First Nat. Bank of Harlingen v. Farrier, 3185.

• Decision Date: 27 January 1938
• Docket Number: No. 3185.,3185.
• Citation: 113 S.W.2d 285
• Parties: FIRST NAT. BANK OF HARLINGEN v. FARRIER et al.
• Court: Texas Court of Appeals

113 S.W.2d 285

FIRST NAT. BANK OF HARLINGEN v. FARRIER et al.

No. 3185.

Court of Civil Appeals of Texas. Beaumont.

January 27, 1938.

Appeal from District Court, Cameron County; A. M. Kent, Judge.

Action of trespass to try title, by the First National Bank of Harlingen, Tex., against William Farrier and another, and in the alternative to recover on five promissory vendor lien notes. Judgment for defendants, and plaintiff appeals.

Affirmed.

Myrick & Johnson, of Harlingen, for appellant.

Carter & Stiernberg, of Harlingen, for appellees.

O'QUINN, Justice.

Appellant sued appellees, William Farrier, John Morris, Jr., and his wife, Mrs. Annie Farrier Morris, in trespass to try title to lots 7 and 8, block 3, Castle Court addition to the city of Harlingen, Tex., and in the alternative to recover on five promissory vendor lien notes, each in the sum of $1,000, dated August 13, 1934, executed by William Farrier, payable to the order of appellant, First National Bank of Harlingen, Tex., due on July 1, 1935, 1936, 1937, 1938, and 1939, respectively, and to foreclose the vendor's lien. It alleged that appellees John Morris, Jr., and Annie Farrier Morris, were setting up "some sort of right to possession to said property."

Appellee William Farrier answered by general demurrer, general denial, and plea of not guilty, and specially that there was no consideration for his execution and delivery of the notes in question, in that they were executed in a simulated transaction between appellant and appellees, the Morrises, said property being the homestead of John Morris, Jr., and Annie Farrier Morris, the purpose of said transaction being to place a mortgage on said homestead, which was void, and adopted the answer of the Morris defendants.

Appellees, John Morris, Jr., and Annie Farrier Morris, answered by general demurrer, general denial, plea of not guilty, and specially, that the property in question, at and prior to the time of the execution of the deed by reason of which appellant claims it had title to the lots in controversy, was their homestead; that on the date of the execution of the deed, August 7, 1934, John Morris, Jr., Inc., was indebted to appellant bank in the sum of $5,000 and at the request of an officer of the bank they attempted to place a lien on their homestead property for the purpose of securing the payment of said debt by a simulated sale to the bank, the deed on its face appearing to convey absolute title, but that same was executed by appellees, the Morrises, with the understanding that it was only to secure the debt owed by John Morris, Jr., Inc., that the bank would deed the property to appellee William Farrier, brother of Annie Farrier Morris, and that he, Farrier, would deed the property back to them; that the deed dated August 7, 1934 from them to the bank conveying the property was not intended to convey title to the property, but was a simulated sale to secure the debt of John Morris, Jr., Inc., to the bank, and so was void; that there was no consideration for the execution of the deed from the bank to William Farrier, and none for the execution of the vendor lien notes by Farrier to the bank, it not being intended that he should pay said notes, or that he should own the title to said property, but that said notes were merely evidentiary of the indebtedness owing by John Morris, Jr., Inc., to the bank, said Farrier to reconvey said property to Annie Farrier Morris, the same at all times having been her separate property.

Appellant by supplemental petition replied to the answer of the Morrises denying that the sale of the property was simulated or intended as a mortgage to secure the debt mentioned, but that said sale was an absolute sale conveying to it full title to the property, and that said defendants were estopped to deny same because on the 11th day of August, 1934, said defendants, Morris and wife, executed an affidavit and delivered same to appellant declaring the sale of the property to it was an absolute conveyance without restrictions of any kind, and they were estopped from so claiming; that at the request of said defendants, on August 13, 1934, it by deed conveyed the property to William Farrier for a consideration of $5,000, evidenced by the vendor lien notes in question, and that all defendants were estopped from asserting there was no consideration for its deed to Farrier—and, in effect, from asserting that the consideration for the vendor lien notes executed by Farrier had failed. It further answered that Farrier by accepting the deed from it to him, and by executing the notes, was estopped from denying the validity of the deed and the notes.

The case was tried to a jury upon one special issue, in answer to which they found that the deed from appellees, John Morris, Jr., and his wife, Annie Farrier Morris, to appellant bank, was not intended to convey title to the property involved to the bank, but was intended as a mortgage to secure the debt of John Morris, ...