91 S.W. 883 | Tex. App. | 1905
This suit was instituted by appellant against appellees William H. Bush, Francis T. Simmons and Mrs. Harriet B. Simmons, wife of said Francis T., as an ordinary action of trespass to try title to recover block number 60 in the Glidden and Sanborn addition to the town of Amarillo. The Simmonses answered by a general demurrer, general denial and plea of not guilty. William H. Bush disclaimed, and asked to be dismissed with his costs. Potter County intervened in the suit, and pleaded that plaintiff Sanborn had dedicated the property in question to the county for courthouse purposes, and further claimed under a conveyance as against the Simmonses. The county also pleaded a ratification by plaintiff of a deed of conveyance made by defendant Bush to defendant Harriet B. Simmons, the effect of which deed appellant seeks to overcome in his suit, to which plea appellant replied that the said ratification was the result of duress of property upon the part of said William H. Bush. There were also a large number of exceptions to the plea of intervention of the county, which we deem it unnecessary to recite.
Upon the trial of the case the district judge instructed the jury to return the following verdict, which was done: "We, the jury, find for the defendants as against the plaintiff, and we further find for the intervener, Potter County, as against both plaintiff and defendants, for the premises in controversy, and that the intervener holds the same by purchase from the defendants Simmons and wife under their transfer, to *25 wit, as alleged in its petition of intervention in this cause." From the judgment based upon this verdict this appeal has been perfected.
The ruling of the court upon appellant's motion to change the venue of the case ceases to be an issue in view of the summary instruction to find for the defendants. Appellant could not be prejudiced by such ruling if the instruction can be justified in the facts.
There was no error in overruling appellant's motion to take as confessed the ex parte interrogatories propounded to appellee, Mrs. Simmons. The certificate of the notary public, in the absence of any explanation upon the part of the witness, might require that the interrogatories be taken as confessed because of her refusal to appear before such officer and answer, but her testimony, subsequently taken, as well as that of other witnesses, including her attorney, who advised her in the premises, indicates clearly that her refusal was not contumacious or deliberate. Mr. Cratty, her attorney, who resided in Chicago, where Mrs. Simmons also resided, testified to the effect that, upon learning that the parties had been subpoenaed to appear before an officer to answer interrogatories in the suit, he began an investigation to ascertain the character of depositions sought, and the authority of the officer to take them, and to this end sought out the notary who had in charge the interrogatories, but that such notary refused to allow him to see the interrogatories, and, not having had notice from his associate attorneys in Texas, who had the management of the case, he advised the witnesses not to appear before the notary. Upon receiving advice from the Texas attorneys to that effect, he immediately made every effort to have the witness appear before the notary and answer the interrogatories. From this we think it clear that the ruling of the court was proper. (Bounds v. Little,
We next consider the question of the court's instructing a verdict against appellant, because, if this ruling be sustained, all other complaints of appellant are unimportant, and cease to be issues in the case. In this connection it will be necessary to make at least a brief statement of the issues upon which appellant contends he was entitled to go to the jury. On February 5, 1898, appellant executed and delivered to William H. Bush his warranty deed conveying to said Bush all lots and blocks of land owned by him in the town of Amarillo, and eighteen sections of land in Potter and Randall Counties, in settlement of $41,416.91, which he owed Bush on two promissory notes secured by mortgage on the same and other property. William H. Bush conveyed block 60, the land in controversy, and four lots in block 53, to appellee Mrs. Simmons by warranty deed, prior to October 17, 1902, for a recited consideration of $2,500. It is contended by appellant that his deed of February 5, 1898, to William H. Bush, was intended to be, and was, a mortgage to secure the indebtedness due to Bush, and upon this issue the evidence was conflicting, and the issue should, if it stood alone, have been submitted to the jury. It is also contended that Mrs. Simmons purchased with notice that such instrument was a mortgage, and that she paid no part of the purchase price, and therefore could not claim to be an innocent purchaser for value; upon this issue the evidence is possibly conflicting. A controversy having arisen between appellant *26 and William H. Bush, with reference to the character of the instrument of February 5, 1898, they entered into a written contract of date October 17, 1902, by the terms of which it was agreed that Bush should reconvey to appellant that portion of the property conveyed in said deed which had not been previously sold by Bush. The terms of this agreement contemplated a complete accounting between the parties and a repayment by appellant to Bush of the original indebtedness, with interest, and other items of cost and expense incident to the management of the property. On November 1, 1902, another written agreement to the same effect, but somewhat enlarged in that it contained an itemized statement of debits and credits, was entered into. On January 3, 1903, they had a final settlement of their differences evidenced by a written agreement, in which appellant approved all sales of said property made by Bush, and received Bush's deed of conveyance of the unsold part of said property, at the same time paying in full the original indebtedness to Bush, and, as appellant contends, the sum of $2,500 besides. Appellant insists that he is not precluded from a recovery on account of this ratification, because the same was obtained by Bush under such circumstances as to amount to duress of property.
We are inclined to hold that where, as here, the pleadings are those of a formal, statutory action of trespass to try title, in which neither the plaintiff nor the defendant has pleaded facts showing a right to affirmative, equitable relief, the effect of an instrument affecting the property can not be avoided for duress. In such a case the holder of the legal title is entitled to recover. Groesbeck v. Crow,
This, while not all of appellant's testimony along this line, fairly illustrates its tendency, and falls far short, we think, of showing such unlawful and wrongful detention of his property as would amount in law to duress. (French v. Shoemaker, 14 Wall., 314, 20 L.Ed., 852; Hackley v. Headley, Mich., 8 N.W. Rep., 511; Shelton v. Jackson, 20 Texas Civ. App. 444[
Whether there was error or not in the form of the judgment authorizing the intervener to recover from the Simmonses, or, indeed, in permitting the intervention at all, is immaterial insofar as appellant is concerned, since in no event was he entitled to recover, and the irregularity, if any, in these respects, could at most amount only to a question of costs, as to which appellant has made no complaint.
The judgment of the District Court is in all things affirmed.
Affirmed.
Writ of error refused.