Texas Land & Loan Co. v. Blalock
Citation | 13 S.W. 12 |
Parties | TEXAS LAND & LOAN CO. <I>v.</I> BLALOCK <I>et al.</I> |
Decision Date | 11 February 1890 |
Court | Supreme Court of Texas |
R. Waverly Smith and Davidson & Minor, for appellant. McLemore & Campbell, for appellees.
On March 1, 1887, and for a long time prior thereto, James A. Blalock was the head of a family, consisting of himself, wife, and children, and had and at that date was with his family residing on a tract of land containing less than 200 acres. On day named, Blalock and wife executed a deed of trust on that land to secure to appellant a loan of $800, then made. Application for the loan was made by Blalock on February 24, 1887, was sworn to by him, and contained the statement This application was made on a blank form furnished by appellant, and there is conflict in the evidence as to whether the persons who conducted the negotiations were the agents of appellant or appellee. The trust-deed contains the following declaration: "The parties of the first part hereby declare that the property hereinbefore mentioned and conveyed to the party of the second part forms no part of any property by them owned, used, or claimed as exempted from forced sale under the laws of the state of Texas, and disclaim and renounce all and every claim thereto under any such law or laws, and hereby designate the following described property, to-wit: Bastrop section school land No. 14, in Burnett county, Texas, on which in good faith they reside, as their homestead, and as constituting all the property (of nature similar to that herein conveyed) used or claimed by them as exempt under said laws; and we declare that we have never used the property herein conveyed, and are not now so using it; and the aforesaid designation is made for the purpose of securing a loan on the property conveyed, with the occupancy of which the party of the second and third parts are wholly unacquainted." The property above designated as homestead at no time was ever occupied by Blalock as a home. The borrowed money not having been paid, this suit was brought to enforce its payment through foreclosure of the lien claimed through a trust-deed. Blalock and wife, the trustee, and John Markward, who had bought the property, were made defendants. In defense, Blalock and wife alleged that the land was their homestead before and at the time the trust-deed was executed, and that for this reason the lien claimed was void. Markward adopted their answer, and further alleged that on November 9, 1888, he bought the land in ignorance of any lien or claim set up by appellant.
The cause was tried without a jury, and the court admitted evidence of Mrs. Blalock, and of the officer who took her acknowledgment, tending to show that she may not have known that recitals in reference to homestead, before copied, were contained in trust-deed. If that was true, there is no evidence tending to show that the agents or officers of appellant had any knowledge or reason to believe that she did not know the contents of the paper she executed when they received it and advanced money on it, and, in the absence of some such fact, the evidence of the witness...
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