Knowles v. Waddell Inv. Co.
280 S.W. 885
Tex. App.
1926
Check Treatment
WILLSON, C. J.

(after stating the facts as above). The judgment is not erroneous if the Lamar county land was not appellants’ homestead at the time (to wit, June 25, 1918) they executed the note and trust deed sued upon; and that land was not then their homestead if, as the trial court found to be the case, they had permanently abandoned its use as such and had moved to the state of Oklahoma. The contention here is that it apeared that appellants were actually residing upon and using the Lamar county land as their home at said time, and that the finding of the trial court to the contrary was not warranted by the testimony.

We think the contention should be sustained, notwithstanding the testimony of the witnesses Rees and Jones (who, as appellee’s agents, acted for it in making the loan evidenced by said note and trust deed) that appellants declared to them, at the time they executed said instruments, that they had moved to and were living in said state of Oklahoma; and notwithstanding the fact that on the day the loan was made to them (to wit, said June 25) appellants appeared before a notary public in Lamar county and swore that they had left the Lamar county land and had “moved (quoting) from Texas into Oklahoma,” onto land they intended to make “their permanent home”; for the other testimony in the case was overwhelmingly to the effect that on said June 25 appellants were still residing upon and using the Lamar county land as their homestead, and that they continued to do so until July 23, 1918. Kearby v. Cox (Tex. Com. App.) 211 S. W. 932; Little v. Baker (Tex. Sup.) 11 S. W. 549; Ward v. Baker (Tex. Civ. App.) 135 S. W. 620; Pierce v. Langston (Tex. Civ. App.) 193 S. W. 745; Bank v. Farmer (Tex. Civ. App.) 157 S. W. 283; Hudgins v. Thompson, 109 Tex. 433, 211 S. W. 586.

So, as we view the record, the case must be treated as one in which it appeared that the Lamar county land was appellants’ homestead, and the trust deed therefore void by force of section 50 of article 16 of the Constitution.

In that view, is the judgment erroneous? We think not. The Bannings, having assumed the payment of the note sued upon, were not in a position to defend against the recovery had against them (Dry Goods Co. v. Bank [Tex. Com. App.] 231 S. W. 386), and they did not attempt to do so. And so far as the record shows to the contrary, appellants at the time of the trial had no title to nor interest in the Lamar county land, and therefore were in no better position than the Bannings were in to defend against the recovery had against them. It is true the deed appellants made to the Bannings contained a covenant warranting the title to the land, but it was plain, if the existence of the trust deed was a breach of the covenant, that appellants were not therefore liable to the Bannings, for they undertook themselves to remove the incumbrance, if it was one, when they assumed the payment of the indebtedness secured by the trustee. It is also true that when appellants sold the land to the Bannings, September 23, 1919, they reserved a lien thereon to secure the payment of the promissory note made to them for a part of the purchase price of the land, but there was nothing in the pleadings nor the testimony indicating that the note was not paid January 1, 1925, when it became due.

Assuming, as we think we ought to, that appellants had parted with their title to the Lamar county land and all their right to and interest in it, we see no reason why they, any more than others of the general public, should be heard to assert the invalidity of the trust deed and defend against the foreclosure of it sought by appellee. They were not, it seems, any more than others of said public who had no interest in the land, in a position to be either injured or benefited by such foreclosure.

The judgment is affirmed.