261 S.W. 369 | Tex. Comm'n App. | 1924
D. A. Meyer and wife, Louise Meyer, owned 14 acres of land near a negro section irt the city of San Antonio, upon which they lived, and which was community property and their homestead. D. A. Meyer and one L. Jones, a negro, reached an agreement that Meyer would sell the land to Jones, and that Jones would put the land
A short time after default was made in the first semiannual payment of interest on the two vendor’s lien notes, D. A. Meyer by F. B. Meyer, next friend, and Louise Meyer brought suit to' cancel all the instruments above set out, and to declare the whole transaction of no force and effect, for the reason that the whole transaction was a simulated one for the purpose of placing a mortgage on their homestead, and for the further reason of the mental incapacity of D. A. Meyer at the time of the transaction. Defendant Donaldson denied the allegations of a simulated transaction and mental incapacity, and pleaded that the $5,000 furnished by him was used for necessaries for Meyer and his wife, and by way of cross-action pleaded for his debt evidenced by the notes that he held, and for a foreclosure of his lien. The case was submitted to the jury on special issues, and in answer to special issue No. 1 they found that the property was used and occupied by Meyer and wife as a home at the time of the conveyance by them to Henry B. Jones. In answer'to No. 2 they found that the conveyance from Meyer and wife to Jones was not a simulated and pretended sale for the purpose of creating a lien on the land, and in answer to No. 4 they found that D. A. Bleyer was of unsound mind at the time he made the deed, and in Nov 5 they found that D. A. Meyer did not have sufficient mental capacity to know and understand the nature and result of the transaction in executing the deed to Jones; to No. 6, that $2,800 of the money furnished by Donaldson was used by Meyer and wife for necessaries. It was agreed that Meyer and wife had $200 of the Donaldson money on hand at the time of the trial. The court gave judgment- canceling all the written instruments that in, any way affected the rights of D. A. Meyer and wife, and divested the title to the property out of all defendants and vested same in D. A. Meyer and wife. J. J. Donaldson was given a personal judgment against D. A. Meyer for the sum of $3,000 with 6 per cent, interest from November 4, 1918. Judgment of the trial court was affirmed by the court of Civil Appeals at San Antonio. 248 S. W. 777.
In the case of Pearson v. Cox, 71 Tex. 246, 9 S. W. 124, 10 Am. St. Rep. 740, the question was as to whether, in a suit for rescission of a sale of property, a part of which was a homestead, on the ground of insanity of the husband, the homestead should be subjected to sale to secure the purchaser for purchase money, paid by him and spent by the family of the insane person for necessaries, and Justice Walker, in discussing that issue, used the following language:
“The widow, as such, as to the homestead, had nothing in law to complain of. She had duly acknowledged the deed for it; she had little equity, for she and her children had received the benefits of the sale. As legal representatives of the deceased, they were entitled to insist upon their right to reclaim the land.’ This right must be exercised subject to the equities of the transaction; yet it exists, regardless of the fairness of the sale or of the adequacy or inadequacy of the price received. The equities of the purchaser demand that compensation be made him as well for the homestead as for the other property. The right- to compensation as against the entire tract, as determined in the decree, was only an application of the ordinary rules followed in proceedings for rescission of the contracts. This does no wrong to the complainants, for they have the price, to be returned; it restores to Cox his money when he loses the land. We conclude, therefore, that in avoiding the contract with Cox he was entitled to have his money, as well for the homestead as for the other property. The verdict, therefore, worked no injustice to appellants. The decree, however, should have ordered sale of the land upon failure to pay the one thousand seven hundred dollars and twenty-two cents into court.”
Under the facts of this case we can see no reason why Donaldson would not be entitled to the same equities to secure him in the payment of money furnished by him to Meyer in the transaction that he would have had hé been the purchaser. The whole transaction depended on Donaldson furnishing $5,000 of the purchase money, and the deal would not have been consummated if Donaldson had not furnished this money. The making of the deed to Henry B. Jones by Meyer and his wife, the execution by Henry B. Jones of the two vendor’s lien notes, and by Henry B. Jones and wife of the deed of trust to T. J. Murray, the execution by D. A. Meyer to Donaldson of the $5,000 note secured by the $10,000 vendor’s lien note, and the rental contract between Meyer and wife and L., Jones, were all executed at the same time and place. All of the instruments were in proper form and were acknowledged in due form by the parties. The two vendor’s lien notes executed by Henry B. Jones were payable to D. A. Meyer. This was a voidable and not a void transaction, and the whole of it would have been legal if Meyer had been sane. Donaldson gave up his $5,000 in good faith, upon the $10,000 note being transferred to him by Meyer as collateral, and which Meyer had the legal right to transfer except for his mental condition. There can be no question but that Meyer and wife would have to do equity as to the $200 they had on hand at the time of the trial before they could ask for a rescission of the sale, and we have been unable to find any difference in the rule as to money on hand and that spent for necessaries. We believe that under the rule stated in Pearson v. Coxi the trial court should have subjected the land to sale to secure Donaldson for the $3,-000 in the event that amount was not paid into the court within a reasonable time.
We are aware of the provisions of section 50, art. 16, of the Texas Constitution to the effect that a homestead shall be exempt from forced sale, but in this case the plaintiffs are asking the equitable powers of the court to restore to them that which they have conveyed by deed signed, and acknowledged in due form by both husband and wife, and which on its face conveys the homestead with all the solemnities required by law, and which would be absolute except for the intervention of the equitable powers of the court, and before they can invoke that power they must do equity by restoring that which they have obtained by their acts and used for necessaries.
“The term ‘necessaries’ includes those things without which the individual cannot reasonably exist, and which are usdful and suitable and necessary for his support, use, and comfort, taking into consideration his state and condition in life.”
This is the definition of “necessaries” for a case of this kind given in 22 Cyc. 592; but, if this definition should be held to be too restrictive under the facts of this case, then plaintiff in error could not be injured by it, for the reason that the burden of proof was on him to show what portion of the Donaldson money was used by Meyer and wife for necessaries. The facts of the case failed to show that $2,000 of this money was used for necessaries, even under the broadest terms that could be applied to the word “necessaries.”
We recommend that the judgment of the district court and that of the Court of Civil Appeals be reversed, and that judgment be here rendered as given by said courts, save that if plaintiffs below, that is, .Meyer and wife, fail within six months to deposit with the clerk of the district court, for benefit of defendant Donaldson, the sum of $3,000, with interest from November 4,1918 at 6 per cent., then order of sale shall issue for the sale of the land in controversy in this suit to satisfy said judgment in favor of defendant Donaldson, and costs of sale.
Judgments of the district court and the Court of Civil Appeals are reformed, as recommended by the Commission of Appeals, and as reformed are affirmed.