Logan v. Aiken

et al. et al. v. AIKEN LOGAN

No. 10252. Appeals Texas. Civil

Court of Antonio. San 30, 1938.

Nov.

Rehearing Denied Jan. Rice, & all S. Benton Davies Rice Antonio, appellant.

San Moursund, Steger, Mour- Ball, Church & Early, E. Ter- Bergstrom, sund & L. Clemens, rell, Davis, An- Hall & of San all appellees. tonio, for SLATTON, Justice. joined pro by her forma

husband, brought this suit try trespass an action of the form of in title re- Frazer others to against E. J. north of Sur- cover land described as the ½ Hays B. vey No. Section Robert as- Augustine Survey, situ- signee Chavez County, By Texas. in Bexar ated sought to a certain pleading was cancel apparently existing and liens deed such land because nonjoinder of alleged Mary A. such land was during all period which time the and liens deed attempted placed executed and to be were upon the land. others answered that the estate of in suit was deed from him was made Logan and that a delivered while the liv- land, ing acknowledged by A. Lo- signed and placed vendee of the gan; bank, which land valid liens to upon the value, no- purchased for without or purchaser Logans. wise, then in such case the any homestead tice of shall purchasers He such remainder estate lien. foreclosure of his sought Frazer also pos- and up- immediate use Logans be entitled pleaded acts various said premises session of such title to and all against the asserted which he on Logans by is ordered land after such time. And it invalidity lien be- of his claim is- being homestead. be property the Court that the order sued under sale to of the cause not have this decree shall jury to a submitted cause was The force or of an immediate Writ effect trial issues, upon which through ” * * * premises. Possession of said Fra- favor of judgment in entered a court judgment notwith- moved David (vendee of zer James verdict, standing Mary overruled. which was others, Logan fore- and Logan) David I. I. Logan judgment upon A. moved for against the deed of trust closing the verdict, part granted which and was in following re- subject suit, in land part parties mo- overruled. Both filed judgment: in the contained strictions tions for new trial. motions were Said Court, considered having “And Mary Logan appeals and overruled. A. finding from and the Court Jury’s verdict assigns Frazer cross record is error. The undisputed evi- from the verdict and said here without a statement of facts. land, sub- the 160 acres of dence that suit, herein- which is this ject matter of Mary Logan A. reform the se^ks described, January on was after and at all by court, judgment entered trial thereafter, and pertinent times rights her prop restricts homestead Logan and I. of David homestead now the erty suit, urges having chil- Logan, their wife, Mary A. his dren; property found the be the homestead been such involved, Logans all at material times by purposes use continuous joined she having time, though family during all of such said by Aiken, ance her husband and is the property was such having no Lo- the gans pel against found of the acts Logan. David I. property and estate of justify estop- which in law would Logan did since Further them, a she was entitled to mere- but in the deed to join judgment in favor of homestead in same, acknowledged the ly land, subscribed free and clear of and the the liens deed opinion that said Court the was and Logan from David I. Aiken. to James conveyance insofar as is void as It seems to be conceded that the title to family is con- homestead suit the land in was the estate home- cerned, insofar as it Logan. However, law, I. affects David under the be by A. successfully character and use may stead the claim of homestead Logan, husband, I. David by Logan. 22 thereto asserted family members of constituent par. 166,page 239. Tex.Jur. However, Court question. premises being While the in suit was a covenant finds that said deed further family as a used void, wholly warranty but is not general of should be a time and' living only af- insofar as held void land David I. exe- occupancy of use and the homestead fects deed to cuted a for a recited consideration of Six the land to James Mary'A. Logan, property by David I. 'said Thou- members of their constituent the. Dollars, Mary ap- did not sand family. shortly as pear but therefore, Court is, ordered acknowledged “It signed and thereafter land above described the estate The found that on the same. date of sale may be sold under order deed from the Aikin the estate which shall re- only the remainder Lo- use of the the home- termination of after open, main was not visible or obvious. gan and use of said land on character stead found at the of such jury also date Logan, Mary part material times the deed and other parties possess- members of their fam- constituent representing the interested and ily, family they put such shall as would have that as have ed reasonably enjoyment person quiet prudent upon inquiry use as peaceable ownership extent of the But the homestead use the nature the if thereof. land, that said at- shall hereafter character inquiries. torney pursue such failed abandonment or. other- terminated held opportunities, court findings “Having trial Under these 175]: prudence the deed judgment, which himself, as shall avail shown dictates that he will inoperative as to the homestead one who has so omitted to do deny valid not be heard to a Mrs. had notice that he separate estate the title which was fact of the was the existence of which he have put upon Thus, the We thus inquiry.” of David shown that the husband. under the may be estab- jury, through his finding homestead of the Frazer property com- upon belonging agent lished charged knowledge was with the wife, munity or of the husband the homestead claim of his the wife. estoppel estate of the husband or the claim of fails was because there is involved being This true the deed here very important the de- absent element of Hullum, by Stallings ruled the case of ception. Wilson, Shear Co. v. Tex.Com. Supreme 431, 2, 89 by App., 35 S.W. 292 531, the S.W. on addi- Court; only being opinion, the distinction tional 294 S.W. 843. community, property involved there was Pomeroy Mr. states the follows: rule as being present case the concerning facts “The truth these material separate property the husband. the party unknown to the must be other claim- only ing estoppel, the benefit of the at give If we effect to Constitutional our the time of the conduct which amounts to statutory the governing restrictions representation concealment, a or also but family log- no homestead, alienation ical reason the upon when at the time the acted conduct is suggested support differ- to a by him. the time acted such If at when he Stallings holding ent than was made the truth, knowledge of party the or had had supra, simply case because to title by dili- means which with reasonable the gence lies in the homestead estate of acquire knowledge he so could husband. negligence part to it would be on his that Frazer insists that A. means, by ignorant not using remain he those estopped to claim to homestead by re- cannot claim have to been misled signed land in suit because she and ac upon representations conceal- lying ment.” knowledged the deed from to Pom.Eq.Jur., Edition, 2 4th § upon finding that that It contended Frazer attorney time of making at the note se Logan, by signing and acknowl by the lien which cured seeks to from edging the deed David foreclose, upon relied ac separate es Aiken to the husband’s knowledgment to the deed James of the family residing while the was not tate have and would not made such loan had as their such thereon ratified opinion such deed. our not been It is deed, foreclosing and the court erred in part Mary A. that conduct subject to the Lo- lien homestead of the asserting estop Logan does not her from gans. strongly upon He relies the author property, Stone, Sledge al. v. title et ity 26, Anderson, of Grissom v. 125 Tex. al., 49, 1068, 26 et 87 Tex. 47 Am.St. S.W. 619, Supreme 79 S.W.2d Court. There Supreme 65, may Rep. Court. be true the acts construed a ratification that deed from gas were oil and lease in accordance made being Aiken executed time when having with law aliena reference to the homestead use was appears property. tion- of homestead Such visible, open, ordi nor obvious would following language, [page to-wit estop Logan asserting narily and wife from contrary, recognition “On 623]: the lease rights lien made in deeds executed was placed thereafter the land. But law, conformity them in strict finding of the of the the face accepted.” In arising benefits therefrom attorney, was the bank agent who of the present case did not Frazer, possessed sufficient required by law, join in the person prudent upon inquiry and put merely signed acknowledged it. pursue failed that in than more alien law exacts consent quiry would have disclosed home homestead. R. See Art. ation Logans, we are of stead opinion against C.S. 1925. estoppel Frazer’s claim of urged cannot be sustained. The next contention Burks, proposition, we through In of Paris fourth the case Grocer Co. v. his [page quote: being the record S.W. it is said “It established 101 Tex. Appellant (which executed invalid her husband at that time were Aiken acknowledged Logans, as to the because Frazer at purchase they living charged when time of off the his was controversy Logans, according and that the use of the homestead claim of the family support findings)' his to a time when be- open, obvious, was not at the came insolvent pay visible and unable the note. time of and the Under the execution the deed these facts Frazer invoke the canno~t making estoppel. place, of the loan to the doctrine of In first he knew, Sam Bank & was Houston State Trust Com- not misled. He or should have pany, known, facts, made for finding the deed according jury. plea the accommodation of Aiken Da- Flis lacks but that Logan Case, pass deception. vid I. intended supra. that the title to Shear doc- The attorney separate property, applied estoppel protect his that trine of and the is to those Houston, for Sam & Trust State Bank who are innocent of the facts are mis- and Company relied David led. on the fact that One who knows the facts cannot ef- Appellant fectively say and had the executed that he has been deceived. 5, January 1923, Eylar deed dated the Thus the case Eylar, of v. 60 Tex. $5,000.00 315, loan would made not have been in which cases the doctrine es- of attorney toppel to Bank’s applied applicable. had the been has are not not seen the the 22 p. 171, and that before In said: is § Tex.Jur. delivery appears execution and of extension “If it he the knowledge acted agreement Da- Aiken in 1928 notice of the facts he is not entitled to have represented vid I. said and applied as the land to the satisfaction of his attorney fact appellee, E. obligation.” Bartell, See Adams v. 46 Tex. J. Frazer, were tenants that he his wife Civ.App. 349, refused; 102 S.’W. writ Aiken; Astin, of and that his Tex.Com.App., be- Martin v. 295 S.W. 584. statement, lieved relied on such agreement the extension would not Finally, it is contended Frazer that the have been made had the statement not been motion, trial court erred overruling his made and that James verdict, notwithstanding the because the solvent Aiken was in 1928 of at the time appellants pleaded upon had not facts the execution of agreement, the extension which the answers of the in which insolvent at the time the note ma- Frazer was knowledge found to have of according tured the to terms of the exten- the homestead claim of the agreement, Appellant sion estopped question, material times in therefore such a matter of as law from denying the valid- answers of should have dis been ity of Appellee the deed of trust lien of regarded judgment the court and ren Frazer; therefore, E. Court erred J. challenge dered favor of Frazer. The of foreclosing the lien Appellee of E. Fra- J. must answers of subject zer to the termination of home- pleadings be limited reason for the stead character and use of the land on the that no statement of facts is in the record part Logan, Mary plead before We have examined us. and the constituent members of fam- their ings hold that in the absence of ily.” pleadings exception are sufficient to ju support challenged answers of the presented by prop The facts this ry, would not trial court have been upon plea estoppel. his osition based are disregard such answers for authorized to purchase At his time of the note sup pleadings insufficient reason sought foreclosed, lien to be had Prather, v. port See Osborne them. homestead claim of the 613; Mayfield 18 S.W. Av and, seen, Logans, we have as was not enti Adm’r, 11 Tex. eritt’s tled to assert doctrine of opinion part is the Court’s subsequent pur Logans, to his fore- judgment, established and chase, occupying suit, closed a premises as and the deed reversed, and should be in the condition as erroneous aforesaid from appeared in the be reformed so to al- judgment chain he should as title, representation Máry Lo low the homestead liens; clear gan his wife were free and of all tenants of respects judgment granted to Aiken an extension of other his note in all de- therein ad- title to the land husband of his The costs are affirmed. court is trial conveyance capable permit scribed. To against appellees. judged explanation the effect to to have and affirmed. Reformed convey the land cal- the wife’s estate in pur- culated, only to defeat an obvious Rehearing. On Motion statute, pose open door imposition fraud.” has Frazer, filed appellee, re rehearing motion for able acknowledgment taking The officer consideration our serious ceived explain could not attempt clarify the ex us to prompts her considera- under con more than : “The law exacts pression pass tion would title homestead of homestead. alienation of the for the sent appear because did she more 1300, R.C.S. 1925.” It Art. therein, See required which is under say Article that under said accurate After a consideration the statute. careful required in the consent statute the questions presented interesting of 'the wife alienation of the appellees’ rehearing, arewe joining consists of the wife’s ance, opinion original disposi- that our sep thereto, tion this action must sustained. thereof, acknowledgment taken arate rehearing is overruled. proper officer. Thus certified before statutory element present case Conveyance missing, hence joinder conveyance the home ineffectual as holding This in conflict with stead. Miller, the case Ochoa Supreme State wherein the of this Court signature acknowledg held the wife’s ment of husband to deed to separate sufficient to' show real JOSKE BROS. CO. v. EDDINGSTON al. et joined with his wife in the he had. ance. The husband has no estate in the No. 3336. property, real wife’s Appeals Court of Civil of Texas. wife an estate even Beaumont. sepa though homestead is Moreover, property of rate the husband. Dec. 1938. requirement 6605-6608, under Arts. Rehearing acknowledgment wo of a married Jan. Denied man, particularly portion says conveyance shall then and there explained fully to her officer. apparent in a of homestead separate prop situated erty of the husband in which the wife does appear as a the no tary taking acknowledgment, or officer explain could not to her she was con veying sepa estate in such property. Judge rate Gaines said in the Sledge Case, supra, 26 S.W. 1070: “The presumed

officer is anything know the title to the land which the instru purports convey. ment Could he ex legal plain to her that effect of her acknowledgment pass the title to the es tate, unless he knew that the be her, longed to to her husband? and not would It duty seem he fulfill his would entire particular by in that explaining to. a conveyance wife that the deed was

Case Details

Case Name: Logan v. Aiken

Court Name: Court of Appeals of Texas

Date Published: Nov 30, 1938

Citation: 123 S.W.2d 401

Docket Number: No. 10252.

Court Abbreviation: Tex. App.