13 S.W.2d 971 | Tex. App. | 1929
This was a suit instituted by appellees against appellants upon a promissory note in the sum of $1,300, with interest and attorney's fees, and to foreclose a deed of trust lien upon certain property designated in the record as the Robbie street property. In the alternative appellees pleaded an equitable lien by subrogation on the ground that $300 of the proceeds of the deed of trust lien were used to extinguish and pay off an outstanding vendor's lien against the Robbie street property. Appellants answered that at the time of the execution by them of the deed of trust lien the Robbie street property was their homestead, and ever afterwards continued to be their homestead, and prayed for cancellation of the lien. On a trial to the court without a jury upon conclusions of fact and law judgment was entered in favor of appellees against appellants for the amount of the note and for foreclosure of the deed of trust lien, and the equitable lien, as prayed for.
As we understand appellants' brief, they have made no attack on the judgment of the trial court foreclosing the equitable lien; the facts being that at the time of the execution of the deed of trust appellants owed a vendor's lien note in the sum of $300 against the Robbie street property, which was extinguished and paid off by them with money advanced on the faith of the deed of trust lien. Therefore the judgment of the trial court foreclosing the equitable lien is affirmed, as is also the judgment awarding recovery on the note.
The remaining questions relate alone to the validity of the deed of trust lien as foreclosed against the Robbie street property. The trial court's conclusions of fact are given in full.
"2. I find that on the 27th day of January, 1926, the defendants moved onto said property at Hot Wells, leaving tenants upon the Robbie Street property.
"3. I find that $750.00 of the $1,300.00 was paid on the purchase price for the Hot Wells property; that $300.00 was paid on the purchase price of the Robbie Street property, and that some $250.00 or thereabouts, was paid for feed stuff for the stock on the Hot Wells property.
"4. I find that some time in February, 1926, Ben M. Levy began negotiations for the purchase of said $1,300.00 note; that he visited the said Robbie Street property and from his investigations found that tenants of the Wilsons were occupying the property. I find that Levy had notice of a disclaimer of the Robbie Street property as a homestead by the Wilsons in said deed of trust hereinbefore referred to, in which the Wilsons disclaimed the Robbie Street property as their homestead, and said that the Hot Wells property was, at the time of the execution of the deed of trust, their homestead. And that Ben M. and Robert J. Levy were innocent purchasers of said note for value and that they had no notice, either actual or constructive, of any claim by Wilson or his wife that said Robbie Street property was their homestead.
"5. I find that the Wilsons had purchased said Robbie Street property in 1921 and had occupied said property, up to the time of the execution of said instruments, as their homestead. That they had not received a deed up to that time, but had purchased same under a contract, and that $300.00 of the purchase price of said property was paid out of the $1,300.00 loan above referred to.
"6. I find that the Wilsons occupied the Robbie Street property up to the 27th of January, 1920, when they removed to the Hot Wells property.
"7. I find that on the date of the execution of said deed of trust and note it was the intention of W. F. Wilson and Wita Wilson to abandon the homestead on Robbie Street, *973 and assume the Hot Wells property as their homestead, the assumption of the new homestead to take place immediately after the abandonment of the old homestead, and that the disclaimer of the Robbie Street property as their homestead was to take effect upon their removal to the Hot Wells property, and their assumption of it as their homestead.
At the time of the execution of the deed of trust lien the Robbie street property was actually occupied by appellants as their homestead, and had been continuously so occupied for several years. At the time of the execution of the deed of trust lien appellants did not own the Hot Wells property, since the money advanced on the lien was used by them to make the cash payment on the Hot Wells property and the deed to the Hot Wells property had not been delivered to them prior to the execution of the deed of trust lien. The most that can be said is that the execution of the deed of trust lien and the acquisition by appellants of the Hot Wells property were simultaneous. As the Robbie street property was appellants' homestead, the Hot Wells property could not be their homestead at the same time. The rule was thus stated by our Supreme Court in Cross v. Everts,
It is true that appellants in the deed of trust affirmatively designated the Hot Wells property as their homestead, but such designation did not make it the homestead. The homestead continues the homestead as long as it is owned, occupied, and used as such. It ceases to be the homestead only when it is abandoned as such. When the use of the homestead has been abandoned, and the owners are not in actual possession, abandonment then may become a question of intent. But as against actual ownership, use, and possession, when once the property has been designated as a homestead, its abandonment as such cannot be shown by the confessed intent of the owners, no matter how strong the proof of intent may be, to abandon and acquire a new one while such ownership, use, and occupancy continue. This is the law, as announced by Archibald v. Jacobs,
In Batts v. Middlesex Banking Co.,
The facts do not show that the lien was ever validated nor that appellants were estopped to assert its invalidity. Article 16, § 50, of the state Constitution, provides that no mortgage, deed of trust, or other lien on a homestead shall ever be valid except for the purchase money therefor or improvements made thereon. Discussing this clause of the Constitution, the Commission of Appeals, in J. P. Wooten Motor Co. v. First Bank of Swenson, 281 S.W. 196, said: "It is thus seen that no mortgage upon the homestead, with the exceptions stated, `shall ever be valid.' Judge Robertson has well said: `What cannot "ever be valid," is never valid, and what is never valid, is always void.'" Inge v. Cain,
The issue of estoppel was not in the case. Appellees did nothing more in buying the note and lien than to examine the record. They found the property occupied by appellants' tenants. They made their investment on faith of the designation by appellants of the Hot Wells property as their homestead and the waiver by them of homestead rights in the Robbie street property. This designation and waiver did not constitute an estoppel. Appellees did not plead nor did they rely on any act on the part of appellants outside of the instrument itself. The instrument and its recitations did not constitute an estoppel.
In Equitable Mortgage Co. v. Norton,
Since the deed of trust was void under the Constitution, appellees were not innocent purchasers. Discussing the defense of innocent purchaser against such a lien, Judge Brown, speaking for the Supreme Court in State Bank of Chicago v. Holland,
In Washer v. Smyer,
On the foregoing conclusions the deed of trust lien pleaded by appellees was void at its inception and was never subsequently validated, and appellees were not innocent purchasers against its invalidity.
It follows that the judgment of the trial court foreclosing the deed of trust lien must be reversed, and judgment rendered on that issue in favor of appellants. In all other respects the judgment is affirmed.
Reformed and affirmed.