37 Tex. 59 | Tex. | 1873
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
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
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
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
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.