Jenkins v. Guaranty State Bank of Palestine

• Citation: 189 S.W. 314
• Decision Date: 02 November 1916
• Docket Number: (No. 617.)
• Parties: JENKINS et ux. v. GUARANTY STATE BANK OF PALESTINE.
• Court: Court of Appeals of Texas

189 S.W. 314

JENKINS et ux. v. GUARANTY STATE BANK OF PALESTINE.

(No. 617.)

Court of Civil Appeals of Texas. El Paso.

November 2, 1916.

Appeal from District Court, Anderson County; John S. Prince, Judge.

Suit by the Guaranty State Bank of Palestine against Alex Jenkins and wife. Judgment for plaintiff and defendants appeal. Affirmed.

Kay & Seagler, of Palestine, for appellants. Funderburk & Strickland, of Palestine, for appellee.

HARPER, C. J.

This suit was brought by appellee against appellants upon a promissory note for $58, interest and reasonable attorney's fees, as provided in the note, and for foreclosure of vendor's lien upon certain 20 acres of land. The appellants answered (as applicable to the assignments of error urged here) that they owned a tract of land containing 83.4 acres which was their homestead; that they owed one Dupuy, on account of a certain judgment, the sum of $565 and an additional amount of $81.60 for other causes, which they were unable to pay, and had no property subject to execution; that they were induced through coercion and intimidation on the part of said Dupuy and one Edwards, in consideration of the payment of the said indebtedness, to convey all of said land, except 20 acres, to said Edwards; that on the 19th day of December, 1912, the defendants, in pursuance of the above agreement and under the circumstances inducing same, executed and delivered to J. R. Edwards a deed which the defendants were told and believed conveyed to the said J. R. Edwards 63.4 acres of the above-mentioned land, and did not include therein the 20 acres above mentioned; that it was not their intention and was not the purpose of said agreement to convey to the said J. R. Edwards more than the said 63.4 acres which did not include the said 20 acres; that defendants have since been informed that the field notes in said deed actually covered and embraced the entire 83.4 acres of land above mentioned; that they have been informed that on the same day said Edwards executed a deed to them for the 20 acres of land described in plaintiff's petition, which contains the reservation of vendor's lien; that the transactions above mentioned, to wit, the conveyance of said land by defendants to the said J. R. Edwards and the reconveyance on the same day and as a part of the same transaction of the said 20 acres of same by the said J. R. Edwards to defendants, were simulated and made, without the knowledge and consent of defendants, for the purpose of creating a lien on defendants' homestead, in violation of and for the purpose of evading the homestead exemption laws of Texas; that said transactions are void and without force and effect; that said note sued on in this suit is without consideration and is void, and cannot be enforced against the defendants or their said homestead; that they never received the $58 cash mentioned in the conveyance from them to the said J. R. Edwards, and that the $58 mentioned in the said deed from the said J. R. Edwards to defendant Alex Jenkins, which is claimed to be evidenced by the note sued on in this suit, was not and is not for the purchase money due on said 20 acres of land, nor for taxes due thereon, nor for work and material used in constructing improvements thereon; that the said note was transferred by said Edwards to appellee with full knowledge upon the part of both parties of the above facts. Trial before the court resulted in judgment for appellee for $58 and interest, attorney's fee of $50 and foreclosure of the lien on the 20 acres of land. To which exception was taken and notice of appeal given.

The court made the following findings of fact and conclusions of law:

"I find that the note sued on was executed by the defendant Alex Jenkins.

"I find, at the time of the execution of the note, there was a valid, subsisting judgment in this district court against the defendant Alex Jenkins, which judgment foreclosed a vendor's lien on the 83 acres...