Burkhardt v. Lieberman, 10982.
| Citation | 142 S.W.2d 283 |
| Decision Date | 30 May 1940 |
| Docket Number | No. 10982.,10982. |
| Parties | BURKHARDT et ux. v. LIEBERMAN et al. |
| Court | Court of Appeals of Texas |
Appeal from District Court, Harris County; Roy F. Campbell, Judge.
Suit in trespass to try title by Otto Burkhardt and wife against George Lieberman and another. From a judgment for defendants, plaintiffs appeal.
Affirmed.
Walter F. Brown and H. Fletcher Brown, both of Houston, for appellants.
W. E. Daly and Charles L. Terry, both of Houston, for appellees.
This suit was brought by appellants, Otto Burkhardt and wife, Mary, in trespass to try title, against George Lieberman and O. C. Riedel, to 71.6 rural acres in Harris County, near Houston, and a vacant lot in Houston. The rural property consists of three contiguous tracts of 10 acres each; of a tract of 25 acres; one of 16 acres; and one of 6/10 of an acre.
It was established at the trial that 71.6 acres formed a part of appellants' homestead at the time, January 28, 1932, Otto Burkhardt executed a deed of trust thereon to secure the First National Bank of Houston in the payment of two notes; one of $1,300, and one for $1,500. On September 24, 1935, Otto Burkhardt executed a new deed of trust, being in renewal of the former deed of trust. The original, and the renewal deeds of trust each contained the statement and covenant that the property thereby covered, which is here involved, formed no part of his homestead. On March 25, 1932, appellants made their sworn disclaimer of any homestead rights in the property, and designated as their homestead a 27½-acre tract on which they resided in a residence situated thereon, which was located about a mile and a half from the 71.6 acres, and across the Katy Road therefrom. These instruments were recorded in the deed records of Harris County. The affidavits are copied and appended hereto.1 Burkhardt failed to pay his notes when they matured, and the bank's trustee foreclosed under the renewal deed of trust, on April 6, 1937, and appellee Lieberman bought the property in for $3,300, subject to a superior lien on the 25-acre tract of approximately $1,300, and subject to delinquent taxes of about $900. Burkhardt surrendered possession to Lieberman.
Appellant Burkhardt was a nurseryman by occupation. He owned both the 25-acre tract and the 16-acre tract in 1921, at the time he bought the three 10-acre tracts. And at the time he bought the three 10-acre tracts, in 1921, he lived in a residence which was situated on the 16-acre tract; from this, in 1921, he moved to the residence situated on the 27½-acre tract. He subsequently lost title to the 27½-acre tract, but continued to live thereon, and did so at the times material to this case.
Appellee Lieberman was a nursery customer of Burkhardt, and had purchased nursery stock from appellants' home place, the 27½-acre tract, and from his place of business on Fannin Street in Houston. In March, 1937, Otto Burkhardt told Lieberman that he was going to be foreclosed on by the bank, and asked Lieberman if Lieberman knew where he might borrow the money to refinance the loan. At that time he told Lieberman that the property involved was not his home, and arranged to have Lieberman come out to see it. Two days later he showed Lieberman the property here involved. Lieberman testified that had Burkhardt intimated to him in any way that he claimed the land as a homestead, or that if he had had any knowledge it was such, he would not have bought it. Lieberman further testified, and his testimony is not disputed, that after he made the inspection of the land, he discussed the title of the land with Burkhardt, who told him the bank had made him have the title straightened up when it took the deed of trust, and referred him to Mr. Burkhardt's attorney, and to the bank. Both the bank and the attorney told Lieberman the lien was all right, and the disclaimers as to homestead and all other matters in the bank's file were exhibited to him.
Appellee Riedel lived near the property here involved. On February 15, 1938, some nine to ten months after Lieberman had bought in the 71 acres at the trustee's sale of April 6, 1937, and had same peaceably surrendered to him by Burkhardt, Riedel bought the three tracts of 10 acres each from Lieberman for $4,250 cash. This he did after the title had been approved by his attorney.
The answer filed by Lieberman is quite lengthy. In addition to general demurrer, general denial, and plea of not guilty, it pled in substance the facts hereinabove set forth. Following the allegations of the facts and circumstances connected with his purchase of the property occurs this pleading which we quote from said answer: "Premises considered, this defendant, George Lieberman, shows that he is a purchaser in good faith and for value of the land * * * without notice of any right, title, lien, claim, or equity in or on the part of the plaintiffs * * *, and further this defendant shows that by virtue of the allegations herein made the plaintiffs, Otto Burkhardt and wife, Mary Burkhardt, are estopped to claim any right, title or equity in and to all or any part of said land * * *." The answer then alleges certain improvements made in good faith, without knowledge of appellants' claim to the property, and their value. It further sets up his purchase and ownership of a superior outstanding vendor's lien and superior title against the 25-acre tract for $1,300, and that the indebtedness is past due, and his election to rescind the sale and recover the superior title. The answer of Lieberman further sets up a claim for taxes that he has paid, and a subrogation to the lien to secure their payment, and other details in connection with his claim not necessary to be set forth with particularity.
The answer of appellee Riedel in addition to a general demurrer, a general denial, and a plea of not guilty, contains a disclaimer to all of the land sued for except the three tracts of 10 acres each which he bought from Lieberman. His answer sets up that on February 15, 1938, he bought the three 10-acre tracts for a valuable consideration from Lieberman, and that at the time of such purchase he was furnished with an abstract of title which he caused to be examined by a competent attorney, who advised him that the title of Lieberman was good and merchantable; and that, he, Riedel, found Lieberman in possession of such land under a deed duly recorded, and accepted from him a warranty title. He pled that he had paid $4,250 cash for the land. Further, that appellants were not residing upon the land; and that the trustee's deed which conveyed such land to defendant Lieberman had been recorded for about a year and no suit had been filed to recover same when he bought; that there was no instrument of record which would lead one to believe that plaintiffs were claiming or even intended to claim the same or any portion thereof. And that the deed records of Harris County showed a valid fee-simple title to the three 10-acre tracts to be vested in Lieberman; he pled the deed of trust, under the disclaimer of homestead rights and covenant against homestead use; he also pled the sworn disclaimer of homestead, and homestead designation; he pled the renewal, the failure to pay the notes, and the foreclosure. He pled that he had had no notice or knowledge of their homestead claims, and that if he had received any, he would not have bought. Riedel further pled that appellants are estopped to claim the three 10-acre tracts, and that he is a purchaser for value without notice, and is entitled to judgment accordingly.
In reply, the appellants filed a first supplemental petition, demanding strict proof. They pled that they were willing to pay Lieberman the amount of the vendors' lien note secured on the 25 acres, and with its superior title, and that they tender whatever amount the court determines is necessary to reimburse Lieberman for the amount paid out on the note, and that they offer to do whatever equity the court requires of them in connection with this suit.
The case was submitted on special issues, in response to which the jury found:
1. The 71 acres of land were a part of the homestead of Otto Burkhardt and wife on January 28, 1932 (the date of the original deed of trust).
2. That the 6/10-acre tract was also at that time a part of their homestead.
3. That the 71 acres were also a part of their homestead on September 24, 1935 (the date of the renewal deed of trust).
4. The same finding as the foregoing was made with respect to the 6/10-acre tract.
5. That when Lieberman purchased the property, he did not believe the statement in the deed of trust of September 28, 1932. * * *
10. That a person of ordinary prudence situated as was Lieberman would not have bought the property except for the statement in the deed of trust of September 28, 1932.
11. That when Lieberman purchased the property he believed the statement in the deed of trust of September 24, 1935, that the property was not a part of the homestead of appellants.
12. That a person of ordinary prudence situated as was Lieberman would have believed such statement to be true.
13. That in purchasing the property Lieberman relied on such statement.
14. That a person of ordinary prudence, similarly situated, would have relied on such statement.
15. That Lieberman would not have bought the property but for such statement.
16. And that a person of ordinary prudence situated as Lieberman would not have bought the property but for such statement.
17. That Lieberman, at the time he purchased the property, was led to believe from the statement by Otto Burkhardt, as to his homestead contained in his affidavit, that the property was not a part of the homestead of himself and Mrs. Burkhardt on September 24, 1935.
18. That Lieberman relied on the statement in such affidavit.
19. That a person of ordinary prudence, situated as was Lieberman, would have relied...
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Burkhardt v. Lieberman, 2394-7784.
...lien note. Upon appeal by the Burkhardts to the Court of Civil Appeals, at Galveston, the judgment of the trial court was affirmed. 142 S.W.2d 283. The Burkhardts assign numerous errors in the judgment of the Court of Civil Appeals but, as we view the case, only a few of them need be consid......