Hickman v. Hoffman

• Decision Date: 27 November 1895
• Citation: 33 S.W. 257
• Parties: HICKMAN et ux. v. HOFFMAN.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

33 S.W. 257

HICKMAN et ux. v. HOFFMAN.¹

Court of Civil Appeals of Texas.

November 27, 1895.

Appeal from district court, Bosque county; J. M. Hall, Judge.

Action by R. Hoffman against P. T. Hickman and wife to try title. From a judgment for plaintiff, defendants appeal. Affirmed.

S. H. Lumpkin, for appellants. Lockett & Kimball, for appellee.

FLY, J.

Appellee sued Hickman and wife to try title to two tracts of land, one containing 400 acres of land, the other 1,142½ acres, in Bosque county. It was alleged that 50 acres were in cultivation, and there was a claim pleaded of $5 per annum per acre rents for the cultivated land and 50 cents per annum per acre for the 1,492½ acres remaining. It was answered that in January, 1893, appellants had recovered a judgment against one J. A. Story, through whom appellee claimed the 1,142½-acre tract, for $2,750, and other sums in the hands of referees, and that the basis of said judgment was part of the purchase money for said 1,142½ acres of land, and that the judgment was still in full force and effect, and that appellee had full knowledge of the judgment. It was further answered that appellee claimed the 400-acre tract through a deed from C. Voss; that the said tract was the homestead, and separate property of the wife, S. D. Hickman; that when she signed and acknowledged the deed conveying the land to Voss she did so under the representation that $4,800 cash was to be paid to her or her husband, and a debt and lien for $2,200 assumed, for the land, and that she instructed her husband not to deliver the deed until that consideration was paid; that the debt and lien for $2,200, which was a charge against the 400 acres of land, was not paid by said Voss. Fraud on the part of the husband was alleged, and that appellants had never surrendered possession of the premises, but were in possession and holding the same was alleged, and that Voss and appellee had full notice of both the fraud and the possession. There was a verdict for appellee for the land and for $997 for rents for 2 years, 7 months, and 28 days, at the rate of $2 per acre per annum on 140 acres in cultivation, and $100 per annum for the remaining 1,492½ acres.

We draw the following conclusions from the statement of facts: On December 5, 1890, P. T. Hickman and his wife, S. D. Hickman, by a deed which was duly acknowledged, conveyed to J. A. Story the 1,142½-acre tract of land, which deed was recorded on December 6, 1890. On January 21, 1891, the same land was by warranty deed conveyed by J. A. Story and wife, Mary Story, to C. Voss, which was duly acknowledged on same day, and filed for record on January 23d, and on January 24, 1891, duly recorded. On January 16, 1891, appellants conveyed the 400-acre tract in controversy to C. Voss, and the deed of conveyance was duly acknowledged and recorded, the recitals showing a consideration of $4,800, and the assumption of the payment of a debt of $2,200 to J. & R. L. Brown, secured by a mortgage on the said land. On October 3, 1891, both tracts were conveyed by deed properly acknowledged and recorded from C. Voss to L. Voss, and on January 5, 1892, the same land was conveyed by L. Voss to R. Hoffman, the appellee. Appellee was a bona fide purchaser of the land in controversy without notice of any claim that appellants, or either of them, may have had to the land; and paid a full consideration for the same. Both C. Voss and L. Voss paid the full purchase money for the land, in good faith, without notice of any equities held by appellants.

The first assignment claims error in the action of the court in sustaining a special exception to that part of the answer setting up the judgment against J. A. Story, and asking a foreclosure of the vendor's lien on the 1,142½ acres of land. We are of the opinion that the action of the court was not erroneous. The copy of the judgment...