Brothers v. Stewart

• Citation: 65 Tex. 321
• Decision Date: 22 January 1886
• Docket Number: Case No. 2134.
• Parties: HEIDENHEIMER BROS. v. DENNIS STEWART AND WIFE.
• Court: Supreme Court of Texas

65 Tex. 321

HEIDENHEIMER BROS.

v.DENNIS STEWART AND WIFE.

Case No. 2134.

Supreme Court of Texas.

Jan. 22, 1886.

APPEAL from Fayette. Tried below before the Hon. R. H. Phelps, special judge.

Heidenheimer Bros., as indorsees of one Alexander, brought this suit in the district court of Fayette county, against Dennis Stewart, to recover amount due on a negotiable promissory note executed by the latter, and to foreclose a lien on a certain tract of land in that county, retained, as security for the note, in a deed from Alexander to Stewart for the land. Pending the suit, Cary Ann Stewart was made a party defendant.

Dennis Stewart and Cary Ann Stewart are husband and wife, and had been such for some time previous to the execution of the note declared on in this suit, and the land by which the note is secured, was then, and still is, their homestead. Stewart being indebted, on open account, to Alexander, in an amount equal to that expressed in the note, and being desirous of securing its payment, conveyed this land to Alexander, his wife joining him in the deed; and Alexander on the same day reconveyed the land to Stewart, expressing in his deed the consideration therefor to be $755 cash and the note sued on, which was at the same time made and delivered to him by Stewart. Alexander knew that the defendants were husband and wife, and that the property was their homestead; and all this was done in pursuance of a distinct understanding between the three, and in order to conceal the true character of the transaction. No consideration passed from Alexander to Stewart and his wife for their deed to him, though one was expressed therein, and none passed from Stewart and his wife to Alexander for the deed reconveying the property, except the note above mentioned, which was really intended to cover a pre-existing indebtedness, due, as before stated, from Stewart to Alexander. Both deeds bear the same date, and were filed for record on the same day. Each is in form a deed of conveyance, with full warranty of title, and was executed and acknowledged in the form and manner required by law. Appellants had no actual notice or knowledge of the purposes or intentions of Stewart and wife and Alexander in making these deeds, but became the owners of the note by indorsement from Alexander, in due course of trade, before its maturity, and for a valuable consideration. The defendants, in their answer, admitted the execution of the note, but, in response to plaintiffs' claim of lien on the property, pleaded the facts showing the true character of the transaction between Alexander and themselves, and insisted upon their homestead rights. The court to whom the cause was submitted, without the intervention of a jury, rendered judgment in favor of the plaintiffs against the defendant Dennis Stewart for $678.81, the amount due on the note, but refused to decree a foreclosure of the mortgage on the land. From that judgment the plaintiffs have prosecuted this appeal.

Moore, Duncan & Meerscheidt, for appellants, that the...