Stringer v. Swenson

63 Tex. 7, 1884 Tex. LEXIS 319

• Court: Texas Supreme Court
• Decided: December 16, 1884
• Docket: Case No. 1618
• Status: Published

Opinion

Delany, J. Com. App.

Many of the assignments of error are so vague that we will not consider them.

There is no merit in the exceptions of the defendants to the plaintiff’s petition.

Ifc was matter of no consequence whether Mrs. Stringer signed the note or not, or whether she was personally bound for the debt.

PTo personal judgment was asked against her; and she was made a party to the suit only because she claimed an interest in the property upon which the plaintiff was endeavoring to enforce a lien.

PTor is there any merit in her objections to the certificate of the notary who took her acknowledgment to the deed of trust.

In the case of Coombes v. Thomas, 57 Tex., 321, a certificate almost exactly like the one now before us was held sufficient.

The court below finds that there was no fraud or undue influence practiced upon Mrs. Stringer to procure her signature to the deed.

If there was anything of the sort, there is not the slightest evidence that either the plaintiff or his agent was aware of the fact. Pierce v. Fort, 60 Tex., 464; Davis v. Kennedy, 58 Tex., 517, and cases cited.

The only important question in the case is this: Was the property, at the date of the deed of trust (March 5, 1877), a part of the homestead of Stringer and his wife, or -was it used by them as such ? If it was a part of the homestead, then it would seem that the deed -was not binding on the defendants, notwithstanding the declaration contained in the deed that the property was not a part of the homestead. Medlenka v. Downing, 59 Tex., 32.

At that time the property was entirely separated by a fence from the other part of the lot. It was rented out, and the circumstances seem to show that the intention of the defendants was to rent it permanently.

Besides, in 1875, the defendants had executed to other parties a deed of trust upon this same property, in which they declared that they had abandoned their homestead rights in it. This deed was immediately recorded in Travis county.

Under these circumstances, our opinion is that Stringer and wife cannot be heard to claim that the property is exempt. Ruhl v. Kauffman & Bunge, decided at the present term.

The judgment should be affirmed.

Affirmed.

[Opinion adopted December 16, 1884.]