Nannie Pierce v. J. M. Fort, 60 Tex. 464

Delany, J. Com. App. The plaintiff sued for and sequestered four tracts of land. The defendant surrenders two of these tracts, and asserts her right to the remaining two, comprising one hundred and thirty-four acres, which she claims as having been the homestead of herself and her deceased husband, and as being still the homestead of herself and her minor children. As the plaintiff and his immediate vendor, Matthiessen, bought with notice of this claim of the defendant, they stand in the position which their vendor, Wright, would have occupied, had he been plaintiff.

The matter to be determined, therefore, is whether the deed from Pierce and wife to Wright, made April 25, 1873, was sufficient to preclude the homestead rights of the defendant, and whether the issues of fact which were necessary to determine this question were fairly submitted to the jury.

The defendant does not deny the execution of the instrument; but she insists that she signed it, believing it to be a mortgage upon other lands than her homestead; that it had been fraudulently represented to her as such that the officer who took the acknowledgment did not explain it to her, and that the plaintiff and his vendors had notice of the fraud.

Upon this part of the case the defendant asked the following charge, which, was refused: “ If you believe from the evidence that . . . the defendant Nannie Pierce had been informed that it (the deed) was only a mortgage to secure the payment of borrowed money, and that she believed it, and was not informed by W. B.

Wright or any other person that it was an absolute deed; and if you further believe that defendant Nannie Pierce had not read the deed, and did not know, or was not informed, what land was embraced in it, or what the character of the instrument was, then I charge you that such an instrument is not a valid deed against the defendant, sufficient to convey her homestead.” In our opinion there was no error in refusing this charge. It was not the duty of Wright to become the adviser of Mrs.

Pierce in the contract which she was about to make; nor was he bound to see to it that the notary did his duty in the matter of her privy examination. All that the law required of him was that he should act fairly, and not avail himself knowingly of the fraudulent conduct of others. , The law does not presume that the husband will practice a fraud upon his wife, nor does it require that one who deals with the husband shall so presume.

As the law makes him the head of the community, and gives him the management and control of the wife’s separate property, it would be natural to suppose that all negotiations for the transfer of property, whether community or separate, would be made with the husband. When, therefore, one who has contracted with the husband for the purchase of the homestead or the separate property of the wife, is presented with a deed signed by the husband and wife and duly acknowledged before the proper officer, he has a right to suppose that the wife has freely and with full knowledge given her consent to the sale.

This disposes of the first assignment of error. The second assignment is unimportant; but the third, we think, must be sustained. It complains of the fourth special issue submitted to the jury, which is in these words: “Did or did not W. B. Wright inform defendant, at the time of the execution of the deed, that said deed was only intended to secure the payment of loaned money?” The jury, of course, answered this question in the negative, for there was not the slightest evidence that Wright had done anything of the kind.

It was not, therefore, a proper issue in the case, and it is difficult to see how it could fail to mislead the jury. If there had been any testimony tending to show that Wright had made any such statements to Mrs. Pierce as are mentioned in the charge, it might have been properly submitted to the jury. Under the state of the evidence produced on the trial, the real question was not whether Wright had practiced a positive fraud by deceiving Mrs.

Pierce, but whether a fraud had been practiced upon her by her husband and the notary — one or both,— and did Wright know the fact, or was he in a position to know it, and did he shut his eyes to keep from knowing it. For if the fraud was practiced upon her by those whom she trusted, and he was wilfully blind in order that he might profit by it, he was as guilty as those who perpetrated the fraud. In the case of Shelby v.

Burtis, 18 Tex., 645, where the wife, in her answer, complained bitterly of the deceit practiced upon her by her husband’s attorney, concerning the liability of her separate property for her engagements, the chief justice said (p. 649), “ It is not Without some hesitation that we have come to the conclusion that there was no error in sustaining the demurrer to the separate answer of the appellant Rebecca.” And again on page 651: “ The wife, in her separate answer, charges that before signing she was told by an attorney employed by her husband, that her signing said notes and deed was a mere matter of form and that she would not be bound by them, or either of them, and that the creditor Walbridge was present and knew the most, if not, as she believed, all the facts stated in her answer.

Had she averred distinctly that the creditor knew that she had been advised by counsel that her signature was a mere matter of form, and not binding upon her, this, it is believed, would have been such a fraud upon her, by his consent and collusion, as to have been a ground for relief.” The fourth and fifth assignments of error are waived; but in our opinion the sixth assignment is well taken. The court, in the fifth special issue, submitted to the jury the question whether the deed from Pierce and wife to Wright was an absolute deed or a mortgage.

This question was properly submitted to the jury, inasmuch as the deed is absolute on its face; and if it is to have the effect of a mortgage, that result must be brought about by parol proof. But as to the quantity and character of the proof necessary to show that the deed was a mortgage, the court instructed the jury as follows: “I furthermore charge you that the law will not warrant you in finding the deed a mortgage, unless the fact that it was intended to be such be proven by at least two witnesses, or by one witness and strong corroborating circumstances.” This was error.

In support of it counsel for appellee refers us to the case of Moreland v. Barnhart, 41 Tex., 275. In that case, Mr. Justice Reeves (on page 283) remarks as follows: “ That a deed absolute on its face may be shown by parol to be intended as a trust, has been often decided by this court. The trust must be shown with clearness and certainty, and in some of the eases it has been held that it must be shown by the testimony of more than one witness, unless his testimony be confirmed by corroborating circumstances.” He cites a number of cases from our reports, and among them Miller v.

Thatcher, 9 Tex., 482, in which the technical rule is laid down as it ivas given by the judge below in the trial of the present cause. But in the later case of Gaines v. The Exchange Bank, decided at Austin in 1882 (1 Law Reporter, p. 477), it was held that this technical rule was applicable only to cases in which it was sought to establish the trust by proving the declarations of a deceased trustee, or where the trustee was testifying to the trust in his own interest.

In answer to the question contained in the twelfth special issue, the jury found that after Wright had sold to Matthiessen and before the conveyance of Matthiessen to Fort, the land was sold under a valid execution against Matthiessen, and was bought by Mrs. Pierce, who received the sheriff’s deed. Whatever interest Matthiessen had in the land, at the date of that sale, was thus transferred to the defendant. Baker v. Clepper, 26 Tex., 629. So that Matthiessen’s deed to Fort, considered by itself, passed no interest in the land, because he had none to convey.

The interest which Mattbiessen had in the land at the date of the sheriff’s sale, and which passed to Mrs. Pierce by the sale, was an equity to pay the purchase money notes to W. B. Wright and receive a complete title to the land. If, after the sheriff’s sale, Wright had brought suit to foreclose against Matthiessen, without making Mrs. Pierce a party, the decree would not have affected her right — she being in possession and her deed on record. And if he had made her a party, she might have tendered the amount of the purchase money and demanded the title. Peters v. Clements, 46 Tex., 114, and many other oases.

This is, perhaps, as much as we ought to say. Whether W. B. Wright had a good and valid title when he conveyed to Mattbiessen, that is, whether the conveyance from Pierce and wife to Wright was an absolute deed or a mortgage, is a question to be determined after an examination of all the circumstances attending the transaction and connected with it, which may throw light upon its character. Upon the question whether a fraud was. practiced upon Mrs. Pierce in that matter, and, if so, whether Wright is chargeable with notice of it, we have said enough already.

Our opinion is that the judgment should be reversed and the cause remanded. Reversed and remanded. [Opinion adopted December 7, 1883.]