Brown v. Wilson

• Decision Date: 10 January 1895
• Citation: 29 S.W. 530
• Parties: BROWN et ux. v. WILSON et al.
• Court: Texas Court of Appeals

29 S.W. 530

BROWN et ux. v. WILSON et al.

Court of Civil Appeals of Texas.

January 10, 1895.

Appeal from district court, Shelby county; James T. Polly, Judge.

Action by W. P. Wilson and H. N. Runnels, under the firm name of Wilson & Runnels, against A. W. Brown and E. J. Brown, his wife. From a judgment for plaintiffs, defendant E. J. Brown (her husband refusing to join her) appeals. Reversed.

Doury Field, for appellant. Tom C. Davis & E. B. Wheeler, for appellees.

GARRETT, C. J.

This is an appeal by E. J. Brown, the wife of A. W. Brown, in which her husband refuses to join, from a judgment against her and her husband in favor of W. P. Wilson and H. N. Runnels composing the firm of Wilson & Runnels, for the recovery of a tract of land situated in Shelby county. Defendants pleaded not guilty, and, specially, that the deed from A. W. Brown to the plaintiffs, purporting to convey the premises to them, was inoperative and void because the said premises were the homestead of the defendants, and the wife, said E. J. Brown, did not join in the deed. The case was tried before a jury, with the result stated.

The land in controversy had been conveyed to the defendant A. W. Brown prior to his marriage with the defendant E. J. Brown, and was his separate property. Defendants were married in 1886, and moved upon the premises, and occupied them as a homestead. To show title in themselves, plaintiffs put in evidence three deeds: (1) A. W. Brown and his wife, E. J. Brown, to Hicks & Bro., dated December 22, 1888; (2) Hicks & Bro. to the plaintiffs, dated January 10, 1890; (3) A. W. Brown to plaintiffs, dated October 5, 1891. There was evidence on the part of the defendants to show that the deed from them to Hicks & Bro. was a mortgage; and, on the part of the defendant E. J. Brown, that plaintiffs bought from Hicks & Bro. with notice that the deed to them was only a mortgage; and there was testimony also tending to show that, at the time the deeds from Brown and wife to Hicks & Bro. and from A. W. Brown alone to Wilson & Runnels were executed, the premises were the homestead of Brown and wife. If the land was the homestead of the defendants at the time the deed from them to Hicks & Bro. was executed, and that instrument was in fact a mortgage, and it was also the homestead at the time Brown alone executed the deed to plaintiffs, then it becomes a very material inquiry as to whether or not the plaintiffs had notice that the Hicks deed was in fact a mortgage, for such notice would prevent a recovery by them. Again, if the land was not the homestead at the time the deed to Hicks & Bro. was executed, and said deed was in fact a mortgage, and plaintiffs had notice thereof, they could not recover, under their pleadings in this case, if the land was the homestead at the time Brown made the deed to them. It appeared from the evidence that A. W. Brown remained in possession of the premises after the execution of the deed by himself and wife to Hicks & Bro., that Brown was indebted to Hicks & Bro. in a sum much less than the value of the land, and that there was to be a reconveyance to Brown by Hicks & Bro. upon payment of the amount of the debt, with interest. About the time of the conveyance by Hicks & Bro. to the plaintiffs, Brown went to the plaintiff Wilson, and complained of Hicks & Bro.'s treatment of him, and stated that he wanted Wilson's firm to buy the land from Hicks & Bro., and let Brown have it on a credit of one, two, and three years, for a sum sufficient to embrace the amount to be paid to Hicks & Bro., and some other debts that Brown was owing, including an account which he owed the plaintiffs. This arrangement was carried out by plaintiffs taking a conveyance from Hicks & Bro. upon payment of $800, the amount of Brown's indebtedness to them, and their conveying the land to Brown, and taking his notes for $1,700, payable in one, two, and three years, and their paying Brown the difference....