Howard v. Mayher

• Decision Date: 24 May 1905
• Citation: 88 S.W. 409
• Parties: HOWARD v. MAYHER et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

88 S.W. 409

HOWARD v. MAYHER et al.^*

Court of Civil Appeals of Texas.

May 24, 1905.

Appeal from District Court, Bowie County; S. P. Paunders, Special Judge.

Suit by W. H. Howard against John W. Mayher and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Chas. S. Todd, for appellant. Glass, Estes & King, for appellees.

FISHER, C. J.

Appellant, as the owner of two judgments against L. C. De Morse, which had been recorded in Bowie county, brought this suit against the appellees to subject certain real property, or the proceeds of the sale thereof in the shape of vendor's lien notes, to the payment of the judgments. After hearing the evidence, the court below directed a verdict for the appellees.

The facts, substantially, are as follows: On May 7, 1894, in the justice's court of Galveston county, Tex., a judgment was rendered in the case of Leon & H. Blum against L. C. De Morse for the sum of $169.50, with interest at the rate of 10 per cent. from date of judgment. May 18, 1894, execution issued upon that judgment, and returned "No property found." April 19, 1898, this judgment was transferred and assigned to the appellant, W. H. Howard. This judgment was recorded and abstracted in Bowie county May 7, 1899. On the 22d day of December, 1892, Leon & H. Blum recovered a judgment against L. C. De Morse for the sum of $1,418.15, with 10 per cent. interest per annum from date of judgment. April 18, 1898, this judgment was transferred and assigned to appellant, W. H. Howard. This judgment was also recorded and abstracted in Bowie county.

The plaintiff admitted the following facts pleaded by the appellees: That the appellee Mrs. M. L. De Morse married L. C. De Morse on the 3d of January, 1869; that at the time of her marriage she was possessed of a large amount of money and property, both real and personal, having inherited the same from her father; that after their marriage she loaned her husband large sums of money, and advanced him a large amount of property, which he promised to pay, with interest; that in such manner he was indebted to her on or before the 26th day of November, 1900, in various sums, aggregating about $20,000; that during his lifetime he offered and promised to pay her back, and at the time of his death he was still largely indebted to her; that since their marriage they have lived together as husband and wife until the death of L. C. De Morse, which occurred on the 6th day of May, 1902; that they became the owners of the lands and property described in plaintiff's original petition, situated in Texarkana, Bowie county, Tex., prior to the month of October, 1888, and during the summer and fall of that year they erected a residence upon the lots, and lived in and occupied the same as their homestead from that time up to and including the date of the sale of the same to the defendant John W. Mayher; that during all that time, to the date of the sale of the same to Mayher, the property was their homestead, and was used by them as such; that in the summer or fall of 1900 the codefendant John W. Mayher proposed to buy their homestead, and that appellee Mrs. M. L. De Morse would not agree to the sale of the same unless her husband L. C. De Morse would have the proceeds and the notes taken to secure the purchase price for the same made to her, and turned over to her and paid to her in part on the debt which her said husband then owed her; that during the pendency of the trade with Mayher, and while it was being made, her husband, L. C. De Morse, agreed with her that when the homestead was sold to Mayher the proceeds and notes would be turned over to her and paid to her in part payment on the debt that he owed her; that thereupon she joined with her husband in the sale of the...