Batts v. Scott, 37 Tex. 59

37 Tex. 59 | Tex. | 1873

Ogden, J.

Batts & Dean and O. P. Bowles instituted separate suits against the same defendants in the Galveston district court, for the foreclosure of separate deeds of trust upon the same fractional portion of a lot of land in Galveston city, and by agreement of all parties, the two causes were consolidated into one, and were thereafter treated as one suit. A trial was had, and a verdict and judgmeht were rendered against the plaintiffs below, and they have appealed.

The errors assigned have reference to the rulings of the court on the trial and the charges given to the jury, and it is claimed that thereby the jury were misled into finding an illegal verdict, and one upon which no proper decree could be entered. There was no error in the ruling of the court on the demurrer to the answer of defendant, Mrs. Hammett; her answer shows most clearly that she was an innocent purchaser for a valuable consideration, and that a moiety of the purchase-money was paid down. This fact, alone, would give her a right to be heard, and for this her answer was not subject to a general demurrer. It is believed that under our law and the frequent decisions of this court, an innocent purchaser of an equitable title to land is as much entitled to protection as the purchaser of a legal title. (Article 4983, Paschal’s Digest, and note.)

There was error in the charge of the court, wherein the jury were instructed that if they believed from the evidence that Hammett purchased in good faith, without notice, and for a valuable consideration, paid or to be paid, then they should find for the defendant, Mrs. Hammett. This, as a legal proposition, without qualification, is believed to be in violation of a well-established principle of law and the repeated decisions of this and other courts. (Nolan v. Gwyne, 16 Ala., 725; High v. Batte, 10 Yerger, 335; Jewett v. Palmer, 7 Johns. Chan. Rep., 65; Beaty v. Whitaker, 23 Texas, 528; Watkins v. Edwards, 23 Texas, 447.) In order to entitle a party to be treated as an innocent purchaser for a valuable consideration, the purchase-money must be paid, and if but part of the purchase-money has been paid, then he can claim the protection of a court of equity only to the extent of the payment made, and not as to the entire purchase, as the jury in this case were authorized to believe from the charge of the court.

The facts in this cause, however, are such as to render the error referred to in the charge of the court immaterial, as an unobjectionable charge would not have changed the verdict. Hammett and wife purchased the sixty-five feet of land claimed by the surviving wife, on the 28th of March, 1867, and paid in cash one thousand four hundred dollars, one-half of the purchase-money, and executed to McHeil three negotiable promissory notes for the balance, and at the same time there was a definite understanding and agreement between McHeil, Hammett, and Hennessy, that the latter should sell to McNeil certain merchandise on the credit and responsibility of Hammett, and that Hammett should pay the same in discharge of his negotiable notes given to McNeil. Hennessy testifies that the agreement was entered into at the time of the purchase by Hammett, and that, in compliance with said agreement, he let McNeil have the goods upon the responsibility of Hammett, who was at. that time his clerk; that, in compliance with said agreement, Hammett paid a considerable portion of the amount due McNeil to Hennessy, and finally executed a note for the balance. We are of the opinion that the execution of negotiable notes to McNeil, and,- at the same time, agreeing to pay McNeil’s debts to the amount of those notes, are tantamount to a full payment to McNeil, and the cancellation of his debt so far as he was concerned.

It is, however, claimed that, as Mrs. Hammett’s is only an equitable title, that title should be held subordinate to appellant’s prior equities, and that therefore the judgment in her favor is erroneous. But it should be remembered that equity follows the law, and that the same rules for the registration of legal titles and interests must be observed in regard to equitable titles and interests, and that appellants, in failing and neglecting to record their deeds of trust until after the purchase by Hammett, thereby lost all claim to a priority of equities. We think the judgment in favor of Mrs. Hammett fully sustained by the law and the equities of this case, and that, in so far, it should be affirmed.

But we are of the opinion that there was manifest error in the charge of the court in regard to the homestead interest of the minor heirs of McNeil, deceased. It appears from the facts of this cause that, at the time of the execution of the deeds of trust to appellants, McNeil and family resided in the county of Bastrop, where they had owned a residence and homestead for many years, and had never occupied the land in question as a homestead ; that McNeil and family moved upon the land in the fall of 186Y, long after the execution of both deeds of trust. There can be no pretense or claim that, when the deeds of trust were executed, McNeil and family occupied or held the lot as a homestead, nor that McNeil could have sold the land, by an indefeasible deed, without the signature of the wife. The bond for title to Hammett was signed by McNeil alone, and it may be presumed that the deeds of trust were executed in the same way, and yet no question as to the validity of either is raised on account of the absence of the signature of Mrs. McNeil. If, then, at the time of the execution of the deeds of trust, the lot in controversy was not the actual homestead of McNeil and family, but that they had a homestead in Bastrop, then McNeil had a right to sell or encumber this lot in Galveston, and he did so encumber the same, by giving a deed of trust to O. P. Bowles in March, 1867, and another to Batts & Dean in July of the same year; and it was not until November following that he moved upon the same as a homestead. And under these circumstances it would seem clear that the homestead right attached, if at all, subject to the prior equities of appellants. In Farmer v. Simpson, 6 Texas, 303, Justice Lipscomb, in delivering the opinion of the court, said: “ And all liens acquired before the homestead has been established must be raised, or it will be subject to forced sale for “ satisfaction of such liens.” The same principle was clearly enunciated in Shepherd v. White, 11 Texas, 354; and in White v. Shepherd, 16 Texas, 172; Potshusky v. Kremkan, 26 Texas, 307; and Merchant v. Perez, 11 Texas, 22. Had this lot been levied upon by an execution against McNeil at the time of the execution of the deed of trust, it would have held the property, and any claim of homestead would have been held fraudulent as against the levy. (Stone v. Darnell, 20 Texas, 14.)

It is claimed that McNeil, during the summer of 1867,. said to third parties-that he intended to make the lot in controversy his homestead, and that fact is claimed as a sufficient evidence of a dedication to that purpose. But, as this was a simple statement of McNeil, which was not so binding on him that he could not change his mind or alter his purposes, we are led to the conclusion that his solemn deeds to the contrary establish the fact that he had, so far, at least, changed his mind, as to make his homestead rights subordinate to the deeds of trust. We are unable to discover any good reason or authority for holding this property subject to the homestead rights of the heirs of McNeil, and must therefore hold that the court erred in its instructions to the jury, and that the verdict and judgment are in this respect erroneous, and must be reversed.

There, however, appears to be no homestead for the minor children of McNeil and wife, deceased, and no property belonging to the estate of either, out of which an allowance in stead of a homestead could be made under the statute, excepting the property now in controversy, and the administrator and guardian of the minor children claim an allowance out of the proceeds of the sale of said property for that purpose. The judgment of the District Court will therefore be reversed, and be reformed so as to give Mrs. Hammett the land claimed by her, and that a judgment be rendered in favor of the appellants O. P. Bowles and Batts & Dean, and against the estate of D. L. McNeil, deceased, for the amounts severally claimed by them; and to order the sale of the remainder .of the land, by the administrator, as under administrator’s sale, and the proceeds «thereof to be applied as follows : first, to pay to the guardian ef the minor children of D. L. McNeil, deceased, the sum of .two thousand dollars, in lieu of the homestead, and to apply .the balance to pay off and cancel this judgment in favor of O. P. Bowles, which is secured by deed of trust on the premises, and then to satisfy the judgment in favor of appellants Batts and Dean, also secured by deed of trust; and that this judgrnent be certified to the probate court for observance.

Reversed and reformed.