Gober v. Smith

• Decision Date: 26 June 1896
• Citation: 36 S.W. 910
• Parties: GOBER et ux. v. SMITH et al.
• Court: Texas Court of Appeals

36 S.W. 910

GOBER et ux. v. SMITH et al.

Court of Civil Appeals of Texas.

June 26, 1896.

Appeal from district court, Jones county; Ed. J. Hamner, Judge.

Action by E. B. Gober and wife against Temple D. Smith and another. From an order sustaining a demurrer to the complaint, plaintiffs appeal. Reversed.

Leggett & Cunningham and Craig & Allen, for appellants. H. L. Bentley, for appellees.

TARLTON, C. J.

The appellants, E. B. Gober and his wife, S. E. Gober, brought this suit against the appellees, Temple D. Smith and Ed M. Tyson. A general demurrer was sustained to their petition. We hence state briefly and substantially the facts therein alleged, as follows: On March 7, 1892, the plaintiffs were the owners of lot No. 11 in block No. 3 in the town of Anson, Jones county. On that day, E. B. Gober, joined by his wife, S. E. Gober, conveyed to M. E. Campbell an undivided one-half interest in the lot referred to. On January 17, 1893, M. E. Campbell conveyed, by her deed, this undivided half to Ed Northrup and Mrs. J. G. Northrup. As part of the purchase money in this transaction, the Northrups executed to M. E. Campbell their promissory note for $383.55. This note, "through mistake or otherwise," recites on its face that it is given as part of the purchase money for lot No. 11 in block No. 3, situated in Anson, Jones county, on which real estate the vendor's lien is expressly retained. It was signed by Mrs. J. G. Northrup, Ed Northrup, and E. B. Gober, all as principal obligors. E. B. Gober was, however, in fact, but a surety. The deed executed by Mrs. Campbell to the Northrups conveyed but an undivided one-half interest in the lot, reserving a vendor's lien only to that extent. It was not recorded. The note, in course of trade, came into the possession of the defendant Temple D. Smith. On February 8, 1894, he sued upon it in the district court of Jones county, and recovered judgment against the defendants in that suit, viz. M. E. Campbell, R. M. Campbell, Ed Northrup, Mrs. J. G. Northrup, E. B. Gober, and Frank M. Smith. The judgment decreed a foreclosure of the vendor's lien on the entire lot, instead of on a one-half interest therein. An order of sale was accordingly issued, and placed in the hands of Ed M. Tyson, the sheriff of Jones county, who, through his deputy, J. C. McJilton, on October 2, 1894, sold the entire lot at public outcry to the defendant Temple D. Smith, for the sum of $70, and executed to him a deed therefor. At the time of the institution of this suit, and for five years prior thereto, the plaintiffs owned an undivided one-half interest in the lot, which was not included in the land conveyed by Campbell to the Northrups, and is, in reality, no part of the land for the purchase money of which the above-described note was given. During all this time, the plaintiff E. B. Gober was, and has since remained the head of a family, and the land involved in this suit has been, and so remains, his business homestead. As such, he has continuously used and occupied it, save and except during the time between October 3, 1894, and October 9, 1894, when he was ousted as below stated. He conducted the business of a blacksmith, his shop being upon the lot in question. The sale by the defendant Tyson, through his deputy, to the defendant Temple D. Smith, casts a cloud on the title of the plaintiffs to the half interest in question. At and before the sale, the defendants had full knowledge of the facts above stated. By virtue of the sale aforesaid, ...