Gibraltar Sav. & Bldg. Ass'n v. Collier, 10600.

• Decision Date: 05 May 1938
• Docket Number: No. 10600.,10600.
• Citation: 118 S.W.2d 639
• Parties: GIBRALTAR SAV. & BLDG. ASS'N v. COLLIER et al.
• Court: Texas Court of Appeals

118 S.W.2d 639

GIBRALTAR SAV. & BLDG. ASS'N v. COLLIER et al.

No. 10600.

Court of Civil Appeals of Texas. Galveston.

May 5, 1938.

Rehearing Denied July 7, 1938.

Appeal from District Court, Harris County; Ben F. Wilson, Judge.

Suit by the Gibraltar Savings & Building Association against G. M. Collier and another to recover on a note and to foreclose a deed of trust. From a judgment, plaintiff appeals.

Reversed and rendered.

W. R. Brown, of Temple, and A. W. Baring, T. J. O'Brien, and Edgar Monteith, all of Houston (Edgar Monteith, of Houston, of counsel), for appellant.

Thomas D. Anderson, of Houston, and Sam D. Snodgrass, of Temple, for appellees.

GRAVES, Justice.

This cause was a suit by the appellant, Building Association, against the appellees, G. M. Collier and children, called "the Colliers" —their mother having died meanwhile —for recovery upon a $5,000 note executed in its favor by G. M. Collier and wife on May 1 of 1928, together with foreclosure of a contemporaneous deed-of-trust lien given by them to secure the note on three lots of land in the City of Temple; the Colliers defended on the ground that the property had been their homestead under occupancy by them as such at the time of the execution of the note and lien, wherefore, the declared-upon lien was null and void; the Association, in rebuttal, fully asserted an estoppel upon the Colliers' part to assert or avail themselves of such a homestead claim, setting out in detail transactions between the parties at that time, which it alleged removed all basis for such claimed defense; the trial court, after a full hearing, submitted issues of fact to a jury, which, together with the answers thereto, were these:

"Special Issue No. 1.

"Do you find from a preponderance of the evidence that G. M. Collier and family were occupying, as their homestead, the house located on Lots 1, 2 and 3, Block 18, of the original town of Temple (referred to in the evidence as 315 West Central Avenue) at the time G. M. Collier and Cordelia V. Collier signed and acknowledged the deed of trust sued on by plaintiff?"

Answer: "We do".

"Special Issue No. 2.

"Do you find from a preponderance of the evidence that at the time of the execution by G M. Collier and wife, Cordelia V. Collier, of the note and deed of trust, G. M. Collier and wife were also in possession of and using the Fifth Street property in a way calculated to produce in the minds of plaintiff association's agents and representatives the impression that the Fifth Street property was their homestead?"

Answer: "We do".

"Special Issue No. 3.

"Do you find from a preponderance of the evidence that at the time of and prior to the execution of the note and deed of trust in question G. M. Collier and wife represented to the agents and representatives of plaintiff association that they had abandoned the West Central Avenue property as their homestead and that they owned and had moved into and were using the Fifth Street property as their homestead?"

Answer: "We do".

"Special Issue No. 4.

"Do you find from a preponderance of the evidence that the agents and representatives of the plaintiff association prior to the execution of the note and deed of trust believed such representations to be true?"

Answer: "We do".

"Special Issue No. 5.

"Do you find from a preponderance of the evidence that the agents and representatives of plaintiff association relied on such representations?"

Answer: "We do".

The parties thereupon each made motions for judgment in their own favor upon this verdict, neither having moved for judgment notwithstanding it, as prescribed in R.S. Article 2211, Vernon's Ann.Civ.St. art. 2211, whereupon the trial court refused such motion of the appellant and granted that of the appellees, denying appellant any foreclosure upon the property, but according it a personal judgment against G. M. Collier for the ascertained debt of $6,219.40.

So that, the one issue of law presented to this court is whether or not the trial court erred in so entering judgment upon the verdict returned, the appellees' procedural objections advanced here not being thought to be well taken.

Because of this character of their motions, both parties thus stand upon the verdict and in effect affirm the sufficiency of the evidence to sustain each and all of its constituent findings; therefore, it must be assumed that there was no lack of support for anyone of them; indeed, their differing contentions here simply are these: The appellant, on the one hand, urges that the findings under issues 2 to 5 inclusive, rendered immaterial the one under issue No. 1 that the borrowers were occupying the security as their home, while, in turn, the appellees maintain that such finding under No. 1 alone foreclosed the controversy in their favor, hence the trial court was fully justified in treating the further findings under issues 2 to 5, inclusive, as wholly immaterial—which it did do—and as a consequence adjudged the deed-of-trust lien to have been void.

After careful consideration of the record, the briefs, and the arguments of able counsel, this court sustains appellant's proposition No. 1, submitted as sustaining its view, as follows:

"Where, as in this case, applicants for a loan secured by real estate, who own two separate and distinct pieces of real property, each suitably improved and furnished for occupancy by applicants as a home, concealed from lender the occupancy of the security offered in such a way that the occupancy thereof was not open, visible and exclusive, applicants being also in possession of and using the designated property as a home when inspected by lender; and where applicants also made written declarations under oath that they had moved from and abandoned...