Wells v. Hilburn

• Decision Date: 25 November 1936
• Docket Number: No. 1635-6687.,1635-6687.
• Citation: 98 S.W.2d 177
• Parties: WELLS et al. v. HILBURN et al.
• Court: Texas Supreme Court

98 S.W.2d 177

WELLS et al. v. HILBURN et al.

No. 1635-6687.

Commission of Appeals of Texas, Section B.

November 25, 1936.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Trespass to try title by Viola Wells and husband and others against Susie Hilburn and others. To review a judgment of the Court of Civil Appeals [64 S.W.(2d) 1009] modifying a judgment of the district court, the named plaintiffs bring error.

Judgment of Court of Civil Appeals and district court reversed and remanded as to named plaintiffs, with directions.

Vinson, Elkins, Sweeton & Weems and Baker, Botts, Andrews & Wharton, all of Houston, S. H. German, of Austin, Y. D. Mathes and George E. B. Peddy, both of Houston, and Margaret Clark, of Dallas, for plaintiffs in error.

Ashworth, Crisp & Ashworth, of Kaufman, Bramlette & Meredith, and Jack E. Price, all of Longview, Chauncey & Chauncey, of Jefferson, Wm. Hodges, of Texarkana, I. C. Underwood, of Marshall, and John V. Beveridge, Yancey, Spillers & Fist, and Bailey E. Bell, all of Tulsa, Okl., for defendants in error.

RYAN, Commissioner.

The questions involved are whether certain deeds of conveyance to real estate, coupled with an agreement by the grantee to reconvey upon payment by the grantors to the grantee of certain sums of money, under the particular facts in this case, constitute a conditional sale or a mortgage, and, if a mortgage, whether the mortgagors are barred by their laches and the statute of limitations from asserting any claim to the property in question.

This is an action in trespass to try title begun by Maceo Johns, his sister, Viola Wells, joined by her husband, Sidney Wells, and parties claiming interests under them, against the heirs of Susie Hilburn, deceased, and parties claiming interests under them, for the recovery of an undivided one-half interest in two tracts of land in Gregg county, containing, in the aggregate, 281 acres of land. In the trial court, defendants prevailed, and all the plaintiffs appealed. The Court of Civil Appeals affirmed the judgment as to Viola Wells and those claiming under her, but as to Maceo Johns and those claiming under him the judgment of the trial court was reversed and judgment rendered in their favor. Johns v. Hilburn, 64 S.W.(2d) 1009.

Upon rehearing the Court of Civil Appeals modified its previous judgment to the extent of ordering that Maceo Johns and those claiming under him should pay to the appellees who are claiming under Susie Hilburn the sum of $800 and interest from October 20, 1920, at the rate of 10 per cent. per annum. It is stated in counsel's brief that this was subsequently adjusted.

There was no application for writ of error by those claiming under Maceo Johns and his vendees, wherefore this court has not acquired jurisdiction of that branch of the case, and the judgment of the Court of Civil Appeals has become final.

None of the parties in the Court of Civil Appeals, other than Viola Wells and Sidney Wells, her husband, made application for writ of error, and the case is in this court upon the granted application by said Viola Wells and husband; we are therefore to determine only the controversy between them and the appellees below, defendants in error here.

All parties trace title from John Hilburn, who died December 28, 1918, his first wife, Cumi Hilburn, having predeceased him. Of this marriage there was issue two daughters, Clara, who married one Johns, and Allie, who married one Jenkins.

Both daughters died before the death of John Hilburn. Clara Johns left as her sole heirs two children, Maceo Johns and Viola Wells, wife of Sidney Wells, the last two being plaintiffs in error here. Allie Jenkins left as her sole heirs three children, Christine, Jewel, and Felix Jenkins. The Jenkins heirs are not parties to this litigation.

In the year 1908 John Hilburn married his second wife, Susie Barnes, and she moved into his home on the land in controversy and continued to live with him until his death in 1918, and thereafter continued to live there until her death in July, 1929.

John Hilburn died intestate and left as his sole heirs his widow, Susie Hilburn, and the five grandchildren above named, being the three Jenkins children, who are not involved in this controversy, and the two Johns children: Maceo, as to whose interest final judgment has been entered as above stated, and Viola Wells, who, with her husband, Sidney Wells, is plaintiff in error herein.

By partition decree entered in the district court of Gregg county, Tex., on May 4, 1919, the 281-acre homestead tract of John Hilburn, which is the land in controversy herein, was awarded to Susie Hilburn during her lifetime, with the remainder to the five grandchildren above named, one-half thereof to the Jenkins children and one-half thereof to Maceo Johns and Viola Wells.

On October 18, 1920, while Susie Hilburn was still living upon the land in which she had a life estate and homestead interest, Maceo Johns, by warranty deed, conveyed to her his undivided one-fourth interest, in consideration of two vendor's lien notes, each in the sum of $400, payable on or before one and two years from date, respectively. Simultaneously therewith an agreement was executed by Maceo Johns and Susie Hilburn, in effect that said deed was intended as a mortgage to enable Maceo to secure a loan upon said property with Susie as surety for him. The following day said notes were assigned by Maceo to the Guaranty State Bank of Kilgore, Tex., and were paid at or before their maturity dates.

On January 4, 1921, while Susie Hilburn was still living upon the land, Viola Wells (and her husband), by warranty deed, conveyed to said Susie Hilburn her undivided one-fourth interest, in consideration of two vendor's lien notes, each in the sum of $450, due November 19, 1921, and November 19, 1922, respectively. Simultaneously therewith, Susie Hilburn executed the following instrument:

"The State of Texas

"County of Gregg

"Whereas, Viola Wells and...