148 S.W. 333 | Tex. App. | 1912
Appellees, husband and wife, were the plaintiffs below. In their petition, after making the allegations usually made by the plaintiff in a suit of trespass to try title, they alleged that on May 13, 1907, appellee J. A. Parrish was indebted to appellant in the sum of $300, and that, to secure the payment of a note evidencing the indebtedness, they conveyed to him by an *334 instrument in form a deed, but in fact a mortgage, 11 1/4 acres of land, a part of their homestead. They then alleged as follows "Further, plaintiffs say that should they be mistaken as to said land being a part of their homestead, and, should the court re fuse to cancel said deed and give them judgment for the land, then they say that the said deed as before charged was given as a security to secure the payment of the $300 note stated above, and was so accepted and regarded by all the parties thereto at the time the same was executed, and that the said Beauchamp afterwards sold the land to the defendant John Mills for the sum of $450; that at and before the time of the sale the defendant Beauchamp and the plaintiff J. A. Parrish had an agreement in which it was agreed that the defendant Beauchamp would sell the land to Mills for the sum of $450, and from the proceeds of the sale he was to reserve to himself the sum of $300 to pay the note which had been given him, and was to pay over the remainder, $150, to the plaintiff Parrish; that the defendant Beauchamp, in pursuance to such agreement, sold the said land to the said Mills for $450, and from the amount received paid himself the $300, and of the $150 agreed to be paid by him to the plaintiff Parrish he has paid to the said plaintiff $40, and has appropriated the remainder of the $150, to wit, $110 to his own use and benefit, and has failed and refused to pay the same to the plaintiff, or any part thereof, although the plaintiffs have often demanded of him such payment." Appellees further alleged that Mills, whom they made a defendant with appellant, at the time he purchased the land of the latter, knew it was a part of their homestead. They prayed for a recovery of the land; and, in the alternative, for a recovery of the sum of $110 as the balance due them of a sum representing the difference between the sum they owed Beauchamp and the sum paid to him by Mills for the land. A trial before the court without a jury resulted in a judgment in favor of appellees against appellant for the sum of $75.
Appellant insists that the court, having determined that appellees' claim of a right to recover the land was not established, did not have power to grant the alternative relief they prayed for. As supporting his contention, appellant cites Carter v. Hubbard,
The power of the court to render the judgment it did render in the case before us we think fairly can be referred to the principle recognized in Chambers v. Cannon,
The judgment is affirmed.