Haney v. Clark

Citations

• 65 Tex. 93
• 1885 Tex. LEXIS 317

Syllabus

<p>1. Evidence—Practice—Tender—Market Value.—Plaintiff brought suit to cancel a deed made to defendant, claiming that, though the deed was absolute on its face, it was in fact given to secure a debt due from plaintiff to defendant and a verbal agreement was made to that effect. Plaintiff alleged that defendant counseled her not to leave the property in the hands of her (plaintiff’s) husband, as he was a dissipated, improvident man,' incapable of managing the estate, and knowing this to be true, she had given defendant the deed to the land. Held:</p> <p>(1) That plaintiff could testify as to the mental condition of her husband, and even as to his sanity, if she stated the fact on which her opinion was based. (Following Thomas v. State, 40 Tex., 60; Holcomb v. State, 41 Tex., 125, etc.)</p> <p>(2) The recall of a witness to the stand is something within the discretion of the trial judge and will not be revised on appeal.</p> <p>(3) The fact that an agent of plaintiff told defendant that he had the money to pay the debt due from plaintiff, and asked defendant to make a calculation as to the amount of the balance and he would pay it, constituted sufficient tender under the circumstances, more especially as defendant refused to recognize plaintiff’s right to reclaim the land by the payment of any sum whatever. It was not error to allow the agent to testify as to where the tender was made.</p> <p>(4) A map of the land, made by the county surveyor from records notin issue between the parties, was admissible to show the location of the land as to surrounding tracts, etc. The fact that the map did not contain two small tracts, the deeds to which were not recorded, was not sufficient cause to reject it, unless the opposite party showed that he was injured by the defect.</p> <p>(5) The price at which defendant offered to sell the land immediately after it was conveyed to him was no proper criterion of its value, for if it was conveyed merely as security, as claimed by plaintif