Dodson v. Dickey

• Decision Date: 15 December 1922
• Docket Number: (No. 2617.)
• Citation: 247 S.W. 615
• Parties: DODSON et al. v. DICKEY et ux.
• Court: Texas Court of Appeals

Page 615

247 S.W. 615

DODSON et al. v. DICKEY et ux.

(No. 2617.)

Court of Civil Appeals of Texas. Texarkana.

December 15, 1922.

Rehearing Denied January 11, 1923.

Appeal from District Court, Cherokee County; L. D. Guinn, Judge.

Suit by J. C. Dickey and wife against J. L. Dodson and others. Decree for plaintiffs, and defendants appeal. Reversed and remanded.

J. C. Dickey and his wife, Mary E. Dickey, brought the suit, asking for an injunction restraining the trustee from making an advertised sale at public auction under the foreclosure terms of a mortgage of 200 acres of land on the E. C. Allison league in Cherokee county, and further asking that the mortgage be decreed void as a cloud upon the title to the land, upon the ground that the 200 acres of land was the real homestead of the plaintiffs, and any mortgage or trust deed attempting to give a lien thereon to secure a loan of money was legally invalid and void. The trustee and the mortgagees are the defendants.

The defendants answered by general denial, and specially pleaded, as grounds of estoppel, that they loaned money to plaintiffs and took a mortgage lien on the 200 acres in controversy, besides several other tracts of land, and that at the time of the transaction the plaintiffs "disclaimed" any homestead in the 200 acres, and in writing represented and expressly designated and set apart as their homestead the following lands, to wit:

"100 acres in the Allison H. R. fully described in deed from Mrs. E. A. Dickey, of date April 1, 1916, of record in vol. 71, page 94, in the recorder's office in Cherokee county; and 101½ acres of land in the Allison H. R. survey described in deed from Comfort Prior to J. C. Dickey, of date October 12, 1918, of record in vol. 79, page 245, in the recorder's office of Cherokee county."

The answer further set up the several deeds of trust, the indebtedness due and unpaid, and prayed for judgment for the debt and foreclosure of the mortgage lien.

The plaintiffs demurred to the defendants' answer, and specially alleged that the 200 acres was and is their homestead, and, while they had temporarily left the same, it was not with the intention of abandonment as a homestead. The plaintiff Mary E. Dickey further specially replied to the defendants' answer that at the time she signed the deed of trust she did not know that it contained a designation of another tract as her homestead, and that she never represented to the mortgagees that the other tract was her homestead; that she relied upon representations and statements of her husband that the 200 acres had been designated as their homestead, and that she signed the deed of trust relying upon such statement as true, and that the notary did not explain the instrument to her and did not examine her privily and apart from her husband; that fraud was practiced on her both by her husband and defendant Dodson in causing the mortgage to recite the designation of the other tract as her homestead; that she never acknowledged the mortgage, and on account thereof it was void as a conveyance of the homestead of 200 acres; that she did no act and made no statement which did or could have misled the defendants, by which she could be estopped from setting up her homestead rights.

The defendants, by supplemental answer, replied to the plaintiffs' supplemental petition, alleging:

"That the plaintiffs carried the defendant Dodson on the premises and pointed out to him as their homestead the property designated (as set out in the original answer), and the defendants. relying on such statements and representations, made the loan and took the deed of trust as set out in the original answer. Defendants say that the plaintiffs are bound by their original designation because, if the land was in fact their homestead, they made false representations to the defendants and thereby induced them to advance the amount of money loaned."

The plaintiffs made reply to the defendants' supplemental answer and averred that they did not point out to defendant Dodson the 201½ acres of land as their homestead—

"but say they pointed out and informed the said Dodson that the tract described in their petition (the 200 acres) was their homestead and that the said Dodson fraudulently inserted and described the other and different tracts in the deed of trust without their consent or knowledge, and neither of them knew that such had been done until the land was advertised for sale."

The case was tried before the court without a jury, and the court, in accordance with his findings of fact, entered judgment in favor of plaintiffs, restraining a sale of the 200 acres as a homestead, but awarding a judgment in favor of the defendants on their cross-action for the amount of the debt sued for, and also for a foreclosure of the mortgage lien on the other tracts of land in suit.

The court made the following findings of fact, viz.:

"The court, after hearing the evidence and argument of counsel, reserved his findings until the 29th day of December, 1921, and now finds as follows: That the plaintiffs J. C. Dickey and wife, Mary E. Dickey are entitled to the relief prayed for as the hereinafter described land is their homestead; that on the 19th day of August, 1919, and at all times thereafter, the homestead of the plaintiffs is the 200 acres of land described as follows (here follows description); that the deed of trust dated August 19, 1919, and executed August 26. 1919, by J. C. Dickey and Mary E. Dickey on the above described land was void."

It appears that J. C. Dickey applied to appellants for a loan of $12,000. At the time Mr. Dickey...