Gaston & Thomas v. Dashiell

Citations

• 55 Tex. 508
• 1881 Tex. LEXIS 147

Syllabus

<p>1. Fraud.—A surviving husband acting as executor of his deceased wife’s will, under power to mortgage, sell and dispose of her estate for the benefit of her children, conveyed real estate thus inherited by the children for §30,000, making warranty deed, and two days afterwards received from the vendee a deed reconveying the property to the executor by quit-claim deed for §20,000. No consideration passed for either deed; they were made to enable the executor to incumber the land for his individual use; and both were acknowledged and filed for record on the day of their execution. These deeds were made just after the executor, who desired to borrow money from a third party, had been told that the loan could be obtained on real estate security. Five days after the reconveyance, the third party loaned money to the executor, receiving as security for the loan a mortgage on the land with a power of sale, under which the land was sold and the mortgagee became the purchaser. In a suit involving title between the mortgagee, the executor, and the heirs of the wife, represented by a special guardian, claiming title in them, and charging fraud, held,</p> <p>(1) When evidence tending to charge a party with notice consists in part of written instruments of record in his claim of title, and in part of admitted or unquestioned facts, the question of notice becomes one of law.</p> <p>(2) As matter of law, the mortgagee was chargeable with notice of the fraud perpetrated on the heirs.</p> <p>2. Charge of court.—Though a charge may be upon the weight of evidence, yet if from the whole case it is clear that no other verdict could have been rendered, or would have been permitted as the basis of a judgment, the judgment will not for that cause be reversed.</p>