Llewellyn v. First Nat. Bank

Decision Date02 July 1924
Docket Number(No. 6781.)
Citation265 S.W. 222
PartiesLLEWELLYN et ux. v. FIRST NAT. BANK OF LAMPASAS.
CourtTexas Court of Appeals

Appeal from District Court, Lampasas County; Lewis H. Jones, Judge.

Suit by the First National Bank of Lampasas against H. H. Llewellyn and wife. From a judgment for plaintiff, defendants appeal. Affirmed.

E. M. Dodson and Nat Llewellyn, both of Marlin, and H. F. Lewis, of Lampasas, for appellants.

Roy L. Walker, of Lampasas, for appellee.

McCLENDON, C. J.

This was a suit by the First National Bank of Lampasas against H. H. Llewellyn, to recover the balance due upon two notes, and against Llewellyn and wife to foreclose a deed of trust upon 112½ acres of land situated in Falls county, executed by them as security for the notes. Personal liability of H. H. Llewellyn on the notes was not contested. As a defense to the action to foreclose the deed of trust, defendants pleaded that the property was their homestead at the time the deed of trust was given. In addition to a denial of this plea of homestead, plaintiff pleaded estoppel, alleging that defendants were not living upon the property when the trust deed was given, had designated other property as their homestead, and had represented to plaintiff, verbally and in the deed of trust, that the 112½ acres was not their homestead, and that plaintiff, relying upon these representations, had loaned the money evidenced by the notes and taken the trust deed as security.

This appeal is by the defendants below from a judgment in favor of plaintiff foreclosing the trust deed, which judgment was rendered upon a directed verdict. The only question in the case is whether appellants, under the evidence, were estopped as a matter of law from asserting the defense of homestead. The facts in the case, which are without dispute, follow:

Appellants were married in 1895, and shortly thereafter moved upon the property in suit, and continuously lived there up to the year 1916, when they moved to Waco, where they lived continuously until 1922, occupying a rented house. Their purpose in moving to Waco, as testified to by Mrs. Llewellyn and her brother, was to educate her daughter and have her treated by a physician. In 1918 appellants executed, acknowledged, and caused to be recorded in the deed records of Falls county an instrument, in which they designated as their homestead 223 acres of land in Falls county, which was the separate property of Mrs. Llewellyn. This designation stated that they waived and relinquished all exemption rights in the 112½ acres. At the time of making this designation, or shortly thereafter, appellants borrowed $2,500 from a loan company, securing it by deed of trust upon part of the 112½ acres. The deed of trust in suit was dated November 23, 1921, and was given to secure the two notes described in plaintiff's pleadings. This deed of trust recited that the property in question was not the homestead of appellants, and designated the 223 acres as their homestead. It also recited that it was subject to the previous deed of trust, and authorized the payee in the notes it secured to pay the prior lien indebtedness. In negotiating the loan represented by the notes sued on, the plaintiff bank was represented by its president, H. N. Key, who testified that before making the loan he went to Waco to see Mr. Llewellyn, and they together went to Falls county to look at the property. Mr. Llewellyn told Mr. Key that he had formerly lived upon the 112½-acre tract, but had not lived there for a number of years, that he had designated the 223 acres as his homestead, and that the 112½ acres was not his homestead. He did not know that Mr. Llewellyn was renting a house in Waco, but knew that he was not claiming a homestead there, but was claiming the 223 acres. He also knew that the Llewellyns did not live on the 223 acres, and Mr. Llewellyn told him that he had never lived there. We quote from his testimony:

"In making the loan testified to to Mr. Llewellyn, I made that loan upon the representations made to me by Mr. Llewellyn in person, and also written into the deed of trust, that this land was not his homestead, and, relying upon these representations, I made the loan, and would not have made it otherwise. I would not have made the loan if he had not made these representations to me."

Mr. Llewellyn did not testify in the case, and the testimony of Mr. Key stands without contradiction. The principles of law which control the question at issue are so well settled by adjudications in this state that it is unnecessary to discuss them at length, or to review the supporting authorities.

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    • United States
    • United States State Supreme Court of Mississippi
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