28 S.W. 352 | Tex. App. | 1894
This was an action of trespass to try title, in which appellant, plaintiff below, claimed three tracts of land under purchase at a sale under a deed in trust executed by R.B. Reagan, May 20, 1889, to secure his note and interest coupons, of same date, to one Bartlett; and in which appellees claim as heirs of Mrs. Martha Reagan, a former wife of R.B. Reagan, upon the ground that the property, though acquired during the marriage, by deeds, one of which was to R.B. Reagan and the other to R.B. and Martha Reagan, was nevertheless the separate property of the wife, because purchased and paid for with money which belonged to her in her separate right.
The evidence was sufficient to establish these facts as to the tract containing 30 5-10 acres. It showed that $400 of her money was loaned *274 to one Mosley, and that many years afterwards this tract of land was taken in payment of about $305 of the amount loaned.
It also appeared, that of $1000, which was the consideration paid for the 200 acres tract, $700 were the money of the wife. The other $300 were borrowed from one Roach, for which the joint note of Reagan and wife was given, and the money so obtained was paid for the land. Some four or five weeks after the land had been thus paid for and acquired, the note given to Roach was paid out of funds of the wife, which had been received from Tennessee. It is claimed that from these facts it appears that the whole of the consideration for the 200 acres was paid with the wife's separate means. But this contention is contrary to the decisions of the Supreme Court. The money borrowed from Roach was community funds, the note given to him was a community debt, and when paid out of the wife's money became, perhaps, a claim in her favor against the common estate, or against her husband. The title to the land had, however, been acquired, and its status was fixed at the time of its acquisition. As $300 of the price paid for it were common funds, and $700 the separate funds of the wife, the equitable title in a three-tenths interest vested in the community estate, and seven-tenths in the wife. Heidenheimer v. McKeen,
The court below held the whole of the 200 acres to have been the separate property of the wife, and for this the judgment must be reversed.
It appears that the slaves and lands, the proceeds of which are treated as the separate property of the wife, were acquired by her after her marriage with Reagan, and while they were domiciled in Tennessee, by gift from her parents. Of course the investiture of the title was controlled by the law of that State; but as there was no evidence to show what that law was, it will be presumed to have been the same as that prevailing in this State; and under the facts stated, such money would therefore appear the separate means of the wife.
It sufficiently appears that Owens, who made the loan to Reagan and took the deed in trust under which plaintiff claims, was the agent of the lender of the money, and notice to him of appellees' claim, which is sufficiently shown, constituted notice to the original beneficiary of the deed.
But it seems that the note and mortgage were both assigned by the original holder to one Wheeler, before the trustee's sale at which plaintiff's purchase was made. No notice to Wheeler is shown. Appellees are asserting an equitable title against the holder of the legal title, and the burden is upon them to prove every fact necessary to establish the superiority of their equity. McAlpine v. Burnett,
While Bartlett, the original holder of the note and deed, may have held them subject to the equity of appellees, because of notice, it does not follow that his assignee, if he paid value and took without notice, *275
would be so affected. Jones on Mort., 834, 838, 1487; Stark v. Alford,
If the note was negotiable, it is believed that a transfer of it to a bona fide purchaser for value, before maturity, would cut off in his favor the equity asserted by appellees. Whether such would not be the effect as against such a claim as appellees', of an assignment of the mortgage to a bona fide purchaser for value, without notice, even if the note was non-negotiable, is a question we need not now decide.
If Wheeler acquired the lien on the land, freed from appellees' equity, it follows, of course, that a purchaser at the sale would take the title as against them, whether he had notice at the time of his purchase or not.
Again, the deed of trust was executed before the Act of 1889, requiring sales under such an instrument to be made at the door of the court house where the land is situated, took effect; and by its terms, the sale was to be made in Tarrant County. The record shows that a sale was made there, apparently in strict accordance with the terms of the deed, and plaintiff, through Wellington, purchased the land. It does not appear that before such sale either Wellington or plaintiff had notice of the title asserted by appellees. It is true, Reagan testified, without objection, that Bonner had stated to him that he had given notice to Wellington; and if the evidence rested here, this might, though hearsay, be treated as sufficient, inasmuch as it was not objected to. But Bonner was introduced, and appellees failed to prove by him the fact which Reagan had stated. The evidence is therefore insufficient to show notice prior to the purchase at the Fort Worth sale. By a recent decision of our Supreme Court, it is held that a power of sale given in a deed of trust, such as that in this case, to sell in another county than that where the land is situated, was not taken away by the subsequent statute; and that such a sale would pass the title. The notice given at the subsequent sale at Rusk, which seems to have been unnecessary, but precautionary, could not affect the title already vested. Building and Loan Association v. Hardy,
Because the evidence does not sustain the judgment in the particulars pointed out, the judgment for appellees for the two tracts mentioned is reversed, and the cause remanded for a new trial as to them. As to the thirty-five acres tract, the judgment is undisturbed.
Reversed and remanded. *276
