61 Tex. 634 | Tex. | 1884
— This suit was instituted by A. H. Sharrock and L. Kelly on the 24th day of January, A. D. 1882, against G. W. Claybrooks and Clabe Harris, to foreclose a mortgage lien for the balance of the purchase money due on four and three-fourths acres of land taken out of the Asa Heartsfield survey, situated in Grayson county, Texas, and one mile west of the town of Whitesboro, and known as the Wm. Crenshaw mill property. Also, the cotton-gin, grist-mill, engine, boilers, and all machinery attached thereto. On the 18th day of March, A. D. 1879, G. W. Claybrooks purchased of A. H. Sharrock the above described property, and gave as a part of the purchase consideration therefor lot Ho. 4, in block Ho. 2, inthe town of Whitesboro, Grayson county, Texas. On the 30th of Hovember, A. D. 1878, the said G. W. Claybrooks bought ■said lot Ho. 4, in block Ho. 2, of L. H. B. Christian, and executed his two certain promissory notes to her for the sums respectively of $650, and dated 30th of Hovember, A. D. 1878, due 20th day of April, A. D. 1879, another note for $600, dated same as first note, and due April 20, 1882, with vendor’s lien reserved on said lot to ■secure the payment of the said notes. On the 18th day of March, A. D. 1879, the date of the purchase of the Crenshaw mill property ■by G. W. Claybrooks from A. H. Sharrock, it was agreed among the parties that said Sharrock should reserve a vendor’s lien on said mill property to secure him in case of default on part of Claybrooks to pay off the two Christian notes for the sum of $1,250. After-wards, on the 16th day of March, A. D. 1881, in pursuance of said agreement, the said Claybrooks executed and delivered to Sharrock .and Kelly his mortgage on the above described Wm. Crenshaw’s mill property, to indemnify or secure the said Sharrock and Kelly against any loss in case the said Claybrooks should make default in the payment of the aforesaid Christian notes. On the 7th day of July, A. D. 1879, said Claybrooks made a deed to lot Ho. 4, in block Ho; 2, to T.- D. Kelly, at the request of L. Kelly, who was the part
The first assignment of error brings in review the action of the-court in excluding the evidence of L. Kelly, offered by appellant for-the purpose of showing that the purpose of appellees in having the-deeds made in the form they were made, was to delay, hinder and del raud their creditors.
Under the special facts and circumstances disclosed by the evidence in this case, and about which -there is no real conflict, we are-of opinion that the court did not err in excluding from the consideration of the jury the evidence of L. Kelly. This testimony was. offered for the purpose of showing that the deed of Claybrooks, executed, at the instance of the witness, to T. D. Kelly, was so. made for the purpose of defrauding the creditors of L. Kelly and
Nor was there any serious error in the action of the court in instructing the jury that the mortgage offered in evidence by the appellees would authorize them to find the value of lot No. 4, in block No. 2, on the 3d of January, 1882, the date of the sheriff’s deed to said lot to Christian.
Upon the final failure of the appellant to make the last payment of the purchase money for lot 4, in block No. 2, to Christian, the right of appellee to foreclose the mortgage on the Crenshaw mill property was complete.
The sole purpose of the execution of the mortgage was to secure the payment of the purchase money due on the Crenshaw mill property therein described, for which property the said lot No. 4 was taken in part payment, as the evidence clearly shows. The purpose of its execution was to protect appellee against the out'tanding: vendor’s lien on lot 4, held by Christian for the purchase money of that lot.
Nor could the claim of homestead avail the party, under the facts of the case, to prevent the sale of the Crenshaw mill property.
The evidence shows that it was not in fact the homestead of appellant. He was a married man, and his wife was then living where he had previously lived for seven years, in Hopkins county, upon a homestead claimed by her through a former husband. This place, the evidence shows, was the home of appellant when he went
The evidence showed in effect that the purchase money for the Crenshaw mill property was not in fact paid. It showed, as was before stated, that lot 4 was in fact taken as part of the purchase money for the mill property, and that said lot had changed hands several times by consent of parties, always recognized, however, as subject to the vendor’s lien against it held by Christian, and that lastly it was traded to appellant by appellees, subject to their lien; and on the 16th of March, 1881, appellant executed the mortgage in question to appellees on the mill property to protect them against the vendor’s lien on lot 4 in case of failure of appellant to pay the notes due Christian for the purchase money of the lot.
There is no error in the judgment, and it is affirmed.
Affirmed.
[Opinion delivered May 23, 1884.]