73 Tex. 108 | Tex. | 1889
This action was brought by appellee to enforce the payment of notes executed to him by J. P. O’Shaughnessy, which he claims were executed for certain property sold by him to the maker of the notes on which he seeks to enforce a vendor’s lien evidenced by a trust deed.
The defendants alleged that on April 9, 1886, and for a long time prior thereto, the property on which the lien is claimed was their homestead, and that while so occupied by them a fictitious sale was made through a power of attorney executed by both husband and wife, whereby the title was apparently vested in appellee. They claim, however, that this was but a part of a transaction through which the appellee intended only to secure a lien by way of mortgage to secure the payment of a loan of $1800 made by appellee to the husband.
The deed made to appellee bears date April 9, 1886, and was acknowledged on the next day. Appellee made a deed reconveying the same property to J. P. O’Shaughnessy, which bears date April 10, 1886, and was acknowledged the same day.
The deed to appellee purports to have been made in consideration of 84000 in hand paid, while that from him purports to be on same consideration, of which it recites $2200 paid and the balance ($1800) secured by four promissory notes executed by James P. O’Shaughnessy to appellee, bearing 12 per cent interest per annum. Of these are the notes sued upon.
The testimony offered for the defendants shows clearly that the whole transaction, while assuming the form of an absolute sale of the home-, stead, was intended and understood by appellee, James P. O’Shaughnessy, and the attorney who negotiated the transaction, as but a means whereby a loan of $1800 by appellee to O’Shaughnessy should be secured, of all of which Mrs. O’Shaughnessy was kept ignorant.
The testimony for appellee tends to show that the sale of the homestead was real, but it develops such facts as are inconsistent with such a conclusion.
The Constitution of this State provides that “no mortgage, trust deed, or other lien on the homestead shall ever be valid except for the purchase money therefor, or improvements made thereon, as hereinbefore provided, whether such mortgage or trust deed or other lien shall have been created by the husband alone or together with his wife, and all pre
We have given all the evidence in this cause a careful consideration,, and while in view of the fact that the judgment will be reversed we feel that it would be improper to discuss in detail the evidence, we feel compelled to hold that the direct and circumstantial evidence offered is such as to forbid the affirmance of the judgment of the court below, and foi" this reason its judgment will be reversed and the cause remanded.
Reversed and remanded.
Delivered February 26, 1889.
