Barr v. Simpson

• Decision Date: 09 January 1909
• Court: Texas Court of Appeals
• Parties: BARR et al. v. SIMPSON.<SMALL><SUP>†</SUP></SMALL>

Page 1041

117 S.W. 1041

BARR et al. v. SIMPSON.^†

Court of Civil Appeals of Texas.

January 9, 1909.

On Rehearing, March 27, 1909.

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

Action by O. H. Simpson against W. W. Barr and others. From a judgment for plaintiff, defendants appeal. Affirmed.

J. M. Moore, for appellants. P. B. Ward and Spence & Baker, for appellee.

BOOKHOUT, J.

O. H. Simpson, as plaintiff, sued W. W. Barr, as constable of Johnson county, Tex., and also J. A. Templeton, Emmett Patton, composing the firm of Templeton & Patton, and T. M. Stribling, as defendants, and sought an injunction against them to restrain a threatened sale under execution of the plaintiff's lands situated in Johnson county, Tex., comprising two separate tracts, one of 108½ acres and the other of 50 acres. Plaintiff alleged that he purchased said land on March 9, 1906, from Sarah U. Simpson, who was joined pro forma in the conveyance by her husband, R. H. Simpson; that he paid $400 cash and assumed the payment of a lien debt upon the land in the sum of $500, owing to a mortgage company of Dallas, Tex., and that, in further consideration of the conveyance of the land, he executed his own note in the sum of $1,727 to the order of the said Sarah U. Simpson; that the 108½-acre tract was the separate property of the said Sarah U. Simpson, as was also the 50-acre tract at the time of the conveyance to him; and, further, that the 50-acre tract was a part of the homestead at that time of the said Sarah U. Simpson and R. H. Simpson. Plaintiff alleged that on December 7, 1900, defendants Templeton and Patton recovered a judgment against the said R. H. Simpson and another for $173.60 in justice court, precinct No. 1, Johnson county, Tex.; that defendant Stribling has an interest in the said judgment; that on August 7, 1907, said defendants caused to be issued and placed in the hands of defendant Barr, as constable, an execution on said judgment; and that under their direction the said constable levied upon the plaintiff's lands as the property of the said R. H. Simpson, and that the constable had advertised the sale thereof for the September, 1907, sale day. He averred that the lands were not the property of the defendants in execution, nor of either of them, and denied that the said lands were the property of either of the said defendants in execution at the time of the levy thereon. He averred that Sarah U. Simpson, wife of R. H. Simpson, had purchased the said lands in controversy as her separate property, paying for same out of her separate funds, but specially averred that, while this was the fact, still the deeds to Mrs. Simpson did not limit the property to her separate individual use and benefit, but, on the contrary, the deeds while made to her would be construed as conveying the land to her as the community property of herself and her husband, R. H. Simpson; that such was the presumption arising from the form of the conveyance. Plaintiff charged that the defendants were proceeding with their levy and threatened sale of the property upon the said assumption drawn from the face of said deeds that the said lands were the community property of Sarah U. and R. H. Simpson, the latter being one of defendants in their execution, and plaintiff averred that it would require evidence dehors the record to show the facts, and that the property was, as a matter of truth, paid for with the separate money of Mrs. Simpson, and thus that the threatened sale of the lands as the property of R. H. Simpson, if made, would cast a cloud upon plaintiff's title to said lands, against which he was entitled to relief in a court of equity. Plaintiff averred that the defendants would deny, also, that the 50-acre tract was a part of the homestead of Sarah U. and R. H. Simpson at the time plaintiff purchased same, and that they would further deny that the lands involved in this suit were the separate property of said Sarah U. Simpson. He further averred that he purchased said lands for the purpose of reselling same as soon as he could find a suitable purchaser at a price satisfactory to him; that the Colonial & United States Mortgage Company held a lien debt against the 108½-acre tract, the payment of which plaintiff had assumed; that said debt would soon mature, and plaintiff would be unable to pay off such debt unless he is enabled to make his sale of the land, or, if he could not sell the land, he would be compelled to negotiate a renewal of the lien indebtedness, which he is advised he cannot do if the lands were sold under the threatened execution by the defendants. Plaintiff further averred that he was then negotiating a sale of the 108½-acre tract to a purchaser named Burks, who was ready and able to buy the land, at a price satisfactory to plaintiff, provided the title is not incumbered by the threatened sale under execution, but that if such sale were made and a hostile title thereby acquired and put of record to said lands, as defendants were about to do, plaintiff would be unable to make the sale to the said Burks, with whom he averred he had a written contract for the purchase of the land duly executed, conditioned, however, upon plaintiff being able to convey a good and marketable title to his land, which plaintiff averred he could do only in the event that the threatened execution sale was not made; that, if plaintiff's lands were sold under the said execution and levy by defendants, such sale would cast a cloud upon plaintiff's good and perfect title, and would prevent him from making the pending sale, and also that the execution sale, if made, would result in the mortgage company refusing to renew the...