Eastham v. Hunter

BROWN, Associate Justice. Beverly Hunter and Caroline Hunter, husband and wife, owned and occupied as their homestead the land in controversy. In 1879 they executed a power of attorney to Robert Hunter, their son, authorizing him to sell the land. On January 5, 18S0, Robert Hunter, acting under the power of attorney, sold the land to W. R. Pace .and made him a deed reciting a cash payment of $112.50, and on December 1, 1880, Pace sold the land to B. Bastham and executed to him a deed in which it was recited that the consideration of $145.25 was paid. Beverly Hunter and Caroline Hunter removed to Kansas before the sale of the land by Robert Hunter and both died before the institution of this suit; plaintiffs are their heirs. Bastham died in 1883, and defendants are his widow and son and Dunn, who claimed under them. The Court of Civil Appeals found that Pace did not pay the $112.50 to Robert Hunter nor to Beverly nor Caroline Hunter, but that the consideration expressed in the deed was paid by a debt due from Beverly and *563 Bobert Hunter, or by a debt of Bobert Hunter alone, to Wm. B. Pace: At the time of the transaction Bastham paid to Pace $145.25, the consideration expressed in the deed from the latter to him. Upon the issue of notice to Bastham of the consideration paid by Pace for the land, the latter testified as follows: “At the time Bastham bought the land from me he did not lmow and did not have any knowledge than that I had paid to Bobert Hunter the full consideration named in the deed from Bobert Hunter to me, but had reason to know that I had paid every cent called for in the said deed. If any part of the consideration named in the deed from Bobert Hunter to me went to pay Bobert Hunter’s debt, Mr. Bastham did not know it.” On cross-examination Pace testified upon the same subject as follows: “Bastham did not know anything about the transaction until after it was completed, and at the time of my transaction with him we discussed' the matter fully.” And again on cross-examination, he testified: “At the time I traded with Bobert Hunter I knew that Bastham knew nothing about it, but when I traded with Bastham I then explained to him the whole transaction.” Judgment was rendered, in the trial court in favor or Mrs. Bastham and her children, which was reversed by the Court of Civil Appeals and judgment rendered in favor of the plaintiffs for the land. Upon reversing the judgment of the trial court, the Court of Civil Appeals could render judgment only in case the evidence is so conclusive that there was no issue as to notice which should have been submitted to a jury; that is, if the trial court should have instructed a verdict, then the Court of Civil Appeals correctly rendered judgment, otherwise it had no authority to do so. Houston & T. C. Ry. Co. v. Strycharski, 92 Texas, 1; Stevens v. Masterson’s Heirs, 90 Texas, 425; Underwood v. Jones, 95 Texas, 121. Bor the purposes of this investigation wc will assume, that the Court-of Civil Appeals correctly held that the consideration of the deed from Bobert Hunter to Pace was the discharge of a pre-existing debt, and we will inquire, does the evidence establish that Bastham had notice of the manner in which Pace paid for the land with such conclusiveness as to justify the judgment of the Court of Civil Appeals? The evidence is undisputed that Bastham paid to Pace a valuable consideration for the land, being its full value, and that at the time Bobert Hunter was in possession of the land; he was there when he made the deed and continued to occupy it for two years, which, being consistent with his deed to Pace, was not notice. The transaction occurred more than twenty years prior to the institution of this suit, during which time Bastham and his heirs paid taxes upon the land, but there was no claim made at any time against the right of Bastham by the defendants in error or their ancestors. Bobert Hunter testified that about fourteen years before the trial he and a brother called on Mr. Jones to redeem the land, but it does not appear that Jones had any connection with Bast- *564 ham. Eastham had been dead more than twenty years before the trial. Under such a state of facts the jury might presume that Eastham bought the land in good faith for a valuable consideration and without notice of the defects in the title. Dean v. Gibson, 9 Texas Ct. Rep., 584 (in which a writ of error was refused by this court); Rogers v. Pettus, 80 Texas, 428. Pace, the only person living who could testify to the transaction between himself and Eastham, testified both on direct and cross-examination, in substance, that Eastham did not know that he, Pace, had paid for the land in a pre-existing debt. In answer to cross interrogatories, Pace said that when he sold to Eastham he explained the matter to him. The honorable Court of Civil Appeals holds that this proof shows conclusively that Eastham had notice that the consideration paid by Pace was g debt due from one or both of the Hunters. In Rogers v. Pettus, cited above, Judge Stayton said: “It would seem that, in cases in which parties to transactions have died, and no direct proof can be made that the subsequent purchaser had or hadmot notice of a prior conveyance, upon proof being made that the subsequent purchaser paid a valuable consideration the presumption might be indulged that he bought without notice of the prior conveyance; for it is not consistent with the ordinary conduct of men, who must be supposed to act with reference to their own interest, that a valuable consideration-should be paid for that which the purchaser knows does not belong to the seller.” Judge Stayton treated the question in a practical way, looking at it as men would in the ordinary course of business, and it seems-to us that the reason assigned by Judge Stayton applies with great force to this case. Would a man in the ordinary transaction of business pay a valuable consideration, the full value of property, when he was told at the time by the vendor that certain facts existed which would make his title worthless? We think‘that such a conclusion does not necessarily follow from the uncertain and contradictory evidence upon which the judgment in this case rests. The Court of Civil Appeals reasons that as they have "found that Pace -paid for the land by discharging a debt of his vendor, therefore, when he explained'the matter fully to Eastham, he told, him those facts; but, at the time Pace makes this statesement, he likewise says most emphatically that Eastham did not have notice of the very fact which the court assumes that he told Eastham when he sold him the land. We think that there was ample room for a jury to conclude from the evidence that the explanation which Pace made to Eastham did not consist of a statement of the facts which would have defeated the title. If Pace’s testimony be left out entirely except as to the payment of the consideration, the evidence would be sufficient upon which a jury "might find that Eastham had no notice at the time that he purchased the land. If it be granted that Pace testified he told Eastham that he paid for the land in a debt, that would not conclusively establish the fact; for *565 the plaintiffs in error having introduced sufficient evidence to support a verdict in their favor, were entitled to have the issue submitted, no matter how strong the contradictory evidence might be. In determining this question we must consider the evidence in its most favorable aspect for the plaintiffs in error, disregarding conflicts and contradictions; they raised the issue of credibility, which was a question for the jury. Choate v. Railway Co., 90 Texas, 86. Counsel for defendants in error contend that Pace could not testify as to what Eastham knew. That evidence, stated on direct examination, was called out by defendants in error on cross-examination, and they can not object to it. However, if it be disregarded, the result would be the same as we have seen. The judgment of the Court of Civil Appeals in so far as it renders judgment for the defendants in error is reversed and the cause is remanded. Reversed and remanded.