Bryant v. Grand Lodge Sons of Hermann

• Decision Date: 20 December 1912
• Citation: 152 S.W. 714
• Parties: BRYANT et al. v. GRAND LODGE SONS OF HERMANN.
• Court: Texas Court of Appeals

152 S.W. 714

BRYANT et al. v. GRAND LODGE SONS OF HERMANN.

Court of Civil Appeals of Texas. Texarkana.

December 20, 1912.

Rehearing Denied January 2, 1913.

Appeal from District Court, Cooke County; Clem B. Potter, Judge.

Action by Mrs. Sudie Bryant and others against Grand Lodge Sons of Hermann. From a judgment for defendant, plaintiffs appeal. Affirmed.

E. A. Blanton, of Gainesville, for appellants. H. S. Holman, of Gainesville, for appellee.

WILLSON, C. J.

T. W. Morris died August 29, 1907. Mrs. Sudie Bryant is his widow. The other appellants are their children. While Morris and Mrs. Bryant were husband and wife, Morris purchased of Beattie, Jones & Whaley, and, in consideration of the execution and delivery to them by Morris of his three promissory notes for $100 each, payable December 1, 1899, 1900, and 1901, respectively, they conveyed to him by their deed dated December 1, 1898, 65 acres of land in Cooke county. Immediately thereafterwards Morris and Mrs. Bryant and their children moved to the land, and until March 13, 1906, occupied, used, and claimed as their homestead all except 20 acres thereof, which they sold and conveyed to one Lynch about December, 1902. By the terms of the deed to Morris a vendor's lien was retained on the 65 acres of land to secure the payment of the three notes referred to. After one Mosely became the owner of said notes, Morris executed and delivered to him as a substitute therefor, or renewal thereof, his note for $300. According to testimony on behalf of appellants, on February 14, 1906, there was a balance of $80 still unpaid of the purchase money represented by said $300 note. According to testimony on behalf of appellee, the balance then unpaid of said purchase money was $207. To obtain money to pay a debt he owed one Maupin, and perhaps other debts, Morris, accompanied by Maupin, about February 14, 1906, called on one Dickerman for the purpose of arranging with him to act with Morris in an effort to secure a loan on the land. To accomplish this it was agreed that Morris and his wife should make and deliver to Dickerman their deed purporting to convey the land to him in consideration of $700 in cash and his note for $500 and interest, secured by a vendor's lien on the land. On the faith of the security the note was to be negotiated, and in that way a loan of $500 on the land was to be obtained. In accordance with this agreement Morris and his wife executed and delivered to Dickerman their deed, dated said February 14, 1906, containing covenants of general warranty, and on its face purporting to convey the 65 acres of land to Dickerman. An effort was made to sell the note made by Dickerman in accordance with the agreement to one Frank Morris, representing appellee, when Dickerman was informed by said Frank Morris that T. W. Morris owned only 45 of the 65 acres described in his deed to Dickerman. Thereupon Morris and his wife executed and delivered to Dickerman another deed, containing like covenants, dated February 23, 1906, and purporting on its face to convey 45 of the 65 acres to Dickerman in consideration of $700 in cash, the execution and delivery to them by Dickerman of his promissory note for $293 secured by a vendor's lien retained on the land, and the assumption by him of the payment of the balance of the purchase money due on the land represented by the three notes for $100 each made by Morris December 1, 1898, and the note for $300 made by him as a substitute for said three notes. In accordance with an agreement then entered into between Frank Morris, acting for appellee, and Dickerman and T. W. Morris, Frank Morris paid to Mosely the balance of $207, claimed to be due on the $300 note mentioned above, which Dickerman had assumed to pay, took a transfer of said note from Mosely to appellee, and paid to T. W. Morris the amount of the $293 note made by Dickerman, and took a transfer thereof from T. W. Morris to appellee. In this way appellee became the owner of the debt representing part of the purchase price T. W. Morris had agreed to pay for the 65 acres, which Dickerman had assumed, and of the debt representing part of the purchase price Dickerman had agreed to pay for the 45 acres— amounting altogether, as appellee claimed, to $500. In lieu of the notes representing this indebtedness of Dickerman to it of $500, appellee had Dickerman to execute and deliver to it his note for $500, payable five years after its date, and to secure the payment thereof had Dickerman to execute and deliver a deed conveying the 45 acres of land to one Hess as trustee. The transactions just detailed seem all to have occurred on February 23, 1906—the day of the date of the deed conveying the 45 acres from T. W. Morris and his wife to Dickerman. The $500 note made by Dickerman in appellee's favor not having been paid, the trustee in accordance with the terms of the deed to him sold the 45 acres, and on October 4, 1911, by his deed of that date, conveyed same to appellee, the purchaser at the sale. The suit resulting in the judgment from which this appeal is prosecuted was brought by appellants to cancel the deed of T. W. Morris and his wife to Dickerman and the deed of the trustee named to appellee, as clouds on their title to the 45 acres of land. Appellants' contention was that the 45 acres of land, at the time of the transactions referred to, was the homestead of T. W. Morris and his wife, and that the conveyance thereof to Dickerman was void because it was a pretended sale of the land to Dickerman, made for the purpose and with the understanding of the parties to it that the deeds to Dickerman, though absolute on their face, should operate only as...