Ashe v. Yungst

• Decision Date: 09 March 1886
• Docket Number: Case No. 2219
• Citation: 65 Tex. 631
• Parties: S. S. ASHE v. HENRIETTA YUNGST ET AL.
• Court: Texas Supreme Court

65 Tex. 631

S. S. ASHE

v.HENRIETTA YUNGST ET AL.

Case No. 2219

Supreme Court of Texas.

Mar. 9, 1886.

APPEAL from Harris. Tried below before the Hon. James Masterson.

This was a suit by appellant, S. S. Ashe, against appellees, Henrietta Yungst and Alice Yungst, to remove cloud from his title to a lot of ground, and the improvements thereon, situated in the city of Houston, Texas. He alleged that he was in possession of the lot, and that the appellees were asserting a right and title to the premises, or a part thereof.

Defendants, by their guardian ad litem, pleaded general denial, and alleged that the property was the homestead of their parents, and that neither they nor their father had any other home; that, at the time of the making of the deed to the Settegasts, their mother was of unsound mind; and, that, in October, 1883, the Settegasts reconveyed the property to their father; that the transactions were not bona fide but pretended sales, made to secure a debt from their father to the Settegasts. No notice of the mortgage, or of the nature of the transaction, was charged to plaintiff. They prayed for judgment restoring to them possession of the property, or to each an undivided fourth of the property, and for partition,

Plaintiff responded, denying generally and specifically the allegations of the answer, and alleging that, at the time of the purchase, he was the owner and holder of the notes of Yungst to the Settegasts for the purchase money of the lot; that the community estate of Herman and Harriet Yungst was largely indebted, and, among other debts, owed a large amount of taxes on the lot to the state and county, and to the city of Houston, and that, to satisfy and pay off the indebtedness aforesaid, Yungst had sold the property to him in good faith, and put him in possession thereof.

The common source of title was admitted to be H. G. Pannell. Plaintiff put in evidence the following deeds, etc., to the lot in controversy:

1. Pannell to Herman Yungst, dated January 17, 1872.

2. General warranty deed from Herman and Harriet A. Yungst to W. J. Settegast and brother, duly acknowledged, dated March 15, 1882, and recorded same day-- consideration, $100 cash, and note for $300, due at eighteen months, with interest from date at ten per cent., and lien on lot retained in deed to secure the note.

3. The purchase money note of the Settegasts, indorsed in blank by Herman and Harriet A. Yungst.

4. Release to Settegast and brother of the note and lien, dated January 18, 1884, and recorded January 23, 1884, made by Geo. H. Herman, the then owner of the note.

5. Deed of special warranty from W. J. Settegast and brother to Herman Yungst, dated and recorded October 3, 1883--consideration, $45.00, and fifteen notes, of even date, for balance of purchase money, amounting in all to $310, with interest from date at ten per cent., and lien on lot retained in deed to secure the notes.

6. Assignment of these notes of Herman Yungst and lien for purchase money under the last mentioned deed, made by the Settegasts to appellant Ashe, dated September 12, 1884, and recorded March 11, 1885.

7. Fourteen notes (one having been paid by Yungst to the Settegasts)given by Yungst to the Settegasts under the repurchase, each dated October 3, 1883, bearing interest from date at ten per cent. per annum, amounting together, exclusive of interest, to $290, and reciting that they were given for purchase money of the lot, and were secured by vendor's lien thereon; which notes had been transferred by Settegast and brother, without recourse, and were marked paid in full, September 14, 1884, by S. S. Ashe.

8. Deed of general warranty from Herman Yungst to S. S. Ashe, (appellant), dated September 17, 1884, recorded March 11, 1885, the consideration recited being $682 in cash, and the payment, cancellation and discharge of the fourteen notes of Yungst to Settegast and brother, for purchase money of the lot, amounting to $318.

Mrs. Yungst died, December 2, 1882, an inmate of the lunatic asylum. The property in controversy was community property, was the homestead of Herman Yungst and wife, and was all the property they owned. Appellees were their children, the eldest, at the time of Mrs. Yungst's death, being about thirteen years old.

Yungst, the surviving husband, testified: At the time of my wife's death I was largely indebted for her care, and taxes were then due on the property. I guess I owed about $800 or $900 for debts contracted during the time my wife was ill. It was for her sickness, and for living expenses, and for medicine, and for other things.”

Ashe testified that there were state, county and city taxes due on the property, amounting to $250. Ashe bought from the surviving husband, Herman Yungst. The property was valued at from $500 to $1,000 at the time of the purchase by Ashe. He paid $682 cash, and $318 in notes, for the property.

The cause was tried before a jury, and the plaintiff asked the court to give the following charge:

“It is admitted that the lot in question was the community property of Herman Yungst and Harriet, his wife, the father and mother of defendants in this suit. If the proof shows you that the community estate of Herman and Harriet Yungst was indebted for state, county and city taxes on the lot, or otherwise, or in both ways, then the survivor, Herman Yungst, had the right to sell the same to satisfy said taxes or other debts, if any, and his conveyance of the same would convey to the purchaser both his own half interest therein and the interest of his deceased wife and her heirs. If you so find, and that Herman Yungst, the surviving husband, sold the same in good faith for the purposes above stated, then you will find for the plaintiff Ashe, even though you should find that Mrs. Yungst was not competent to make the deed to the Settegasts, of date March 15, 1882, and even though you should find that the deed was only a pretended sale, or that it was intended as a mortgage. But, if you find that the deed of March 15, 1882, was, as on its face it purports to be, a sale of the property by Yungst and wife to the Settegasts, and that Mrs. Yungst was competent to execute the same, that is, that she comprehended the nature of the transaction at the time of the acknowledgment to the notary, then the title passed by the same from Mrs. Yungst and her husband to the Settegasts; and if you so find, find for the plaintiff, without going into the inquiry as to whether there was community indebtedness or not.”

The court refused to give this charge, and failed to give any equivalent.

The jury found: 1. That the deed from Yungst and wife to Settegast was intended as security for the money paid by Settegast to Yungst. 2. That Mrs. Yungst was of unsound mind at the time of signing the paper. 3. That the consideration paid by Ashe to Yungst was $682 cash, and the payment of fourteen promissory notes of Yungst to Settegast, amounting to $318.

The court rendered judgment in favor of the plaintiff for one-half, and in favor of each of the defendants for one-fourth of the property, and partition was ordered in accordance therewith. Plaintiff appealed.

C. Anson Jones, for appellant, that the surviving husband may sell community homestead, when necessary to pay community debts, without qualifying under the statute, as such survivor, cited: Watkins v. Hall, 57 Tex. 2;Shannon v. Gray, 59 Tex. 252;Johnson v. Harrison, 48 Tex. 257;Wright v. Doherty, 50 Tex. 34;Wilson v. Helms, 59 Tex. 682, 683.

That children take no other estate in homestead than that given by the laws of descent and distribution, he cited: Constitution, art. 16, sec. 52; Shannon v. Gray, 59 Tex. 252;Grothaus v. DeLopez, 57 Tex. 672;Johnson v. Taylor, 43 Tex. 122.

That the homestead right does not survive to children, he cited: Shannon v. Gray, 59 Tex. 252;Tadlock v. Eccles, 20 Tex. 792;Brewer v. Wall, 23 Tex. 589.

That the survivor can sell the homestead, he cited: Johnson v. Taylor, 43 Tex. 121;Dawson v. Holt, 44 Tex. 178;Cordier v. Cage, 44 Tex. 535;Watkins v. Hall, 57 Tex. 2.

The survivor had power to sell to pay community debts before passage of the act of 1856, he cited: Jones v. Jones, 15 Tex. 143;Dawson v. Holt, 44 Tex. 178.

That the act of 1856 does not restrict this power, he cited: Sanger v. Moody, 60 Tex. 96;Dawson v. Holt, 44 Tex, 178;Lumpkin v. Murrell, 46 Tex. 59.

E. P. Hamblen, for appellees, on the questions discussed in the opinion, cited: Constitution, art. 16, sec. 52; R. S., arts. 2002, 2005, 2164; Davis v. McCartney, Texas Law Rev., December 1, 1885; Scott v. Cunningham, 60 Tex. 566;Reeves v. Petty, 44 Tex. 254;Putnam v. Young, 57 Tex. 464;Sossaman v. Powell, 21 Tex. 664; Cage v. Mefford, Tyler term, 1885.

STAYTON, ASSOCIATE JUSTICE.

The lot in controversy was community property, owned by Herman Yungst and his wife, and it was their homestead. Under the findings of the jury, for the present consideration of this case, it must be held that the conveyance from Yungst and wife, of date March 15, 1882, was intended simply as a mortgage to secure the payment of a sum of money then borrowed by Yungst from W. J. and J. J. Settegast.

So considered, that conveyance was inoperative without reference to whether Mrs. Yungst was sane at the time the deed of that date was executed. The reconveyance by W. J. and J. J. Settegast to Herman Yungst, of date October 3, 1883, could have no effect upon the title, and most likely was intended to give to the Settegasts a security for the money originally loaned by them in the form of purchase money notes, and thereby to cover up, so far as could be done, the real transaction between the parties.

Mrs. Yungst died on December 2, 1882, leaving minor children, who are the appellees, and the property in controversy continued to be the homestead of Yungst and his family until after the death of his wife. Yungst seems to have been indebted, at the time of the death of his wife, in a sum equal to the value of the...