Baxter v. Dear

• Decision Date: 01 January 1859
• Citation: 24 Tex. 17
• Parties: ELI H. BAXTER v. OWEN DEAR, ADMINISTRATOR, ET AL.
• Court: Texas Supreme Court

24 Tex. 17

ELI H. BAXTER

v.OWEN DEAR, ADMINISTRATOR, ET AL.

Supreme Court of Texas.

1859.

An absolute deed, and a bond by the grantee, to reconvey to the grantors, upon the payment of their notes executed to him, at the same time, is, in legal effect, only a mortgage.

The court will protect a wife in her homestead rights, if properly presented, against a creditor seeking by its decree to subject to the payment of his debt, the homestead, upon which she has joined her husband in executing a mortgage.

Married women are recognized as competent to appear in the courts as litigants; and the same rules must be applied to them, as to other parties litigating their rights.

The law requires the courts to protect the separate property of married women, where its liability to be taken in execution is in question; but in all other cases, they must be presumed to be able to assert and defend their rights.

Where a judgment has been fairly rendered against a husband and wife, with an order for the sale of land, upon which the creditor claimed a lien for the payment of his debt, the wife cannot, by subsequent suit, have such order revoked, upon the ground that it subjects the homestead to sale. 13 Tex. 71;20 Tex. 782;27 Tex. 80.

Nor will the fact that she relied upon the promises of her husband, by whom she was deceived, to have a defense made for her in the first suit, to protect her homestead rights, entitle her to relief against the judgment.

Where the judgment is against the husband and wife, after his decease, she is a proper party to a proceeding by scire facias to revive it. If the plaintiff has not made her a party, she may voluntarily appear. 13 Tex. 546.

But she cannot set up, in defense to the scire facias, a matter as to which she is concluded by the original judgment.

In a proceeding by scire facias to revive a judgment, the court follows the law, and does not exercise any peculiar equity powers.

APPEAL from Cherokee. Tried below before the Hon. Reuben A. Reeves.

This suit was brought by the appellant, against Tobias Furr, and his wife, Sarah W. Furr, upon a promissory note for $1,449, executed to him by them, in part payment, as it was alleged, for two tracts of land, one of 1,107 acres, and the other of 153 acres, set out and described in the petition. Prayer for judgment for the amount due on the notes, and for a decree for the sale of the land.

The defendants answered by a general exception, and a general denial. Subsequently, the defendant, Tobias Furr, died, and his administrator, Owen Dear, was made a defendant, by scire facias; who appeared and adopted the answer previously filed by his intestate.

The other defendant, Sarah W. Furr, afterwards filed an amended answer, in which she alleged, that she and her husband owned the two tracts of land described in the plaintiff's petition, at and previous to the execution of the note sued on, and were then, and had been for a long time, residing upon the same, having no other homestead; and that the same had continued to be their homestead, until the time of the death of her husband, and her's subsequent to that time. That previous to the execution of the note, her said husband contracted to sell the said lands to the plaintiff; and that although, by the persuasion of her husband and the plaintiff, she signed a bond to execute to him a title, upon the payment to them of the purchase money, which he agreed to give them for the said land, she did not acknowledge the said conveyance, separate and apart from her said husband, as required by law, to make the same binding upon her; but on the contrary, when the said conveyance was explained to her by the officer, she expressly refused to acknowledge the same; and that it was, thereupon, agreed upon between the said plaintiff, her husband, and herself, that her husband and herself should give plaintiff their two promissory notes, one of which was that sued on, for the amount that had been paid by the plaintiff to her husband, on the said before-mentioned contract, for said land; and that they should also execute to him a deed for the said lands, and that he should execute to them, a bond to re-convey to them the said lands, upon the payment of the said notes; the legal effect of which she charged, was only that of a mortgage upon the said land, to secure the payment of the said note.

She further alleged, that the plaintiff had brought a suit on the other of the said notes, in the district court of said county, numbered on the docket of said court, 1124, against her said husband and herself, and had recovered a judgment upon it, with an order of sale of the said land, including her homestead; that when suit was brought on the said note, her said husband promised her to interpose the proper defenses, and protect the homestead; that she relied upon his promise, and supposed this had been done, but that he failed to do so; and while he had employed competent counsel, to defend the said cause for them, he had failed to inform the said counsel of their proper defenses, and had deceived her as to it.

She further alleged, that since the death of her husband, a scire facias had been issued to Dear, as administrator of his estate, to revive the said judgment and order of sale; that the said Dear had been appointed administrator at the instance of the plaintiff, and was in his interest, and was willing to let a judgment go, in the case then pending for the sale of the homestead, and to suffer the other judgment to be revived, so that this might be done under the said former order of sale; that the land included in said order of sale, and not claimed as her homestead, was of sufficient value to satisfy the said judgment; and if the said judgment was binding, that it should be satisfied by the sale of that part of the land not including her homestead. She also insisted, that in the case now pending, the plaintiff was only entitled to an order of sale, for so much of the said land, as was not included in her homestead, and that the judgment in the other case, should be so modified and reformed, as also to exempt the homestead from sale.

To this answer the plaintiff filed a general exception, which was...