Lincoln v. Bennett
| Decision Date | 25 November 1939 |
| Docket Number | No. 12810.,12810. |
| Citation | 135 S.W.2d 632 |
| Parties | LINCOLN et ux. v. BENNETT. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Claude M. McCallum, Judge.
Suit for cancellation of deeds of trust and for injunction by James A. Lincoln and his wife, Blanche Horne Lincoln, against Dale E. Bennett and Hiram F. Lively. Dale E. Bennett filed a cross-action. Hiram F. Lively was discharged on his disclaimer. From the judgment, the plaintiffs appeal.
Affirmed.
Goggans & Ritchie, John B. Stigall, Jr., and Nathaniel Jacks, all of Dallas, for appellants.
Lively, Dougherty & Alexander, of Dallas, for appellee.
James A. Lincoln and wife, Blanche Horne Lincoln (appellants), filed this suit against Dale E. Bennett (appellee) and Hiram F. Lively, seeking the cancellation of three certain deeds of trust, in which Bennett was beneficiary, and for an injunction to prevent Lively, trustee in each of the deeds of trust, from selling lands conveyed as security for certain notes; two of the deeds of trust conveyed the identical property situated on San Jacinto Street in the City of Dallas, to secure two notes, one dated July 5, 1926, for $8,000, and the other dated March 22, 1928, for $2,000. The other deed of trust conveyed a lot on Harwood Street in the City of Dallas, to secure a note for $7,000, dated May 31, 1927.
Lively filed a disclaimer showing that he had no interest in the litigation, other than as trustee in the deeds of trust. Appellee Bennett answered and, in a cross action, sought judgment for the amount due upon the three notes and for foreclosure upon the lands conveyed in trust to secure same.
The other deed of trust, conveying the lot on Harwood Street, as before stated, was to secure the payment of a note for $7,000, and the only question presented on this appeal is, as to appellee's right to foreclose the lien of the trust deed on said property, as against appellants' homestead claim. Both in his answer to appellants' suit and in his cross action against them, seeking judgment for debt and foreclosure, appellee Bennett alleged that, the note for $7,000 and the deed of trust given upon the Harwood Street property to secure same, were executed for the purpose of renewing and extending a note dated May 25, 1922, in the principal sum of $7,000, payable on May 25, 1927, to G. H. Schoellkopf, which was taken up, renewed and extended by appellee at the special instance and request of appellants, and was duly transferred to appellee by the trustees of the Schoellkopf estate (the payee having died), in consideration of the payment of the $7,000 note held by the estate against appellants. Appellee further alleged that, at the time of the Schoellkopf transaction, and as a part thereof, appellants, on May 22, 1922, duly executed and acknowledged a homestead designation, designating as their homestead certain other property then owned by them, located on Lindsley Avenue in the City of Dallas, declaring that, the designated property was then held, used and occupied by them as their homestead, and that their homestead claim did not embrace any other lands; that the designation was duly recorded in the deed records of Dallas County, which, together with an abstract of title showing the record of the trust deed, were furnished by appellants to Lively, who, in all the transactions here involved, acted for and on behalf of Bennett, were examined and considered by him before accepting the transfer of the Schoellkopf note and consummating the transaction; that at the time, and as an inducement, James A. Lincoln represented to Lively that the Schoellkopf note was secured by a valid subsisting first lien on the Harwood Street property; that same was not appellants' homestead and was not used and occupied by them as such on May 25, 1922, when the Schoellkopf note and deed of trust were executed by appellants; that, at the time of the purchase and extension of the Schoellkopf note, neither Bennett nor Lively knew or had any notice that, on May 25, 1922, appellants were claiming, using or occupying the Harwood Street property as their homestead, nor of the falsity of the statements made by Lincoln, nor of the falsity of the statements contained in the designation; but, believing and relying upon the truth of said statements by Lincoln, and upon the truth of the facts revealed by the record, that is, the trust deed and the statements recited in the homestead designation, Lively (acting for appellee) was induced to purchase the Schoellkopf note, to renew and extend same, and accept the Harwood Street property as security for the note given in lieu of the Schoellkopf note; also alleged that, appellants fraudulently concealed from Lively, and failed to disclose the true facts respecting the homestead status in May, 1922, of the Harwood Street property, with the intention of inducing him to purchase the Schoellkopf note and trust deed securing same, and to renew and extend the indebtedness, but for such fraudulent concealment, Lively (acting for appellee Bennett) would not have purchased the Schoellkopf note and accepted from appellants the renewal note and deed of trust on the Harwood Street property; that Hiram F. Lively (acting for and on behalf of appellee), relying upon and believing the statements of James A. Lincoln, and relying upon and believing the facts revealed by the record and the statements contained in the homestead designation, and because of appellants' concealment and failure to disclose the material facts, that is, that said property was their homestead and was used and occupied by them as such at the time of the inception of the Schoellkopf loan, was persuaded and induced to purchase said original note and to pay $7,000 therefor, and accept appellants' note and deed of trust in renewal and extension of the Schoellkopf indebtedness, therefore, appellants are estopped to assert the invalidity of the original lien.
The cause was submitted to a jury on special issues. It is not disputed that, at the time the Schoellkopf loan was consummated in May, 1922, the Harwood Street property was the homestead of appellants, and that, the statements contained in their homestead designation to the contrary were untrue, and that all other statements or implications contradictory of the idea of its being their homestead at the time were untrue.
Bearing upon the issue of estoppel, the jury made the following findings: That, at the instance of James A. Lincoln, Judge Lively, acting for and on behalf of Mr. Bennett, purchased the Schoellkopf note, paying therefor $7,000 in cash, and at that time, did not know that, in May, 1922, when the Schoellkopf loan was consummated, the Harwood Street property was being used and occupied by appellants as their homestead; that Mr. Lincoln represented to Lively that the Harwood Street property was not appellants' homestead at that time, and, furthermore, that the Schoellkopf note was secured by a valid lien on said property. The jury also found that, such representation was believed by Lively, but that it was not relied upon by him.
In view of the undisputed evidence, we are of opinion that, what the jury meant to say—and that their answer should be so construed—was that, Judge Lively did not rely exclusively upon the statement of Lincoln that the Schoellkopf note was secured by a valid lien on the Harwood Street property. The testimony of Judge Lively, undisputed, is that Lincoln told him the Harwood Street property was not appellants' homestead in May, 1922, when the Schoellkopf loan was made, represented that the Schoellkopf note was a valid lien upon the property, furthermore, that appellants had designated the Lindsley Avenue property as their homestead, which, on investigation, Lively found to be true; that these facts, together with the abstract furnished by Lincoln exhibiting a good and valid lien on the Harwood Street property, securing the Schoellkopf note, altogether were relied upon, and induced him to take up and extend the note. So, in view of this undisputed testimony, we think the jury intended to say that, in consummating the loan, Judge Lively did not rely exclusively upon Lincoln's representation that, the Schoellkopf note was secured by a valid lien upon the Harwood Street property. No other reasonable interpretation can be given the answer, in view of the undisputed evidence and the other findings.
However that may be, the jury also found that Judge Lively believed and relied upon the facts stated by appellants in their homestead designation (executed as a part of the Schoellkopf transaction), to the effect that, on May 22, 1922, the Lindsley Avenue property was then occupied, held and used by them as their homestead and that their homestead claim did not embrace any other lands, and further found that appellants failed to inform Lively, at or before he purchased and paid for the Schoellkopf note, that the Harwood Street property was used and occupied by them as their homestead when the Schoellkopf loan was made.
The parties, respectively, filed motions for judgment on the verdict and, in the alternative, for judgment non obstante veredicto. Appellants' motion was overruled and that of appellee being sustained, judgment was rendered that, appellants take nothing by their suit, that they were estopped to assert the invalidity of the lien on the Harwood Street property as against appellee, that the injunction theretofore granted be dissolved, that appellee recover on his cross action against appellants, the amount, principal,...
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Lincoln v. Bennett
...From an adverse judgment, the plaintiffs appealed to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 135 S.W.2d 632, affirming the judgment, the plaintiffs bring Judgments of trial court and Court of Civil Appeals reversed in part, and affirmed in part, and j......