The findings of the jury, (1) that the land was appellees' homestead at the time they executed and delivered the instrument purporting to be an absolute deed conveying it to Knight, and (2) that that instrument was intended to operate only as a mortgage to secure money loaned by the bank to Knight and appellee W. A. Clark, were warranted by the testimony, as was also the finding of the court, involved in the judgment (article 1985, Vernon's Statutes), that the bank knew that the sale of the land to Knight was a simulated one in pursuance of a scheme to incumber appellees' homestead with a lien in violation of law. If, therefore, the court should have instructed the jury to find in appellant's favor, as he insists it should have done, it must have been because of the judgment in the bank's foreclosure suit referred to in the statement above. Const. § 50, art. 16; Bludworth v. Dudley (Tex.Civ.App.) 173 S.W. 561; Henderson v. Wilkinson (Tex.Civ.App.) 159 S.W. 1045; Insurance Co. v. Slovak (Tex.Civ.App.) 217 S.W. 200; Barnett v. Paving Co. (Tex.Com.App.) 234 S.W. 1081; Graves v. Kinney, 95 Tex. 210, 66 S.W. 293.
Appellant's contention with reference to that judgment was and is that unless and until set aside it was conclusive of any right in appellees to assert the invalidity of their deed to Knight and claim the land as their homestead; and further, that it could not be set aside in a cross-action by appellees in this suit, but must be, if at all, in an independent suit prosecuted by appellees for the purpose. The authorities, as we understand them, are to the contrary of the latter part of the contention and uphold appellees' claim of a right on sufficient grounds, sufficiently pleaded and established by competent testimony, to such relief by a cross-action in a suit like this one is. Moore v. Miller (Tex.Civ.App.) 155 S.W. 573; Patrucio v. Selkirk (Tex.Civ.App.) 160 S.W. 635; Ives v. Culton (Tex.Civ.App.) 197 S.W. 619.
In the light of authorities cited above there can be no doubt that the facts alleged and proven, to wit, that the land was appellees' homestead and that the deed to Knight operated as a mortgage only, entitled appellees to have the foreclosure set aside, as against the bank, for, as shown by testimony and as found, it must be assumed, by the trial court, the bank had full knowledge of, if it was not a party to, the scheme to incumber the homestead with a lien to secure the notes sued upon. Appellant in his official capacity succeeded to only such rights as the bank had, and therefore appellees were entitled to the same relief as against him they were entitled to as against the bank. Brady v. Cobbs (Tex.Civ.App.) 211 S.W. 802; Hall v. Bank (Tex.Civ.App.) 255 S.W. 506.
Because, as indicated by what has been said, we think the trial court did not err when he refused the request of appellant referred to, that he instruct the jury to find in his (appellant's) favor, we overrule the contentions based on such refusal. And we also overrule the contentions based on the refusal of the court to submit an issue to the jury as to estoppel on the part of appellees to assert in this suit that the land was their homestead and that they were entitled to claim it as such. We do not think such an issue was made by the testimony. Bailey v. Bailey (Tex.Civ.App.) 188 S.W. 264. To make such an issue appellant not only must have alleged, but he must have adduced testimony tending to show, the existence of facts constituting the estoppel. Howe v. O'Brien (Tex.Civ.App.) 45 S.W. 813; Lumber Co. v. Arnold (Tex.Civ.App.)139 S.W. 917. He adduced no such testimony.
Other contentions presented in appellant's brief are based on rulings of the court with reference to either the admission or the rejection of testimony. We are inclined to think none of the contentions is meritorious, but if any of them are we think the error of the court with reference to them should be treated as harmless.
The judgment is affirmed.
On Appellant's Motion for Rehearing.
Appellant insists that the testimony did not warrant a finding that the bank knew that the land in controversy was appellees' homestead and that the sale thereof to Knight was a simulated one, and therefore that we should not have assumed that the trial court found that the bank had such knowledge.
The testimony which we thought, and still think, warranted such a finding, was that of appellee W. A. Clark as follows:
"We [the witness and Knight] decided to fix the place and he would make me notes so we could borrow the money on the notes and he did so, and we got the money. We borrowed the money from the Farmers' Guaranty State Bank — from Howard's bank. Up to that time I had not talked to Mr. Howard about how to fix it so we could borrow the money on that place, but I told him when I went to get the money that we had conditionally fixed it and the notes to get the money on them; that was when we went to get the money, but before we had borrowed it. It was the understanding that I had not sold the place to Mr. Knight, but that we just made the notes to get the loan. * * * Q. What became of the $2,000 you got at the bank on those notes? A. I reckon he squandered it. I didn't see any of it. I mean that Mr. Knight got the money. We told Mr. Howard all about this when we went [to] get the money. [Carter, the attorney in asking the question, made that statement. The witness didn't state that he told him all about it]. I told him that it was a conditional sale. * * At the time the notes were given I told Mr. Howard there was no sale."
A contention vigorously urged by appellant is that we erred in holding that the testimony did not make an issue for the jury as to estoppel on the part of appellees to assert that the land was their homestead and that they were entitled to claim it as such. We do not think the holding was incorrect, but it may have been misleading, because of the failure of the writer in announcing it to state that the only matter pleaded by appellant as such an estoppel was the record in the bank's foreclosure suit. Testimony supporting that plea would not have made an issue for the jury, for the effect of that record was for the court, and not the jury, to decide. It would seem, therefore, that the holding that the testimony did not make an issue for the jury as to an estoppel was not erroneous.
But if issues for the jury as to estoppel had been made by both the pleadings and the testimony in the case, appellant's contention that the court erred when he refused to give to the jury special issues requested by him as follows should have been overruled.
(1) "Are the defendants [appellees] estopped from claiming the deed from them to Knight is and was intended as a mortgage rather than an absolute deed?"
(2) "Are the defendants estopped from setting up herein that they have title to or an interest in or claim to the property described in plaintiff's petition?"
It is plain that the issues as formulated presented mixed questions of law and fact, and for that reason should not have been submitted to the jury in any event. Davis v. White (Tex.Civ.App.) 207 S.W. 679; De Arcy v. Music Co. (Tex.Civ.App.) 208 S.W. 381; Mason v. Gantz (Tex.Civ.App.)226 S.W. 435; Oil Co. v.
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The findings of the jury, (1) that the land was appellees' homestead at the time they executed and delivered the instrument purporting to be an absolute deed conveying it to Knight, and (2) that that instrument was intended to operate only as a mortgage to secure money loaned by the bank to Knight and appellee W. A. Clark, were warranted by the testimony, as was also the finding of the court, involved in the judgment (article 1985, Vernon's Statutes), that the bank knew that the sale of the land to Knight was a simulated one in pursuance of a scheme to incumber appellees' homestead with a lien in violation of law. If, therefore, the court should have instructed the jury to find in appellant's favor, as he insists it should have done, it must have been because of the judgment in the bank's foreclosure suit referred to in the statement above. Const. § 50, art. 16; Bludworth v. Dudley (Tex.Civ.App.) 173 S.W. 561; Henderson v. Wilkinson (Tex.Civ.App.) 159 S.W. 1045; Insurance Co. v. Slovak (Tex.Civ.App.) 217 S.W. 200; Barnett v. Paving Co. (Tex.Com.App.) 234 S.W. 1081; Graves v. Kinney, 95 Tex. 210, 66 S.W. 293.
Appellant's contention with reference to that judgment was and is that unless and until set aside it was conclusive of any right in appellees to assert the invalidity of their deed to Knight and claim the land as their homestead; and further, that it could not be set aside in a cross-action by appellees in this suit, but must be, if at all, in an independent suit prosecuted by appellees for the purpose. The authorities, as we understand them, are to the contrary of the latter part of the contention and uphold appellees' claim of a right on sufficient grounds, sufficiently pleaded and established by competent testimony, to such relief by a cross-action in a suit like this one is. Moore v. Miller (Tex.Civ.App.) 155 S.W. 573; Patrucio v. Selkirk (Tex.Civ.App.) 160 S.W. 635; Ives v. Culton (Tex.Civ.App.) 197 S.W. 619.
In the light of authorities cited above there can be no doubt that the facts alleged and proven, to wit, that the land was appellees' homestead and that the deed to Knight operated as a mortgage only, entitled appellees to have the foreclosure set aside, as against the bank, for, as shown by testimony and as found, it must be assumed, by the trial court, the bank had full knowledge of, if it was not a party to, the scheme to incumber the homestead with a lien to secure the notes sued upon. Appellant in his official capacity succeeded to only such rights as the bank had, and therefore appellees were entitled to the same relief as against him they were entitled to as against the bank. Brady v. Cobbs (Tex.Civ.App.) 211 S.W. 802; Hall v. Bank (Tex.Civ.App.) 255 S.W. 506.
Because, as indicated by what has been said, we think the trial court did not err when he refused the request of appellant referred to, that he instruct the jury to find in his (appellant's) favor, we overrule the contentions based on such refusal. And we also overrule the contentions based on the refusal of the court to submit an issue to the jury as to estoppel on the part of appellees to assert in this suit that the land was their homestead and that they were entitled to claim it as such. We do not think such an issue was made by the testimony. Bailey v. Bailey (Tex.Civ.App.) 188 S.W. 264. To make such an issue appellant not only must have alleged, but he must have adduced testimony tending to show, the existence of facts constituting the estoppel. Howe v. O'Brien (Tex.Civ.App.) 45 S.W. 813; Lumber Co. v. Arnold (Tex.Civ.App.)139 S.W. 917. He adduced no such testimony.
Other contentions presented in appellant's brief are based on rulings of the court with reference to either the admission or the rejection of testimony. We are inclined to think none of the contentions is meritorious, but if any of them are we think the error of the court with reference to them should be treated as harmless.
The judgment is affirmed.
On Appellant's Motion for Rehearing.
Appellant insists that the testimony did not warrant a finding that the bank knew that the land in controversy was appellees' homestead and that the sale thereof to Knight was a simulated one, and therefore that we should not have assumed that the trial court found that the bank had such knowledge.
The testimony which we thought, and still think, warranted such a finding, was that of appellee W. A. Clark as follows:
"We [the witness and Knight] decided to fix the place and he would make me notes so we could borrow the money on the notes and he did so, and we got the money. We borrowed the money from the Farmers' Guaranty State Bank — from Howard's bank. Up to that time I had not talked to Mr. Howard about how to fix it so we could borrow the money on that place, but I told him when I went to get the money that we had conditionally fixed it and the notes to get the money on them; that was when we went to get the money, but before we had borrowed it. It was the understanding that I had not sold the place to Mr. Knight, but that we just made the notes to get the loan. * * * Q. What became of the $2,000 you got at the bank on those notes? A. I reckon he squandered it. I didn't see any of it. I mean that Mr. Knight got the money. We told Mr. Howard all about this when we went [to] get the money. [Carter, the attorney in asking the question, made that statement. The witness didn't state that he told him all about it]. I told him that it was a conditional sale. * * At the time the notes were given I told Mr. Howard there was no sale."
A contention vigorously urged by appellant is that we erred in holding that the testimony did not make an issue for the jury as to estoppel on the part of appellees to assert that the land was their homestead and that they were entitled to claim it as such. We do not think the holding was incorrect, but it may have been misleading, because of the failure of the writer in announcing it to state that the only matter pleaded by appellant as such an estoppel was the record in the bank's foreclosure suit. Testimony supporting that plea would not have made an issue for the jury, for the effect of that record was for the court, and not the jury, to decide. It would seem, therefore, that the holding that the testimony did not make an issue for the jury as to an estoppel was not erroneous.
But if issues for the jury as to estoppel had been made by both the pleadings and the testimony in the case, appellant's contention that the court erred when he refused to give to the jury special issues requested by him as follows should have been overruled.
(1) "Are the defendants [appellees] estopped from claiming the deed from them to Knight is and was intended as a mortgage rather than an absolute deed?"
(2) "Are the defendants estopped from setting up herein that they have title to or an interest in or claim to the property described in plaintiff's petition?"
It is plain that the issues as formulated presented mixed questions of law and fact, and for that reason should not have been submitted to the jury in any event. Davis v. White (Tex.Civ.App.) 207 S.W. 679; De Arcy v. Music Co. (Tex.Civ.App.) 208 S.W. 381; Mason v. Gantz (Tex.Civ.App.)226 S.W. 435; Oil Co. v. Howard (Tex.Civ.App.) 256 S.W. 340; Watson v. Patrick (Tex.Civ.App.) 174 S.W. 632.
The theory on which the judgment was affirmed was that it appeared from findings made by the jury and a finding the court was authorized to make, and which it was therefore assumed he did make (1) that the land was appellees' homestead at the time they conveyed it to Knight; (2) that the sale to Knight was a simulated one in pursuance of a scheme to create a lien on the homestead to secure a loan of money made by the bank to Knight and appellee W. A. Clark; and (3) that the bank at the time it made the loan, at the time it obtained the judgment in its foreclosure suit, and at the time it had the land sold under the judgment, knew that the land was appellees' homestead and knew that the sale thereof to Knight was a pretended one for the purpose of securing said loan.
There can be no doubt that appellees on the findings of the jury were entitled to the relief they obtained, if they had a right to assert as against the bank and its representative that the land was their homestead and that the conveyance thereof to Knight operated as a mortgage only. And in view of the finding warranted by the testimony, and which it is therefore assumed the court made, that the bank knew that the land was appellees' homestead and that the sale to Knight was a pretended one, there can be no doubt that appellees had such a right unless the judgment in the bank's foreclosure suit operated to deprive them of it. We were of the opinion that the bank, having knowledge of the facts which rendered the conveyance to Knight void, was in no better position after it obtained the judgment and sold the land thereunder than it was in before it obtained the judgment. To hold otherwise, it seemed to us, would be to ignore the inhibition in the Constitution against creating a lien on a homestead (except for purposes specified, not including the one involved here), and the declaration therein that "all pretended sales of the homestead involving any condition of defeasance shall be void." We did not and do not think it ought to be held that the parties could use the courts as a means to accomplish what the Constitution denounced, and by a judgment validate void transactions they had engaged in. If the rule as to the conclusiveness of judgments applied in ordinary cases can be invoked in this kind of a case, the inhibition in the Constitution intended to protect the homestead from sale for indebtedness of its owner cannot be relied upon to always accomplish its purpose.
But we do not think if the rule should be applied in this case its application would require a reversal of the judgment, for the testimony went farther than to show that the land was homestead, that the sale to Knight
was a simulated one, and that the bank knew it. Appellee W. A. Clark testified that Howard, the bank's president, took up with him the matter of paying the Knight notes, agreed to "fix it in four notes," and that he should have the place back, and then went with him to Holloway, the bank's attorney, stating to Holloway that "he [Howard] wanted to fix it up to keep him [Clark] out of trouble and maybe out of the pen." What Howard thought Clark had done which was likely to get him into trouble and may be into the penitentiary was not shown by the testimony. Clark testified further that Holloway said a suit would be necessary to get the matter straight. He testified, further, that both Howard and Holloway asked him not to contest the suit. And he testified further that after the land was sold under the judgment the bank obtained in the suit he "offered to pay the original debt and the interest on it," and that "they refused to let him do it." Mrs. Clark testified that Howard came to her home and talked to her about the indebtedness he claimed against the land, and that thereafter she consulted with Mr. Norman, an attorney, as to her rights in the matter, and employed him to represent her. Mr. Norman, she said, directed her to "bring the citation to him when it was served on her." When the citation in the suit was served on her, she did not take it to Mr. Norman, however, "because," she said, quoting:
"I was afraid that they would hurt my husband; they said they would send him to the pen and claimed that he had used the money under false pretense. Several of them claimed that he did. My husband repeated a conversation he had with Mr. Howard and Mr. Holloway about this matter. * * * I don't hardly know what my husband said about them sending him to the pen; he told me it would save him trouble for me not to contest the suit, and I think he said they would send him to the pen if I did. He said they promised him they would give him a deed back in thirty days if we didn't appear and contest the suit, and if he did they would send him to the pen. That was the reason I didn't come and bring the citation to Mr. Norman and let the suit go by default and at the time the judgment was made and the sale occurred I was acting on that fear and promise. If it had not been for those two things I would have been down here to contest it; I had already made arrangements with Mr. Norman about the fee."
Mr. Norman testified that Mrs. Clark arranged with him to defend the suit, and that he told her to bring him all the papers when she was served with a citation. He said she did not bring him the citation, and he did not know the suit had been filed until after the term of court at which the judgment was rendered commenced. He said, further, that he then stated to Holloway, the bank's attorney, that he would file an answer to the suit for appellees, and that Holloway replied that "it was not necessary — that Mr. Clark had been to see him and that they had reached an agreement in the matter."
We think the testimony referred to warranted a finding that the bank practiced fraud on appellees which entitled them to attack the judgment as they did, and therefore that it should be assumed in support of the judgment that the court made such a finding.
The motion is overruled.