254 S.W. 647 | Tex. App. | 1923
The substance of the court's findings of fact, briefly stated, is as follows:
That the two lots in controversy were conveyed by Geo. F. Loving and Clara Loving, the parents of the appellant, to her on the 14th day of May, 1917, by a deed reciting a consideration of $1, to them paid by A. M. Swann and wife, and the further consideration of the grantor's love and affection for the grantees, which deed was duly record ed. Up to January 20, 1921, A. M. Swann was the active vice president of the bank, at which time he resigned. On the 28th day of December, 1920, A. M. Swann was indebted to the bank in the sum of $12,500; $5,000 of said amount being evidenced by his promissory note and interest. On that day he made a draft on G. Ellis of Shreveport, La., in the sum of $5,000, payable to the order of the bank, placed said draft in the assets of the bank, and, without consulting any officer of the bank, took said note out of its possession. The draft was forwarded to Shreveport, and returned unpaid. That the said draft and the indebtedness which it evidenced was a pre-existing indebtedness of Swann to the bank, and that the deed executed by appellant, under duress, was given to discharge such indebtedness. The deed conveying the property is a formal conveyance, with a general warranty; recites a cash consideration of $5,000 paid, and is executed the 21st day of January, 1921, and acknowledged by both Swann and the appellant the same day.
The court further found that Swann delivered the deed to the bank on the morning of January 22, 1921, which was duly accepted by the bank in payment of the said $5,000 draft; that the draft was marked "paid" by the bank, and delivered to Swann, whereby the bank became the owner of the property described in the deed. The court further found that the property was the separate property of appellant; that no valuable consideration whatever passed, the only consideration being the love and affection of her parents for their daughter; that the said property was the homestead of the appellant and her husband, and that the officers of the bank knew that it was her homestead at the time of the execution and delivery of the deed; that the appellant knew at the time she executed the deed that the recited consideration of $5,000 was the payment of that amount due the bank. The court further found that she was under duress because of the threats of her husband, to the effect that if she continued to refuse to sign the deed he would leave her and leave the country, and that she would never see him again, and that he might kill himself; that he was going to flee the country in order to avoid prosecution by the bank, and that he actually got in his automobile and started away, with the avowed intention of carrying his threats into execution, and that because of all the circumstances she was completely under his control and domination. That neither the bank nor any of its officers knew anything of the facts constituting duress at the time of or prior to the delivery of the deed and the cancellation of the draft, nor until some three or four months thereafter. That the notary public who took appellant's acknowledgment to the deed did not explain the same to her, and that while A. M. Swann was physically apart from his wife "he was present in such duress." That the bank knew nothing about the irregularity on the part of the notary in taking appellant's acknowledgment. That they accepted the deed, and in good faith canceled the draft. That on the morning after delivery of the deed, to wit, January 22, 1921, A. M. Swann requested Guy Patterson and Mark Cave, the officials of the bank, to execute an instrument, dated January 21, 1921, the substance of which binds Patterson and Cave to convey unto A. M. Swann the property in question at any time on or before the 21st day of February, 1921, if Swann will deliver to them his note for $5,000, secured by the personal indorsement of Jim C. Loving and Don Loving, Sr. He further finds that these conditions were not complied with, and that Swann never attempted, in any way, to comply with the terms of the option given him by said instrument. That the deed executed on January 21st was accepted by the bank as an absolute conveyance of the property in full satisfaction of the $5,000 draft. That at the time of the deed, and long prior thereto, the property was the homestead of appellant, which was well known to the bank and its officials, and that appellant is still using, occupying, and claiming the same as her homestead at the time of the trial, and that she has never agreed to lease the property from the bank, and had no knowledge of the rental contract entered into by her husband.
The nineteenth assignment is as follows:
"I find that none of the officers of said bank dealt with the said Mrs. Bettie Swann in securing the execution of said deed in payment of said indebtedness, although they each and all knew it was her homestead at the time, and used and occupied by her as such, and were charged with notice that it was her separate estate. I find that none of the officers of said bank had any transaction with Bettie Swann with reference to said property, and that none of them ever talked to her about it, or had any negotiations with her to purchase it, in payment of such debt or for any other consideration. I find that the said Bettie Swann never in fact delivered said deed to said bank in *649 person, nor did she specifically authorize any one else to do so; however, after she had signed and acknowledged said deed under duress, as above found, her said husband, A. M. Swann while she was still laboring under the same took said deed into his possession, and delivered the same to the bank."
The court further found in substance that about 60 days after delivery of the deed Swann agreed with the bank to pay a reasonable monthly rental. That Swann has separated from and abandoned his wife, and that she had at all times after execution of the deed occupied the property; that the reasonable rental value of it is $30 per month.
The first contention is that the deed executed by appellant and her husband is simply a mortgage, because the contract to reconvey upon the execution and delivery of the $5,000 note being contemporaneous with the execution of the deed deprives the latter of the character of a conveyance. As a proposition of law this is sound, but the facts do not support the contention. Guy Patterson, the cashier of the bank, and Mark Cave, one of the directors, testified that the parties connected with the bank understood the deed to be an absolute conveyance of the property; that there was a meeting of the directors with the bank examiner; that the examiner informed the directors that the $5,000 draft made by Swann upon Ellis had been returned unpaid; that the examiner asked the directors if they would be willing to accept a deed conveying Swann's home place in Rotan in payment of the $5,000 item; that after considering the matter they decided to accept it, although the property was not worth the amount of the debt; that afterwards Swann brought the deed to the bank, and the draft was marked paid, and delivered to him, and the property entered upon the real estate account as part of the assets of the bank. They denied specifically that the deed was accepted as a mere security, and Patterson and Cave testified that they gave the option later at the request of Swann, who said to them:
"Of course, you are not acting for the bank in signing an agreement like you are, but I figure you two boys are square and honest, and will do the right thing, and we want the home, and will get the money, or give you a good note."
They further testified that they had no desire to prosecute Swann upon any criminal charge, and that no threats of that nature were made by any of the bank officials. They said they thought the deed was all right, and conveyed title, or they would not have accepted it. A. M. Swann did not testify, and this evidence is sufficient to sustain the court's finding that the deed was not intended as a mortgage.
The next contention is that the Married Woman's Act of 1913, V. S. C. S. art. 4621 and amendments, required the bank to negotiate directly with the appellant, and since this was not done, but the negotiations were conducted through the husband, whom the evidence shows was not the agent of the appellant, the bank was charged with notice of duress and of the invalidity of the conveyance. We do not so construe the statute referred to. The article mentioned provides that:
"The wife shall have the sole management, control and disposition of her separate property, both real and personal."
It would be a strained construction to hold that she could not manage, control, or dispose of it through the medium of an agent. The record will probably not sustain a holding that appellant's husband was her agent in the transaction which resulted in the transfer of the homestead to the bank, but it is clear that he was not the agent of the bank. From the testimony quoted above it appears that the bank examiner, after looking over the condition of the bank's affairs, suggested to the officers of the bank the acceptance of the property in satisfaction of the item of $5,000 indebtedness. He seems to have made this inquiry upon suggestion of Swann himself. The reasonable inference from this testimony is that Swann was acting for himself in securing the deed, and in an effort to avoid the possibility of a prosecution for violating the banking laws. There is nothing in the statute, nor in the circumstances connected with this part of the transaction, which charges the bank with notice of any infirmity in the instrument, or of the fact of duress.
The next contention is that the bank cannot claim to be a bona fide purchaser, for the reason that the only consideration paid was the cancellation of a pre-existing debt against appellant's husband. This is the difficult question in the case. The appellee insists that the judgment below is sustained by the cases of Webb v. Burney,
In the original opinion, which is withdrawn, we held that these cases did not apply. After a careful review of numerous cases, in addition to those cited by appellant, in which the defense of bona fide purchaser was interposed by the vendee, and denied up on the ground that crediting the purchase price upon a pre-existing indebtedness due from the vendor to the vendee was not such a consideration as would support the defense, we have concluded that we were in error. It is said in Webb v. Burney:
"It is contended by appellees that there was no valuable and adequate consideration for the deed, and that this would authorize the wife to impeach the certificate of acknowledgment. *650
There are expressions in some of the cases which indicate that there must be a valuable and adequate consideration paid by the grantee in order to prohibit the wife from impeaching the certificate. Waltee v. Weaver,
While it is true that Judge Simkins, in his work on Equity (2d Ed.) p. 647, criticizes the Webb-Burney Case, and Stephens, Justice, in Harrington v. McFarland,
It is settled by numerous authorities in this state that a wife may mortgage her separate property to secure the debt of her husband. Bird v. Bird (Tex.Civ.App.)
Finding no reversible error, the judgment is affirmed.