Cobern v. Stevens
167 S.W. 207
Tex. App.
1914
Check Treatment
KEY, C. J.

Aрpellees brought this suit against Ben Polk, G. E. Cobern, and Mrs. S. M. Roller, seeking to recover upon a note executed by ‍‌​‌​​‌‌‌​‌‌​​​​‌​‌‌‌‌‌​​‌​‌‌​​​​​​‌​​​‌​​​‌‌​‌‌‌‍Polk and Cobern, and to foreclose an attachment lien upon 335 acrеs of land as against all the defendants, including Mrs. *208 Roller; plaintiffs- alleging that G. E. Cobern had conveyed the land to Mrs. Roller for the purpose of defrauding the plaintiffs, and asking to have that conveyance canceled and the land sold under their attachment lien for the payment of the dеbt owing by Polk and Cd-bern. All of the defendants filed general denials, and the only other pleading necеssary to be mentioned is the plea of homestead interposed by the defendant Cobern. Thе ease was submitted to a jury upon special issues, and the jury found that the land was conveyed by Cobern to his mother, Mrs. Roller, for an indebtedness amounting to $2,625; that the deed by which the property was сonveyed transferred other property, the entire amount transferred being at that time of thе ‍‌​‌​​‌‌‌​‌‌​​​​‌​‌‌‌‌‌​​‌​‌‌​​​​​​‌​​​‌​​​‌‌​‌‌‌‍value of $7,404; that the transfer referred to was made by Cobern for the purpose of defrauding his creditors; but that his mother, Mrs. Roller, was not aware of such fraudulent intent, and surrendered to him a note signed by him, and payable to her, for the sum of $5,800 as a consideration for the execution of the deed. The jury also found that, at the time of the issuance and levy of the writ of attachment sued out by the plaintiffs, the defendant Cobern was a married man, and was residing on and using the land involved as a homе. The court rendered judgment for the plaintiffs for the amount of their debt, and foreclosed the attachment lien against the entire tract of land, and the defendants G. E. Cobern and Mrs. Roller have аppealed.

[1] We sustain the third assignment of error, and hold that the trial court committed error in nоt sustaining Cobern’s plea of homestead. According to the findings of the jury and the undisputed testimony, at thе time the attachment was issued and levied upon the land, Cobern was the head of a family, and wаs residing with his family upon the land.. This being true, as against the plaintiffs and all other general creditors, he wаs entitled to select and hold 200 acres of the land, including the residence and other buildings, as his homestead. Counsel for appellees seem to contend that he could not assert any homestead right because of the fact found by the jury that he transferred the land with intent to defraud his crеditors. We do not regard that contention as sound. If he resided on the property as his homestead at the time he made the transfer referred to, then such transfer as to the 200 acres which сonstituted homestead was not in fraud of creditors; but the jury did not find, and we do not hold, that it was his homesteаd at that time. However, the plaintiffs are estopped from denying that the land belonged to Cobern at the time they had their attachment levied upon it, because they levied upon it as his property, and sought to have the transfer which he had executed canceled and set ‍‌​‌​​‌‌‌​‌‌​​​​‌​‌‌‌‌‌​​‌​‌‌​​​​​​‌​​​‌​​​‌‌​‌‌‌‍aside, in order that it might be sold as. his property in satisfaction of their debt against him. Necessarily, their contention is that, as against them, the law should deal with the property as though it had never been transferred; and, if such had been the ease, it is clear that Cobern could have interposed and maintained his homestead right as against the plaintiffs’ demand. In other words, if it be conceded that thе transfer was made with intent to defraud the plaintiffs, nevertheless, if on account of such fraudulent intent, or for any other reason, Mrs. Roller had transferred the land back to Cobern before the attachment was levied, he could have then interposed his homestead right, as against the attachment lien, or any other right asserted by the plaintiffs. The fact that Cobern could not have assеrted his homestead right as against Mrs. Roller is immaterial for two reasons: In the first place Mrs. Roller joined him in his plea of homestead, and in the request that the court protect his homestead right, and in the second place the plaintiffs do not assert any fight from or under Mrs. Roller; on the contrary, their claim is.adverse to hers, and is founded upon the proposition that, as against them, Cobеrn’s deed to Mrs. Roller conveyed nothing, and left the title in Cobern.

[2] It is true that in his plea of homesteаd Cobern did not, as perhaps he should have done, designate by metes and bounds the particular 200 acres of land he claimed as his homestead; but his plea was not ‍‌​‌​​‌‌‌​‌‌​​​​‌​‌‌‌‌‌​​‌​‌‌​​​​​​‌​​​‌​​​‌‌​‌‌‌‍excepted to fоr that reason, and he asked the court to protect his tight as to 200 acres of the land, and wе hold that he was entitled to have the judgment so framed as to accomplish that result.

As to the сontention that Mrs. Roller should be protected as an innocent purchaser, ‍‌​‌​​‌‌‌​‌‌​​​​‌​‌‌‌‌‌​​‌​‌‌​​​​​​‌​​​‌​​​‌‌​‌‌‌‍we express no opinion, and merely send the case back for another trial.

For the error indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.