Lacey v. Clements

• Decision Date: 01 January 1871
• Citation: 36 Tex. 661
• Parties: ELIZA LACEY v. J. CLEMENTS AND OTHERS.
• Court: Texas Supreme Court

36 Tex. 661

ELIZA LACEY

v.J. CLEMENTS AND OTHERS.

Supreme Court of Texas.

1871.

1. To give rise to a resulting trust, the money must be paid at the time of the purchase of the land.

2. The domicile of a husband is, in contemplation of law, the domicile of the wife.

3. The mere fact that a married woman was never in Texas during her husband's lifetime does not debar her homestead rights in land purchased by him for homestead purposes. To forfeit her homestead rights, there must have been an abandonment by her of her husband. If her absence from this State was with her husband's consent, her homestead rights are not prejudiced, but will be enforced, after the husband's death, against a purchaser under his administrator. The head-note to the contrary in Meyer v. Claus, 15 Texas, 516, is more unconditionally stated than the rulings in that case warrant.

4. It has been the policy of Texas, ever since her Independence, to encourage and secure homestead rights.

5. A widow brought trepass to try title, for land claimed by her as homestead. Defendants claimed the land under their vendor's purchase of it at a sale of the administrator of plaintiff's deceased husband. Held, that it was competent for the plaintiff to prove that the administrator's sale and deed were based on a Confederate money consideration. This court has never held valid any Confederate money transactions by executors, administrators, guardians, or trustees, except where the creditors or other beneficiaries had themselves affirmed such transactions.

APPEAL from Hardin. Tried below before the Hon. Wm. Chambers.

So far as the facts are involved in the rulings, they are indicated in the opinion of the court.

W. B. Cline, and F. C. Usher, for the appellant.

C. L. Cleveland, and Moore & Shelley, for the appellees.

WALKER, J.

This is an action brought by the appellant, to establish her homestead right in what is known as the Sour Lake property, embracing about one thousand acres of land, and situated in Hardin county.

The appellees set up title to the property through two deeds; the one, calling for an undivided half of the property, from the administrator of Wm. C. Lacey's estate; the other, calling for the remaining half, from Wm. R. Smith. It appears from the record that Wm. C. Lacey became a transient inhabitant of Texas in the year 1852, being engaged in railroad matters. In 1856, having concluded to make Texas his home, he purchased from different persons the Sour Lake property, which seems to have been held by a joint stock company.

The purchase seems to have been made in part on deferred payments, to secure which notes and mortgages were given. The consideration appears to have been eight thousand six hundred dollars. Between one and two years after the purchase by Lacey, Wm. R. Smith purchased these notes and mortgages, amounting, principal and interest, to four thousand seven hundred dollars. He also purchased an older mortgage over the property, amounting to eleven hundred dollars. Lacey sold the whole of the property to Smith; the half of which Smith reconveyed to Lacey, at the same time leasing him the remaining half. This conveyance by Lacey to Smith, it would seem, was intended to discharge the claims which Smith held against the property, and after the conveyance of one-half from Smith to Lacey, the latter appears to have held the one-half unencumbered by notes or mortgages.

We see no ground whatever for the application of the doctrine contended for by the attorneys of the appellees. Smith paid no part of the original purchase-money, at the time the purchase was made by Lacey from the stockholders. No subsequent advance of money, after the purchase was complete, can become the subject of resulting trust; the advance of money must be coeval with the execution of the deed, in order to create a resulting trust. (9th ed. Kent's Com., Vol. IV., 338 and Note; Bottsford v. Burr, 2 Johns, Ch. R., 408, 414.)

But it is urged that no homestead right could attach in favor of Lacey whilst the original purchase-money remained unpaid, and Smith becoming the assignee of the notes and mortgages given by Lacey, no right of homestead could attach against him. This is certainly true, and applies to the condition of things up to the date of Smith's own deed to Lacey for the one undivided half of the...