Cetti v. Dunman

• Decision Date: 08 June 1901
• Citation: 64 S.W. 787
• Parties: CETTI v. DUNMAN et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

64 S.W. 787

CETTI v. DUNMAN et al.¹

Court of Civil Appeals of Texas.

June 8, 1901.

Appeal from district court, Tarrant county; Irby Dunklin, Judge.

Action by L. E. Dunman and another against Zane Cetti and others. From a judgment in favor of plaintiffs, Zane Cetti appeals. Affirmed.

A. M. Carter, for appellant. Capps & Canty and Sims & Snodgrass, for appellees.

CONNER, C. J.

This suit was instituted in the district court of Tarrant county on the 16th day of September, 1899, by Mrs. L. E. Dunman, joined pro forma by her husband, R. L. Dunman, against Zane Cetti, J. P. Smith, W. C. Perry, and R. L. Dunman, to set aside a judgment of said court rendered in favor of said Cetti on the 12th day of December, 1894, against W. C. Perry, as the maker, and J. P. Smith, as indorser, of certain vendor's lien notes, and against the said L. E. and R. L. Dunman, foreclosing the vendor's lien on certain land situated in Coleman county, claimed by Mrs. Dunman as her homestead. Cetti answered by demurrer, general denial, two and four years' statute of limitation, and special matter that need not here be noticed. The trial resulted in a verdict and judgment for appellees in accord with their prayer, setting aside said judgment of December 12, 1894, and canceling the proceedings thereunder by virtue of which Cetti, by cross bill, claimed the land involved. Among other things, it appears that on October 13, 1893, R. L. Dunman executed and delivered to J. P. Smith a promissory note for $5,000, payable in six months from its date, and to secure its payment "pledged and hypothecated" three certain promissory notes, dated September 7, 1893, aggregating $12,500, executed by W. C. Perry to R. L. Dunman, due in 8, 12, and 18 months from date, and reserving the vendor's lien on the tract of land at all times herein named occupied by R. L. and L. E. Dunman as their homestead. Thereafter, on August 30, 1894, Zane Cetti instituted suit in the district court of Tarrant county, Tex., against R. L. and L. E. Dunman, W. C. Perry, and J. P. Smith, declaring upon the notes and pledge above mentioned, and alleged that the same had been assigned and delivered to him by J. P. Smith, who resided in Tarrant county, and prayed for judgment, with foreclosure of vendor's lien. The Dunmans and Perry appeared and answered by plea to the jurisdiction of the court, alleging their residence and the location of the land involved to be in Coleman county, and charging that the indorsement of the vendor's lien notes by Smith to Cetti was "for the sole purpose of fraudulently conferring jurisdiction," no homestead plea being set up. Thereafter, on December 12, 1894, the judgment, the cancellation of which was sought in the present suit, was rendered. This judgment was rendered on an agreement set out therein, signed by T. H. Strong, as attorney for R. L. and L. E. Dunman and W. C. Perry, and by the respective attorneys for Cetti and J. P. Smith, and was to the effect that Cetti recover of Perry, as the maker, and R. L. Dunman, as indorser, $15,487.82, the aggregate amount of said vendor's lien notes, with foreclosure of lien on said homestead land (describing it), and providing that, if said amount of money was not paid before the expiration of one year from the date of the judgment, order of sale should issue, etc. Smith and R. L. Dunman were discharged altogether as to the $5,000 note executed by R. L. Dunman. It further appears that this judgment was not paid within the year, and that on February 21, 1896, order of sale issued as therein provided, by virtue of which the land in controversy was sold to Cetti. In her petition to set aside the above proceedings, Mrs. L. E. Dunman alleges, in substance, among other things, that the transaction in which W. C. Perry executed said vendor's lien notes was a simulated sale to him of the homestead for the purpose of thereby more effectually making an advantageous sale then contemplated to one Rogers; that upon the day said notes were executed the plaintiff, joined by her husband, R. L. Dunman, made a pretended deed to W. C. Perry, purporting to convey said homestead for $15,000, of which $2,500 purported to be cash, and the remainder to be secured by the vendor's lien notes mentioned; that no actual sale or passage of title was intended, the sole purpose, as represented by the husband, being to thereby make a more advantageous sale to Rogers than could otherwise be made; it being alleged that Mrs. Dunman was further induced to join in the conveyance upon the distinct agreement that said notes were to be delivered to and kept by her until the sale to Rogers, when she was to receive all the money received from Rogers, it not being intended that Perry should receive any part thereof, or ever be called upon to pay said notes; that she in fact received said notes, and put the same away among her private papers, to be kept by her; that the husband and Perry did not act in good faith with her, their purpose being to thereby effectuate a plan or agreement of Dunman and J. P. Smith, theretofore entered into, to thus procure vendor's lien notes, apparently valid, with which to liquidate the indebtedness of Dunman to Smith; that, pursuant to the purpose stated, R. L. Dunman, without the knowledge or consent of his wife, abstracted said notes, and hypothecated and delivered the same to Smith to secure the $5,000 note to Smith, and Smith thereafter assigned or indorsed them to Cetti, of all which Mrs. Dunman alleged she was without notice until the institution of said suit by Cetti, whereupon she employed said T. H. Strong to represent her, with special direction to plead her homestead right; that Strong, without her knowledge or consent, entered into said agreed judgment, being induced thereto by the false and fraudulent representation and assurance of counsel for Cetti to the effect that Cetti was an innocent purchaser of said vendor's lien notes for value before maturity, and without notice of her home claim; that she was not present at the time and place of the agreed judgment, but in Coleman county; that upon the return of her husband she inquired of him what had been done in the Ft. Worth suit, and that in answer thereto R. L. Dunman fraudulently concealed from her the true facts, and falsely assured her that the said suit had been compromised and settled, and that her homestead rights had been fully protected; that she remained in ignorance of said false representations of Cetti's counsel and of said unauthorized agreed judgment until after the issuance of the order of sale of February 21, 1896, whereupon, by advice of her then attorneys, she instituted suit in Coleman county, Tex., to establish her homestead right, but which suit, upon advice of other counsel, was dismissed, and the present suit instituted. It was also...