80 F. 321 (5th Cir. 1897), 387, Watkins v. Little

Docket Nº:387.
Citation:80 F. 321
Case Date:February 23, 1897
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 321

80 F. 321 (5th Cir. 1897)




No. 387.

United States Court of Appeals, Fifth Circuit.

February 23, 1897

This was an action of trespass to try title, brought by J. B. Watkins against Maria F. Little. Upon the verdict of a jury, judgment was rendered partly in favor of plaintiff and otherwise for defendant, and plaintiff brings this writ of error.

The land in controversy is described in the petition of the plaintiff, to wit: 'Situated in the county of Dallas, state of Texas, 160 acres out of the William Gatlin one-third league survey, patented to the heirs of said Gatlin, January 5, 1874, patent No. 432; 120 acres of land. Also 45 acres of said survey. Also 6 acres out of the Thomas Freeman survey, patented to said Freeman, February 26, 1843, by patent No. 136, Vol. 2, located about 12 miles south, 35 degrees east, from the city of Dallas. ' Petition charged that the south, 35 degrees east, from the city of Dallas. ' Petition charged that the value of said land was $5,500; that the reasonable rental value thereof was $500 per year. Plaintiff's petition was indorsed that it was brought to try title as well as for damages. The defendant answered by general demurrer, and by plea of not guilty, and stated that on the 1st day of February, 1887, and many years prior thereto, she, being the wife of William Little, and they being citizens of the state of Texas, had lived upon the land described in plaintiff's petition as their homestead; that on the above date William Little borrowed from plaintiff, J. B. Watkins, the sum of $3,000, and he and the defendant, his wife, executed their promissory note of that date for said sum of money, payable five years after date, with interest at the rate of 6 per cent. per annum, payable semiannually, and they also executed and delivered to the said J. B. Watkins, as trustee, their deed of trust of that date, by which they conveyed to the said Watkins the land described in plaintiff's petition to secure the payment of said promissory note; that at the time of borrowing said money the said lands were actually resided upon and occupied as a rural homestead by the said William Little and the defendant, who continued to occupy and use said lands as a homestead until the death of said William Little, which occurred on the 10th day of September, 1888; since the death of her husband, the defendant has continued to occupy said lands as her homestead, and they still constitute her homestead; that after the death of said William Little the said J. B. Watkins procured Ben. Cabell, the sheriff of Dallas county, to sell said lands owned by virtue of the above-mentioned deed of trust, at which sale said J. B. Watkins became the purchaser of said lands for the sum of $1,500, and received from said substitute trustee a deed therefor. The plaintiff replied to this answer by supplemental petition, which contained a general demurrer, and a general denial, and a special plea, in substance, as follows, to wit: That, at the time of the execution of the deed of trust referred to in said answer, defendant and her husband, the said William Little, owned not only the lands described in said mortgage, but about 200 acres of other lands lying adjacent hereto, and embraced in the surveys and patents of William Freeman, William Gatlin, and the Dixon league; and that by a written statement and verbally the defendant and her husband, the said

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William Little, designated their homestead as being and situated upon one of the several tracts composing their homestead, which was not included in said deed of trust, upon which tract the dwelling house in which the said William Little and the defendant resided was situated. That, in order to procure the loan of $3,000 referred to in defendant's answer, the defendant and her husband, the said William Little, did, by an obligation in writing of date February 2, 1887, appoint the J. B. Watkins Land & Mortgage Company their agent to procure for them a loan for a term of five years, interest payable semiannually, to be secured by bond and first trust deed upon lands therein described, which are the same lands sued upon and described in plaintiff's original petition; to which said written application, as a part of it, was appended an affidavit made by the defendant and her husband, in which they stated, among other things, in substance: 'That no portion of the above-described property is our homestead, or the homestead of any other person or persons; that our homestead, upon which we reside, and to which our title is perfect, consists of about two hundred acres, the same being embraced in the surveys and patents of William Freeman, William Gatlin, and the Dixon league. ' That the said mortgage company, acting by and through its proper officers, believed that said statement made by the defendant and her husband was true, and, so believing, and knowing nothing to the contrary, the said mortgage company made the said loan to the said William Little for the benefit of Eliza Harris, who was then, and still is, a nonresident of the state of Texas, and who knew nothing of defendant's homestead claim to the land sued for. That, as an evidence of said loan, the said William Little and defendant executed and delivered to said mortgage company their real-estate mortgage coupon bond with coupons attached as specified in said bond, all payable to the said Eliza Harris, and made the said deed of trust to secure said bond, which deed of trust contained a provision that, in case of the death of said J. B. Watkins, or his refusal to act, or other legal incapacity, then the acting sheriff of the county of Dallas and the state of Texas should be the successor of the trust. That said deed of trust recited that no portion of the lands therein described was the homestead of the said William Little and defendant. That default was made in the payment of said bond, and said land was sold in pursuance of its terms, and was purchased at said sale by the plaintiff, who relied, in making said purchase, upon the statement made in the aforesaid application, and who became the purchaser of said land because he believed said statements to be true; and the bond, mortgage, and the application for the loan were attached as exhibits to plaintiff's supplemental petition. The defendant replied to plaintiff's supplemental petition by general demurrer and general denial and special allegation: That at the time of the execution of the papers aforesaid she did not know that the deed of trust involved the land now in dispute, but was led to suppose, and did suppose, that said deed of trust was upon other lands; that she did not then know that an attempt was being made to create a lien upon her homestead; that, if she had known that fact, she would not have executed said instruments; that at the time of the execution of said deed of trust and other instruments she was actually residing upon, and in peaceful possession of, said lands as her homestead. The case was tried by a jury, who returned into court a verdict in the following words and figures to wit:

'We, the jury, find for the defendant 30 acres of land north of Hutchins and Lancaster road, being part of Freeman survey, and on south side remainder of Freeman survey, including residence of said defendant and enough of the Gatlin survey which is under mortgage to make homestead of 200 acres. We also find for plaintiff the remainder of said Gatlin land on extreme south of the land in controversy, and 6 acres known as 'John Little Place' north of aforesaid road.

W. C. Henderson, Foreman.'

Upon this verdict a judgment was entered partly in favor of the plaintiff and otherwise for the defendant.

On the trial, evidence was introduced tending to prove the following facts, to wit: The plaintiff introduced in evidence the bond and mortgage or deed of trust referred to and described in the pleadings of the parties, and also the deed made by the trustee in pursuance of said deed of trust to the plaintiff,

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J. B. Watkins, for the land in controversy, as alleged in said pleadings; also that at the date of the execution of the said deed of trust the defendant was the wife of William Little, and that they owned, in a compact body, lying in Dallas county, in the state of Texas, 239 acres of land, subdivided into four tracts, of which two were situated on the Freeman survey, one containing 42 acres and the other 36 acres; and the other two on the Gatlin survey, one of which contained 45 acres and the other one 119 acres,-- a substantially accurate plat of which is here given, to wit:

(Image Omitted)

Each of said four tracts was originally prairie land, and the whole of each was in cultivation by William Little when said mortgage was executed by the defendant and William Little, her husband. When the mortgage was executed, the residence of the said Little and his wife was in the 42-acre tract next to and south of the Lancaster and Hutchins road, as represented on the plat. All of said land was then cultivated as part of his homestead by the said Little. The 170 acres included in the mortgage is designated on the plat by the cross marks, it being composed of the 119-acre tract and the most southern 45-acre tract and the most western 6 acres of the 36-acre tract. The said Little also owned on the Dixon survey a tract of 75 acres, which was situated about four miles distant from his residence, and was entirely separated from the land above described by land belonging to other people. The said 75-acre tract was timbered bottom land, subject to...

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