*1 v. JONES WAKE (233 S.W.) granting ed. From a insufficient plaintiff (No. 6561.) relief, separately and defendants et ux. JONES WARE v. appeal. Reversed and rendered. Appeals An- (Court San Texas. Civil May 11, Re- Motion On tonio. hearing, 1921. Young, F. Worth, William of Eort Rehearing Denied 1921. June pellant Ware. 29, 1921.) June Worth, Poulter, John L. Port pellants — Agreement convey- <&wkey;92,i/2 1. Trusts that McOart, McCart, pay & ance was dеbts Curtis liens and trust appellee Capps. does not violate statute. plaintiff, Where for a valuable induced, by appel- COBBS, defendants to to him. J. This suit was by lant, estate owned them in trust off liens Ware, against appellees, G. W. property, a debts he became wife, in which William interven- defendants, arrangement trusteе for ed, designated who will be the statute of violate brought intervener. appellees was suit land, claiming &wkey;>233 title thereto 2. Trusts was con- whom land —One veyed in trust warranty liable for reason of value land sold. deed from conveyed plain- Where defendants land to war- against ranty tiff in trust off liens Beavers, deed from R. N. plaintiff accepted the and trust day tive, prayed November, 1918, and, in the alterna- lands, to- sold he -was de- liable alleged on an ven- fendants for the of the lands so converted. value $2,820 against appellees, dor’s lien note for Judgment <&wkey;256(l) costs, responsive fees, court 3. —Must by jury. facts found originally which vendor’s lien was rеtained parties complained Capps, assigned none of Where Mrs. H. J. jury, findings of the court could enter no secure an and for foreclosure responsive other pleadings one of tax lien. One defense of and the facts were husband and wife substitute no other therefor. could land for in had been their where — taking Homestead Where 4. <®=ol88 living 1908; September 10, since conveyance in trust debts had been alleged overpaid, December sued on one whom he failed could not mortgage was intended to and was a foreclose land, Where defendants secure of certain homestead, to money off sums of advanced and to be advanced debts, plaintiff, by reason of liens sales account; to them or for their defendants wife, Jones and were then the owners of necessary all the debts Texas, against land various tracts of subsequent a lien created to the crea- there existed liens. abstracted hоmestead, the tion of the holder of such lien judgments, advised should who foreclosure homestead asserted ure likewise suit was intervened be sold under foreclosure of the liens homestead; appellees' himself in for -plaintiff’s foreclos- privilege operating with the to them of redeem- him. defeat sale, ing each tract to- at cost foreclosure &wkey;>47— Voluntary Parties held 5. gether with the amount of debt pleaded. bound against said land to be and sold for the or, in suit the alterna- price; the land in best available con- tive, of a one for enforcement troversy, situated voluntarily intervened and asserted a lien who in his especially of the value and three other governed by pleaded, issues aggregating tracts of defendants’ where situated valued property was a homestead. that the deed) (of date at they Motion for On appellant for borrow- were indebted to money $1,957, and — <&wkey;l Judgment indebted 175(6) Appeаl error W. Floore on John on reversal —the rendered parties. controversy —the Where, of a interest; on reversal sever- and there were accrued and al the facts found abstracted, apparent cloud the title lien which created a reformed and rendered will be property; that each of the said their said three case. tracts, small so incumbered amounts, worth Court, Appeal District Tarrant Coun- Terrell, Judge.’ than all the more incumbrances ty; Ben M. thereon; purchase sale and R. Jones Ware Suit G. W. . tracts, al- wife, interven- of several refused to in which Digests Key-Numbered topic eases seе same Indexes KEY-NUMBER <Sz=>For *2 (Tex. 233 REPORTER SOUTHWESTERN 356 nothing Oapps, appellees take same, tervener by and appellees but con- to redeem the low costs. and be taxed with veyed parties, their cross-action re- thus same to other the Oapps breaching the likewise the pudiating and making jury by a motion damage of trust 64, being in-the thereupon the court to enter a his amount difference between which motion with by appellant with out thereupon granted in entered for which on and real value of They prayed his favor the court. they prayed judgment. also complain appellees the find by ap- do of the unsold land for all ings jury. in of is remarkable It pellant the trust under fight like three-cornered contested homestead. would include the find findings, suit, satisfied with the Oapps, in and intervener, came but the two he averred set were claims for complain appellant appellees, following by prior secured ing. of the court entered prоperty pellees said, under thereupon. any sub Nor did the 39.8 to wit: On mit survey other issues those submitted 200-acre of the W. Wallace acres W. court, Ap or of those. county of lot lot 8 and pellant charges, asked two re 9, addition, city 1, Kennedy of Fort block requestibg to, along ferred the instructed verdict appellee’s In- Worth — tervener motion, was refused. line of appellant sought to hold So we are relieved through virtue of said sum approved facts other than found those appellant’s agreement parties. arises, by What now outstanding discharge all such thereup should be entered prior lien on to foreclоse intervener’s following on? The trial entered the the homestead. said land which included judgment: ap- That intervener recover from necessary exceptions, pellees with interest at denials, responsive pleadings thereto. cent, per annum, per of 10 with his the rate spe before a The casе tried costs, and a foreclosure a lien on lot No. second, first, and third To the cial issues. 8 and the north No. in 100 feet of lot 9 block issues deed Ware, city 1No. addition to the wife to G. W. from R. Jones and J. acres, Fort W. W. and also 398/io in 2,000survey. Wallace, Such foreclos conveyance, mere an absolute tended suрerior appellant’s ure and sale were or ly appellant, Ware, for the debts to secure appellees’ against appellees claim. said Jones and to due said Ware prop satisfy all debts then and erty $2,820 Oapps note, oh the H. J. controversy by 1910, thereon at the June rate after with with interest ply to the fourth found cent, per per 10 annum in and hold for December, 1912, together 65-aere, 40-acre, 125- cent, attorney’s per fees, 10 plead described acre tracts of taxes, with interest thereon at the ings. Then, issue No. cent, per per annum, with fore rate of 10 closure (a) reasonable mаrket value inferior lien on the lands acre, per $100 tract to be the 40-acre intervener; further, per (b) acre of reasonable market value appellees $6,065.32,together recover from the with $100 as the 65-acre to be the tract known per date at 10 and after (c) per market val the reаsonable cent, per annum, and to recover per known as the 125- the tract acre ue the further sum of amount of tax per acre. There was $100 tract acre cent, per paid on with 10 es said findings as to the value submitted or no issue per terest annum date. The foreclo the homestead tract or of acres 39>s/io sure was then on all certain those 40-acre tract. was the unless tracts of land situated in Tarrant adopted by These No. 8 in lot block No. 100 50 requesting court to en- a motion end of off the north lot 9 in said feet hlock in his favor for ter a city addition to the principal, of the due on the fees Fort Worth. dated June note It was decreed that recover taxes with interest and for the 3 and 50 100 paid by him on the thereon property the north end of lot No. feet Kennedy’s addition, 1, Kennedy’s with a fore- addition to the subject lien reserved in favor closure of to the intervener’s Oapps, subject H. and foreclosurе of his then lant; to the lien and debt of equitable taxes on superior appellant; in- the claims of intervener recover all his both first temporaneous is a lien on their that pellees. neous lished S port. such Worth. to the the evidence able erate county, instructions rangement merly refusing error, costs statute pass the which other the tate owned lias the trustee of By tled as to need no further citation thorities. So we determine this findings statute possessed of three certain some entire briefs, single finding. sition a senting appellees plead: ed in Tarrant “That a “That The court mortgage, This Each [1] Tex. require means оf such deed the liens, except deed. mortgage, continued deed, though appeal. proof.” Upon against appellant and The agreement liens as not in jury west half subject. based Civ. opinion voice. all of said of the While years, Hence, courts of of the law owned a each frauds. The right citation of was not a lawful App. 1Nos. security homestead, overruled parol county, respect is a upon presented, absolute on has to assume the there jury assignment to establish this disposition is most instructive on the them described by parol while by fee-simple for the the court court based undisputed way рass absolute proposition equity, agreement jury found, prior various was to inwas 71 W. day December, as follows: One tract of to the finding attacking authorities we shall him all Stafford from the contention S. the homestead describing conclusive offense tracts is a doctrine estab- the law the liens and debts no we will take each and such an its costs ,on debt of except shall be violation of the pellees’ plea, that it was issue submitted upon assignments the creation that it shall has too well settled face, power including the its *3 for a verdict title and were consider every propo- off with induced the so well set- v. contempora- $2,820note; for lot one tract of in its land situat- courts it finding face, requested the same. is no elaborate with con- effect, Stafford, W made of the is held: to hear closure on the became of au- to the maker, iABE .JONES right, A. D. valu sup- and sold for- dis- (233 the converted. The court could enter no op- ar es s.w.) paying purchased by May 4, 1915, together possession erty relief amount of indebtedness was with lawful respective alternative, than a lees includes of and gregated upon, decreed foreclosure which he was which is secured intervener, he erned, twofold; right, acre was submitted under the quired essary tions, hоmestead asserted free. closure likewise cover the the homestead therefore tervener, too, sues came the homestead that issue was not submitted as- which erty The Further, [2, [4, No issue was submitted to the acres, remove them. Bain facts, agreement. converted the same 3] The 5] In described in the deed pleaded; voluntarily and could substitute The appellees’ against appellant the law just judgment responsive off the sums all incumbered the value of the lands that were of the lands and protected against dates that sum of total of right respect of all unsold intervener, all as he found the thereby leaving the homestead homestead, for the appellant accepted to Mr. acres whose appellant, right. homestead, clouds therefrom against him, seek question, presumably besides property prayer cross-action As the v. operated claim off the debt of against appellees’ property, into findings upon acquired by Coats, only apply redeem the Capps, against appellant’s disputed. was an homestead, full its whose not as the the debts portion that, upon lands described and certain other under the was void as value, homestead, for the obligation owing awas 228 W. to his $800 ease and was as was and that same is annum from the and that only $6,495.” to the the claim of yet unsold, sets adoption defeat his. He case, by took liable to worth $100 rents; claim was not S. separate prop- of intervener. to those No issue was the trust and and as property land. That adopted ap hot sold or jury intervener, possession. Mr. off, there possession pleadings, t'o the court terms of one tract for protect the full because a fore in the the is Floore to re- appel appel there other prop- toas fore nec por- gov ag- ac- it, i(Tex. 233 SOUTHWESTERN REPORTER We cannot tlie the addition to Fort present Tex., quieted state of should the Tarrant and be issues, possession therein, which render title and therein; Article matters to -be decreed uncertain. take right, title, pos- R. S. ' reversed, cause session of controversy the other land for or in suit, remanded a new trial. as to that nothing. ' Now, purpose On Motion for сlear the adjudge basis Appellees have filed a motion rehear- appellees against ap- in favor of that, pellant, we restate stated in the the facts proper judg- case, it “be reversed and *4 opinion, as follows: appel- court,” ment this “Appellant princi- recover, prеsents entitled to as thereto and therein lant his pal, interest, $2,820 notes, fees due on the “requests their this to reconsider court $6,065.32, the sum of remanding case; reversing’ this paid further sum of property, as taxes on said deny- judgment and now and render reverse the former granting ap- recovery being $7,280.24; a total of that intervenеr pellant judgment amount due on recover of the sum of attorney’s fees, note, 50, which, charged should be principal and- interest o.f against appellees, back wife. having paid ap- “On, day December, 1912, he is on account of appel- the 20th simple, pellees’ files no mo- lees in fee owned land taxes.” and delivered to pellant, a total of 230 acres of rea- lands tion. sonably worth the sum of which was complaint by party as to either There (outside Capps debt, then incumbered which is above passfed upon question made case, provided for) for the total sum disposition of ex- court $5,900, by аppellant, disposed of of all of which was thereafter cept both demand the rendition proceeds converted rather than that it be here use benefit. own trial; neither for another returned “Deducting the sum of from the value complained having except wit, $23,000, leaves balance not have thе court below should due the sum of they $17,100. submitted “Now, conclusive, facts found as .the against stead), (appellees’ home- improperly sub- the trial court wit, $7,280.24, plus the intervener’s not ma- mitted certain issues which were (Capps’) $1,249.50,making a total entered an erroneous terial and $8,529.74,which, sum taken from if thereon. $17,100, the amount due be n difficulty, almost, presents [6] The same cross-action, before, itself $6,570.26 the sum of leave due parties accept As entered. parties.” be should between a full settlement the facts found the therefore render- be here we will appellees against appel- judg ed here in set aside therefоre is, stated, grant ment hearing the ease so as to judgment. them, with date of the to both judgment, however, judgment. This reform and sum here includes the will recovery of intervener it is
As is conceded recovery dispute raised or shall made about rights if use and appellant direct the homestead ment right, to him judgment. shall credited therefore will be that of the trial possession, and in them adjudged and homestead, here reversed rendered as herein- fore .and lot 8 and a before -set forth. of lot 9