Wiseman v. Baylor

• Decision Date: 08 November 1887
• Citation: 6 S.W. 743
• Parties: WISEMAN v. BAYLOR <I>et al.</I>
• Court: Texas Supreme Court

Page 743

6 S.W. 743

WISEMAN v. BAYLOR et al.

Supreme Court of Texas.

November 8, 1887.

Appeal from district court, Wilson county.

Action by Mary A. Baylor and husband against W. R. Wiseman, for the balance of the consideration received by defendant for certain lands. Judgment for plaintiffs, and defendant appeals.

W. E. Goodrich, for appellant. Lawhon & Brown, for appellees.

WILLIE, C. J.

The appellee, W. R. Baylor, was indebted to Wiseman upon a note for $300, secured by a deed of trust executed by Baylor and his wife upon six lots of ground in the city of San Antonio, which were the separate property of Mrs. Baylor. On February 20, 1880, Baylor and wife conveyed this property to Wiseman, by a deed absolute on its face; and about the twenty-fourth of January, 1884, the latter sold it for $2,800 in cash. This suit was brought by Baylor and wife to recover of Wiseman said sum of money, less the amount of principal and interest due upon the note, and $80 taxes admitted to have been paid by Wiseman upon the land. The petition charged that, although the deed appeared absolute upon its face, it was intended and understood between the parties thereto to be a deed in trust for the purpose of securing the debt due from W. R. Baylor to the appellant; that the lots were worth much more than the debt, and the property fast increasing in value; and that they informed appellant that they did not wish to sell or have them sold at that time. It was further alleged that the appellant promised that if the appellees would vest the legal title in him, he could hold the said lots until in his opinion they had reached their highest market value, when he could sell them, and, after deducting his debt and interest and such taxes as he should have paid on the land, would pay the balance of the proceeds of the sale over to the appellees. Confiding in this promise, they made the deed; but in violation of their trust and confidence in him, the appellant refused to pay over any portion of such proceeds. The defendant below demurred to the petition, denied its allegations, averred that before the date of the deed the payment of the note had been secured by a deed of trust upon the lots, that the plaintiffs had constantly defaulted in payment of interest, and, being unable to pay either principal or interest, had proposed to convey the land in payment of the debt, which offer he accepted, and the deed was made as an absolute conveyance, without any trusts or promises as to a sale of the land, and a payment of any part of the proceeds to the appellees. Appellant also alleged that at the date of the sale the lots were worth no more than he paid for them. The court below overruled the appellant's demurrer, and the result of the trial was a verdict and judgment for appellees for $2,034.88, from which judgment this appeal is prosecuted.

There was a conflict of evidence as to what transpired at and before the execution of the deed; the appellees and their daughter, as witnesses, sustaining the allegations of the petition in that respect, and the defendant testifying to the truth of his answer. There was also a conflict as to the value of the lots at the date of the deed, the evidence varying from $50 to $200 each. The charge of the court was to the effect that if the appellees were induced to make the deed by promises given by the appellant at the time, such as were set out in the...