Darst v. Trammell

| Tex. | Jul 1, 1863

Moore, J.

There are several errors presented by the record in this case, for which the judgment must be .reversed.

The plaintiffs in the court below placed their right to a recovery of the land described in their petition upon two grounds. First, that a right of homestead upon the land in dispute had never been acquired by Bass, the defendant in execution, and that consequently there was a lien upon it in favor of the. plaintiff in execution, older in date and superior in right to that acquired by the defendant Trammell by his deed from Bass. Second, but if the land was in fact Bass’ homestead at the date of his deed to Trammell, they alleged that Bass had abandoned it and acquired another homestead long previous to the execution sale, and that the conveyance of the land to Trammell was a sham, and merely colorable to protect it from Bass’ creditors.

The judge in the court below evidently regarded the latter position as affording the plaintiffs no ground for a recovery. The ruling of the court in excluding evidence offered to sustain this position, made the case rest upon the single fact, whether the land was Bass’ homestead at the time he conveyed it to Trammell. This court has intimated that even a voluntary conveyance of a homestead might not be regarded fraudulent as to existing creditors. Without on the present occasion stopping to discuss or canvass the correctness of this intimation, it must be remarked that no case is believed to have extended this doctrine to the length that it must be carried to sustain the ruling in this case in the court below. The plaintiffs in their petition charged substantially^ that the conveyance to the defendant Trammell was a mere sham, for the fraudulent purpose of protecting and covering the land from Bass’ creditors ; and the testimony they offered would have tended to prove this allegation.

The superior title to the land seemed to be still in Bass, (Dunlap v. Wright, 11 Tex., 597" court="Tex." date_filed="1854-07-01" href="https://app.midpage.ai/document/dunlaps-admr-v-wright-4887958?utm_source=webapp" opinion_id="4887958">11 Tex., 597,) and it can not be said from the testimony offered, that the jury would have been unwarranted in concluding that in truth the defendant had not even an equitable interest in it. That a debtor can not by fraudulent devices or cunning expedients, retain his property against his creditors after it has been abandoned as a homestead, merely because it was secured to him as such at the time, is much too clear for argument.

Whether the.land was in fact the homestead of Bass at the date of his conveyance need not at present be discussed. Unless the evidence was more full and satisfactory, it would be an unprofitable consumption of time to attempt to lay down any rules of law that would probably prove applicable to the case, as it will appear on another trial.

There was also error in permitting the bond from Hester to Edwin Bass to be read for the purpose of proving title in the latter to the land that had been formerly occupied by Richard H. Bass, and which, as the plaintiffs insisted, was his homestead. The bond, indeed, as the case stands, was no evidence of title in any one. Hester was not shown to have had any connection with the land either by title or possession. If it had appeared that R. H. Bass occupied the land under, or by virtue of this title, it might have gone to the jury. And, from some parts of the statement of facts, it may he inferred that this was the case, but the connection between his possession and this bond was not sufficiently or clearly shown to have made it evidence in the case, and the exceptions to it should have been sustained.

The parol testimony to prove that Edwin Bass owned the land, was also improperly admitted. There was nothing in the case to take it out of the general rule, which requires the title to land to be evidenced by written instruments; and that the best evidence by which a matter is susceptible of proof is alone admissible. The judgment is reversed, and the cause remanded.

Reversed and remanded.