49 Tex. 458 | Tex. | 1878
claiming to be the legal owner of 2,280 acres of land, valuable mainly for the guano in a cave inhabited by bats, brought suit against the
“ The State of Texas, )
“ County of Bexar.
“Know all men by these presents, that whereas on this the 7th day of March, 1876, the following-described land was sold at trustee’s sale, viz., 2,280 acres, more or less, situated on the waters of the Cíbolo, in Comal county, Texas, fifteen miles west of Hew Braunfels, headlight of Toribio La Sago, which sale wras made by W. B. Leigh, trustee under a deed of trust executed by H. and S. E. Weir in favor of W. H. Fire-1 bough, and whereas said land was bought by me, and the deed will be made to me, but really in trust for the said H. and S.E. Weir: How, therefore, should the said H. and S. E. Weir repay me by the 7th of September next the amount of the purchase-money paid by me, $802 and costs, with interest from date at the rate of one and a half per cent, per month, principal and interest, and also $185 with interest at eight per cent, per annum, principal and interest, in United States currency, I hereby bind myself, my heirs, and legal representatives to reconvey to the said H. and S. E. Weir the above-described property, and in case of default in complying with this agreement, then this obligation is to become void and of no effect.
“Witness my hand this day and date first above written.
(Signed,) “B. R. Fokes.
“Witnesses: W. R. Wallace, Geo. M. Gordon.”
On July 13, 1877, Fokes conveyed the premises by quit
The defendants, McDonald and others, held under a lease from Henry Weir, of date January 25, 1877, giving the right to excavate and export the guano from the bat cave for two years from March 1,1877; and answered, claiming that Fokes bid off the land in pursuance of an agreement with Henry Weir, that he should bid the amount due, and take a deed from the trustee to secure to him the repayment of said sum of $802 and the further sum of $185; that the sole interest of Fokes was that of- mortgagee; that the actual possession and control of the premises had after the sale remained with Weir and wife; and alleging that Mrs. Weir (her husband having died) had tendered to Walker the principal and interest of the claim secured by the (alleged)' mortgage, but that Walker had refused to receive it.
Walker, in an amended petition, denied that Fokes purchased in pursuance of any agreement, claiming that he purchased absolutely for himself, and afterwards voluntarily, and without any consideration therefor, executed the instrument giving the right to repurchase within the time specified, but not thereafter; and that it was so understood by Fokes and Weir and wife; and that it was only after the failure of Weir and wife to comply with the terms on which they were to repurchase, and after the death of Weir, and on information that Mrs. Weir had abandoned the idea of repurchasing, that he bought of Fokes; stating further, that the only tender made was to him after he had purchased.
A jury was waived, and, no other evidence being admitted save the title papers, the cause was submitted to the court, resulting in a judgment in favor of defendants. It appears, by bill of exceptions, that the plaintiff offered in evidence the deposition of Fokes and sundry letters, some from W eir after the trust sale, for the purpose of explaining the transaction and showing the understanding of the parties in regard to the agreement for a reconveyance; but the court, on objec
The question as to the nature of the transaction in this-case was one of fact and intention, and the court erred in excluding evidence of the circumstances attending it, and of the, acts of the parties showing how it was regarded by them. The depositions of Pokes and the letters offered were erroneously excluded; and without undertaking to pronounce on the effect of that excluded evidence, we are of opinion that its exclusion was such error as entitles appellant to another trial.
The judgment is reversed and the cause remanded.
Reversed and remanded.