Dodson v. Dickey

• Decision Date: 28 June 1924
• Docket Number: (No. 2953.)
• Citation: 264 S.W. 586
• Parties: DODSON et al. v. DICKEY et ux.
• Court: Texas Court of Appeals

264 S.W. 586

DODSON et al. v. DICKEY et ux.

(No. 2953.)

Court of Civil Appeals of Texas. Texarkana.

June 28, 1924.

Rehearing Denied July 5, 1924.

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

Suit by J. C. Dickey and wife against J. L. Dodson and others, in which defendants filed a cross-bill. Decree for plaintiffs, judgment for named defendant against named plaintiff on the cross-bill, and defendants appeal. Reversed and rendered in part and affirmed and rendered in part.

See, also, 247 S. W. 615.

Will D. Pace, of Troup, and E. Newt Spivey, of Texarkana, for appellants.

John B. Guinn, of Jacksonville, and Norman, Shook & Gibson, of Rusk, for appellees.

HODGES, J.

In 1919 J. C. Dickey was the owner of 626 acres of land consisting of several different tracts situated in Cherokee county, on which he wished to borrow some money. In August of that year he made a written application for a loan of $12,000, appointing H. M. McIver, of Texarkana, Ark., as his agent to procure the loan. The application was taken by J. L. Dodson, to whom the notes later given were made payable. It appears, however, that Dodson was acting for the Security Mortgage Company of Texarkana, Ark. Dodson, who inspected the land, recommended a loan of $11,000, which was made. The principal debt was divided into three parts, and was evidenced by two separate notes for $3,500 and one note for $4,000, due several years later. The interest on those notes was payable annually, and separate interest notes were given for the amount due each year, making 21 interest notes, three of which matured in September of each year. To secure the payment of the principal notes Dickey and wife executed three separate deeds of trust, in which McIver was named as trustee. The $4,000 note was secured by a deed of trust on 201½ acres of land, which will be hereinafter referred to as the "Prior place," on which Dickey and family then resided. One of the notes for $3,500 was secured by a deed of trust on 200 acres formerly owned by Dickey's parents, and on which he and his family resided prior to their removal to the Prior place. This place will be hereinafter referred to as the "old Dickey place." The second note for $3,500 was secured by a deed of trust on three other tracts of land, not involved in this controversy. The interest notes were secured by three other deeds of trust expressly made subordinate to the lien securing the principal debt. All of those instruments were signed by Dickey and wife, and the deeds of trust appear to have been properly acknowledged by them and filed for record. The interest notes maturing in 1920 were paid by Dickey, but default was made as to those maturing in 1921. It was stipulated that a failure to pay any one of the interest notes at maturity would authorize the holder to declare all of that series due and to have the lien foreclosed. In October, 1921, McIver, as trustee, advertised the land for sale. In November following Dickey and wife filed this suit, asking for a writ of injunction to restrain the sale of the 200 acres referred to as the "old Dickey place," alleging that this was their homestead at the time the deed of trust was executed, and for that reason the incumbrance was void. Dodson, who appears to be the holder of the notes, and McIver, the trustee, were made parties defendant in that suit. They answered, denying that the 200 acres above referred to were the homestead of Dickey and wife. They also pleaded that, if it was then regarded by the plaintiffs as their legal homestead, they are estopped to now urge that claim, because of the written designation of other lands as their homestead, made at the time the deeds of trust were executed. Defendants also pleaded the debt evidenced by the interest notes and the liens created to secure their payment, and ask for a personal judgment against Dickey and wife for the amount of the debt and a foreclosure of the lien. Dickey and wife answered, alleging that, if the deeds of trust or other instruments signed by them contained the designation of a homestead other than the 200 acres known as the "old Dickey place," such instruments were executed under a misapprehension of that fact. They allege that they did not read the deeds of trust at the time they were signed; that they were prevented from so doing by the representations of appellants' agents then present that the papers were properly drawn and in accordance with the original agreement between Dickey and Dodson. They say that it was understood between Dickey and Dodson that the 200 acres composing the old Dickey place was not to be included in the mortgages given. Mrs. Dickey also pleaded that, if there was an agreement between Dodson and her husband to designate land other than this 200-acre tract as the homestead, such an agreement was in fraud of her rights and without her knowledge or consent.

In a trial before the court a judgment was rendered in favor of Dickey and wife granting the writ of injunction prayed for restraining the sale of the 200 acres claimed as the homestead. A personal judgment was rendered against Dickey in favor of Dodson for the amount of the debt set out in the cross-bill, and a foreclosure of the lien on that portion of the land not included in the old Dickey place. Dodson and McIver have appealed.

Without discussing the assignments of error in detail, we shall consider the questions which go to the merits of the case. Is the evidence sufficient to support the judgment of the court?

While there is some conflict in the evidence, there are some facts which are apparently undisputed. It is conceded that at the time the deeds of trust were executed Dickey was residing on a tract of land known as the "Prior place." That consisted of 101½ acres, which was joined by another tract of 100 acres situated in the Howat survey. He had formerly resided on the 200 acres known as the "old Dickey place"; but about two or three years before had moved to the Prior place, where he continued to reside until after this suit was filed. He then moved back to the old Dickey place, and continued to reside there until the residence on that place was destroyed by fire.

In the written application executed by Dickey at the time he sought the loan he gives a somewhat general description of his land. In this statement he says:

"Land located in the county of Cherokee, state of Texas: 101½ a. Allison H. R.; 100 a., 200 a., 40 a., 61 a., 124 a., Ellison H. R.; containing 626 acres. Land is situated eight miles S. from Troupe, the nearest R. R. market. Population 1,800, and 24 miles N. from Rusk, the county seat. Twelve miles N. E. from Jacksonville. Is land on public road? Yes. Name: Jacksonville and Troupe. Conditions, fair. One-half mile to schoolhouse; half mile from a church."

He describes the 626 acres as susceptible of cultivation; 410 acres as then...