50 S.W.2d 440 | Tex. App. | 1932
To this plea the plaintiffs pleaded a recitation in the deed of trust alleging that the defendants were estopped thereby from claiming the homestead exemption.
The defendants' demurrer was overruled, and, upon conclusion of the evidence, the court peremptorily instructed the jury to find for the plaintiffs against W. H. Wilson for the amount due upon the note, and for a foreclosure of the trust deed lien against both W. H. Wilson and his wife, Ruby Wilson. The verdict was so returned, and judgment rendered in accordance therewith, from which judgment Wilson and wife have duly prosecuted this appeal, and have assigned error to the action of the court in overruling their demurrer and to the giving of the peremptory instruction and judgment.
Without quoting therefrom, we think it sufficient to say that the evidence undoubtedly tended to show that the 320 acres had been long used and occupied by the defendants, Wilson and wife, as their homestead, but that at the date of the execution of the note and trust deed, and for several years prior thereto, they were temporarily residing upon property in the town of Nocona, with no intent to abandon their old homestead, Wilson in the meantime cultivating and using parts of the old homestead. Indeed it is not contended by appellees that the evidence on the issue of homestead vel non is insufficient to raise the issue or to justify the peremptory instruction on that ground. The contention in behalf of appellees is that the recitation in the trust deed as a matter of law estopped Wilson and wife from asserting their homestead claim. The plaintiffs thus pleaded the estoppel: "That the defendants in this cause did in the deed of trust fully described and made a part of plaintiffs' original petition, represent to R. R. Alexander, to whom the note and deed of trust lien sued upon were given, that said 320 acres of land as described in plaintiffs' petition formed no part of their homestead by and through the following representation which were relied upon by the said R. R. Alexander contained in such deed of trust, to wit: `It is agreed and understood *441 that the above described property (which is the property described in plaintiffs' original petition) is not our homestead and not considered as any part of our homestead'" — further alleging that the defendants at the time were living on property located in the city of Nocona.
Plaintiffs offered no evidence that R. R. Alexander, at the time of the execution of the note and trust deed, was without knowledge of the long-continued occupation of the 320 acres as the homestead of Wilson and wife, and of the character of the occupation of their property in Nocona, and hence that he relied upon and was deceived by the recitation in the trust deed. Nor was there any evidence offered that the value of the land upon which the trust deed was given, exclusive of the 200 acres claimed as a homestead, was of a value less than would constitute a sufficient security for the note, and hence that R. R. Alexander probably suffered damage on account of the recitation. In other words, the plaintiffs neither alleged nor offered to prove the elements of an equitable estoppel.
In the brief of appellees, their contention is thus stated: "It was not error for the court to fail to submit the issue of estoppel to the jury for the reason that the provision of the deed of trust providing that such property constituted no part of the makers' homestead, together with the additional facts that said parties did not live on said property, constituted as a matter of law sufficient and undisputed facts to show estoppel; that said appellants were estopped as a matter of law to deny the truth of such recitals in said deed of trust" — citing the following authorities in support of their contention: Carstens v. Landrum (Tex.Com.App.)
We are of the opinion that appellees' contention as above quoted and as insisted upon in their brief and in argument before the court on submission is not sustained by the authorities quoted, which we think are clearly distinguishable from the case we have before us.
An estoppel has been defined to be "an admission or determination under circumstances of such solemnity that the law will not allow the fact so admitted or established to be afterwards drawn in question between the same parties or their privies." 3 Words and Phrases, First Series, 2495, citing Sly v. Hunt,
In that case we cited the case of Heirs of Corzine v. Williams,
The terms "deed" and "contract" are used interchangeably in the authorities relating to estoppel. Estoppel by contract is thus defined in the case of United Fidelity Life Insurance Co. v. Fowler (Tex.Civ.App.)
We have been unable to bring ourselves to the conclusion that the present case comes within the rules relating to estoppel by deed or contract. In Bigelow on Estoppel (6th Ed. by Carter) p. 362, it is said: "An estoppel by deed is a preclusion against the competent parties to avalid sealed contract, and their privies, to deny its force and effect by any evidence of inferior solemnity." (The italics are ours.) *442
Again the same author, on page 380 says: "It is essential to the estoppel by deed that the deed itself (which of course must be delivered) should be a valid instrument; a void instrument, though under seal, does not work an estoppel at law or in equity" — citing numerous cases in support of the text quoted.
Under the decisions in this state, a trust deed such as we have under consideration does not convey the legal title. At most it can operate only as a lien. See Wright v. Henderson,
Section 50 of article 16 of our State Constitution 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 pretended sales of the homestead involving any condition of defeasance shall be void."
In the case of Whitlock v. Gosson,
In 8 Words and Phrases, First Series, 7332, under the title "Void," we find a number of definitions of the term. We quote the following:
"`Void' means of illegal form; of no effect whatever. And. Law Dict. Of no legal force or effect. Webst. Dict. Chandler v. Kennedy,
"The term `void,' in its more limited sense, implies an act of no effect at all, being a nullity ab initio. Inskeep v. Lecony, 1 N.J. Law (Coxe) 111, 112."
The following is from the case of Cummings v. Powell,
"But a void act is neither a law nor a command. It is a nullity. It confers no authority. It affords no protection. Whoever seeks to enforce unconstitutional statutes or to justify under them, or to obtain immunity through them, fails in his defense and in his claim of exemption from suit." Hopkins v. Clemson Agricultural College,
While the term "void" has been frequently construed as voidable only, we think its strict technical sense as defined in the above authorities is the construction that should be given to the term "void" as used in the constitutional provision we have quoted. Indeed, we incline to the view that the quotation we have made from the trust deed under consideration, and which is relied on to establish the estoppel by appellees, is not a contract relating to the alleged homestead under consideration. The contract evidenced by the note of W. H. Wilson and wife was to pay the sum of money evidenced by their note to Alexander and to give a lien upon the lands described in the trust deed, and the quoted terms from the trust deed were a mere incident of their contract and amount to no more than a mere representation, and therefore cannot be construed as an estoppel by deed or contract in its relation to that part of the land in controversy claimed by appellants as their homestead. The trust deed is a nullity by force of the terms of the Constitution. The court below therefore erred in ruling as he did that from the face of the trust deed alone the estoppel pleaded by the appellees had been established. This conclusion finds verification in the case of Equitable Mortgage Co. v. Norton, by our Supreme Court, reported in
It follows that appellees' estoppel, if any, is not by deed or contract, but one in pais.
The elements of an estoppel in pais are thus stated in the case of Equitable Mortgage Co. v. Norton, from which we have just quoted, loc. cit. page 689 of 71 Tex.,
In Texas Jurisprudence, vol. 17, p. 144, § 15, it is said:
"No estoppel is predicable of acts or statements of the defendant where it is not shown that the conduct or position of the plaintiff has in any respect been influenced thereby to his prejudice.
"`One material element of an estoppel is that the party claiming it must have been misled by the representations or conduct of the opposite party to change his position for the worse.'
"`A party is estopped whenever he has gained an undue advantage, and has caused his adversary a loss or injury.'
"The plaintiff must establish that he will be damaged, injured or prejudiced if the defendant is not held to be estopped."
In the succeeding section 16, bottom of page 147, it is said: "The party alleging estoppel has the burden of proving the facts which give rise to estoppel or responsibility on the part of his opponent. He must establish that he will suffer loss or injury if his plea of estoppel is not sustained, and that he acted in reliance on the defendant's representations or without knowledge or notice of the facts. `Before an estoppel can arise as a matter of law, there must be certainty to every intent, and the facts alleged to constitute it are not to be taken by argument or inference.'"
In Anderson v. Walker, County Judge,
As stated in an early part of this opinion, appellees neither alleged nor proved the elements of an estoppel in pais. We finally conclude that, for the error of the court in overruling the general demurrer of appellants and in giving the peremptory instruction, the judgment below must be reversed, and the cause remanded for further proceedings, if any, not inconsistent with this opinion.
