Caywood v. Henderson

• Decision Date: 26 February 1898
• Citation: 44 S.W. 927
• Parties: CAYWOOD v. HENDERSON et al.
• Court: Texas Court of Appeals

44 S.W. 927

CAYWOOD v. HENDERSON et al.

Court of Civil Appeals of Texas.

February 26, 1898.

Appeal from district court, Haskell county; Ed J. Hamner, Judge.

Trespass to try title by C. M. Henderson & Co. against C. L. Caywood and others. From a judgment for plaintiffs, defendant Caywood appeals. Affirmed.

H. G. McConnell, for appellant. H. R. Jones, for appellees.

STEPHENS, J.

C. M. Henderson & Co. recovered the land involved in this suit by virtue of an execution sale made in 1894, under a judgment in their favor, and against C. B. Banks, rendered March 25, 1889. The sale was made by virtue of an alias execution issued under this judgment, and levied May 1, 1894. This recovery was resisted by appellant, who was in possession of the land both when the suit was brought and when the execution was levied, under a deed from C. B. Banks and his wife, S. E. Banks, executed July 18, 1893, to R. E. and W. E. Sherrill, which, though in form a deed, was in reality a mortgage, and which appellant sought in vain to have foreclosed, it having been assigned to him.

Appellant assigns several errors to the judgment, but if, at the date of the mortgage under which he claims, the property was the homestead of Banks and wife, and if the evidence would not admit of a negative finding upon that issue, we need not determine the merits of these several assignments. That Banks and wife were living upon the land at the date of the mortgage, and had been for several years prior thereto, as their homestead, was clearly established; and that in the following month they left the premises, and moved to New Mexico, was also an established fact. The circumstances surrounding the parties at the time the mortgage was executed are thus stated by appellant's witness R. E. Sherrill: "On July 18, 1893. Banks occupied the premises in suit. He was closing up his business affairs preparatory to leaving here, and had declared his intention to leave here permanently, when he and his wife, S. E. Banks, gave myself and brother a deed to better secure the bank in the note. It was understood said deed should operate as a mortgage. Banks and his wife left the premises in suit shortly after executing that deed, and moved away, and have remained away ever since." The evidence relied upon by appellees made the case even stronger, if possible. We see no escape, therefore, from the conclusion that at the time the mortgage was executed, the property was, in fact and in law, the homestead of Banks...