Adams v. Wallace , 1919 Tex. App. LEXIS 1299 ( 1919 )

The insistence in appellee's motion to dismiss the appeal that an appeal does not lie from an order overruling a plea of privilege is in the face of an express provision in the statute (Revised Statutes 1911, art. 1903, as amended April 2, 1917), allowing such an appeal. The motion is overruled.

It is entirely clear, we think, that the suit was not maintainable in Titus county on the ground that appellant committed a "trespass" there, within the meaning of the ninth exception to article 1830, Vernon's Statutes.

And we think appellee also failed to discharge the burden which rested upon him to show that the suit was maintainable in Titus county on the ground that appellant was guilty of fraud there, within the meaning of the seventh exception to said article of the Statutes. The testimony relied on to establish fraud on appellant's part is set out in the statement above. It may have been sufficient to show that appellant perpetrated a fraud on appellee when he sold and conveyed the land to Harrington. But that occurred in Collin and not in Titus county. Boothe v. Fiest, 80 Tex. 141, 15 S.W. 799; Espey v. Boone, 75 S.W. 570. We think the testimony was not sufficient to show that, at the time he induced appellee to execute the deed by promising to treat it as a mortgage and to reconvey the land to appellee, appellant intended instead to treat the instrument as an absolute conveyance and to defraud appellee of his title to the land by conveying it to an innocent third person. The fact that appellant did not so convey the land, nor, it seems, make an effort to do so, until more than two years after the time when appellee conveyed it to him, we think strongly negatives the existence at that time of such an intention on his part. And as we view the testimony none of it tended to establish the existence of such an intention on appellant's part at the time appellee conveyed the land to him.

The judgment will be reversed, and a judgment sustaining appellant's plea of privilege, and directing the clerk of the county court of Titus county to make up a transcript of all the orders made in said cause, certify there to officially under the seal of said court, and transmit the same, with the original papers in the cause, to the clerk of the county court of Collin county, will be here rendered.