharton Branch and Fred Barnard, for appellants.

I. The plaintiff must show title in himself by regular transfer from the government, or a source from which all parties deraign title, and the present right of possession, to entitle him to a judgment. (Act of September 28, 1871, Gen. Laws, 2d Sess., 12th Leg., pp. 3, 4; Hooper v. Hall, 35 Tex., 84;Keys v. Mason, 44 Tex., 142.)

II. The superior title remains in the vendor until the purchasemoney be paid. (Peters v. Clements, 46 Tex., 122;Gibson v. Fifer, 21 Tex., 261;Mann v. Falcon, 25 Tex., 274;Baumgarten v. Smith, 37 Tex., 440;Walker v. Emerson, 20 Tex., 711;Dunlap v. Wright, 11 Tex., 604;Baker v. Ramey, 27 Tex., 59;Brown v. Christie, 35 Tex., 690; The Howards v. Davis, 6 Tex., 182.)

III. The deed from Baker to Mann and the lease from Mann to Baker constituted one contract, and the lease was part of the purchase-money from Mann to Thomas Baker, and being for the benefit of defendant, Betsy Webster, the plaintiff was not entitled to judgment for the possession of said property until the death of Betsy Webster. (Dunlap v. Wright, 11 Tex., 602;Taylor v. Hudgins, 42 Tex., 246;Caldwell v. Fraim, 32 Tex., 326;Eborn v. Cannon's Administrators, 32 Tex., 245; Story's Eq. Jur., secs. 1197, 1198.)

IV. A purchaser who has either actual or constructive notice, or information which would put a reasonable man on inquiry of an outstanding title or equity, is not an innocent purchaser without notice, and the plea of innocent purchaser does not apply except to a defendant in possession. (...