Driscoll v. Morris

• Decision Date: 28 May 1925
• Docket Number: (No. 8673.)
• Citation: 275 S.W. 196
• Parties: DRISCOLL v. MORRIS et al.
• Court: Texas Court of Appeals

Page 196

275 S.W. 196

DRISCOLL v. MORRIS et al.

(No. 8673.)

Court of Civil Appeals of Texas. Galveston.

May 28, 1925.

Error from District Court, Harris County; W. E. Monteith, Judge.

Suit by Elizabeth A. Driscoll against W. C. Morris and others. Judgment for defendants, and plaintiff brings error. Affirmed.

A. F. Sundermeyer and Stewart, DeLange & Milheiser, all of Houston, for plaintiff in error.

PLEASANTS, C. J.

This suit was brought by plaintiff in error against defendants in error, to restrain the sale under power conferred by a deed of trust, executed by plaintiff and her husband, of lot 19 in block 136 in Houston Heights in the city of Houston.

The petition for injunction alleges that the property was the homestead of the plaintiff at the time the deed of trust was executed, and that the indebtedness to secure which the deed of trust was executed was not a charge upon the homestead for which a lien could be created under the Constitution of this state. A temporary injunction was granted by the trial court, and defendants thereafter filed cross-action against plaintiff and her husband, asking for a judgment for their debt and a foreclosure of a vendor's lien upon the property.

In reply to this pleading by the defendants, plaintiff filed a supplemental petition alleging, in substance, that plaintiff purchased the property from D. Barker on December 2, 1918, for $1,900, paying $150 cash and the balance to be paid in monthly installments, and has occupied the property as their homestead ever since, and had paid the monthly installments so that only $1,100 remained unpaid in December, 1921; that on December 8, 1921, the husband of the plaintiff conspired with D. Barker to defraud the plaintiff and to place an additional incumbrance on the homestead of plaintiff, and in pursuance of such scheme the said D. Barker and plaintiff's former husband induced plaintiff, joined pro forma by her husband, J. T. Driscoll, to execute one note for $1,500 and one for $200, and Barker executed a deed conveying the property to plaintiff as her separate estate, and purporting to retain a vendor's lien to secure said two notes aggregating $1,700, bearing 8 per cent. interest and 10 per cent. attorney fees; and that said purported lien in excess of the $700 still due was void. Plaintiff alleged that defendant took said notes with knowledge of the facts, and asked that D. Barker be made a party defendant, and, if defendants were bona fide holders, that plaintiff have judgment against D. Barker, and offered to pay defendants whatever might be found due under the original contract of purchase.

D. Barker was duly cited to appear November 26th as a party defendant. Defendants filed a supplemental petition on October 26th, containing special exceptions to making D. Barker a party and a general denial. On November 1st the court sustained defendants' special exception and dismissed D. Barker as party defendant, to which plaintiff duly excepted.

After hearing the evidence on final trial in the court below, the court instructed the jury to return a verdict in favor of defendants upon their cross-action, and, upon a return of such verdict, rendered judgment for defendants establishing their debt and lien and foreclosing the lien against the property. No personal judgment was rendered against plaintiff.

The undisputed evidence shows that the plaintiff and her husband, J. T. Driscoll, contracted with D. Barker to purchase the lot in controversy on December 2, 1918, for the sum of $1,700. At the time this contract was made, plaintiff was living with her husband, and the lot was purchased for a homestead, and was thereafter occupied by plaintiff and her husband as their home. By the terms of the contract of purchase, the Driscolls were to pay $100 cash and agreed to pay $30 per month for the next 6 months and $25 per month thereafter until the $1,600 balance of the purchase price, with 8 per cent. interest thereon from the date of the contract, was fully paid. It was expressly stipulated in the contract that, in case of default in the...