Love v. Breedlove

• Decision Date: 24 January 1890
• Citation: 13 S.W. 222
• Parties: LOVE <I>v.</I> BREEDLOVE.
• Court: Texas Supreme Court

13 S.W. 222

LOVEv.

BREEDLOVE.

Supreme Court of Texas.

January 24, 1890.

Appeal from district court, Washington county.

Trespass to try title to a lot in Brenham, by C. R. Breedlove against Angelina Love, who claimed the lot as her homestead, and based her defense on the ground that the deed from her husband and herself under which plaintiff claimed, while absolute in form, was in

fact only a mortgage or deed of trust to secure a debt of defendant's husband, and that it was void because given upon the homestead. The cause was tried before the court, and judgment was rendered for plaintiff, from which defendant appeals.

J. T. Swearingen, for appellant. Bassett, Muse & Muse, for appellee.

STAYTON, C. J.

Appellant and her husband conveyed the property in controversy to Scott Porter, by a deed executed in form and manner sufficient to convey the homestead, which recited consideration paid. Appellee claims through a mortgage with power of sale, executed by Scott Porter, after appellant and her husband had conveyed to him. Appellant now claims that the property was the homestead of herself and husband at the time the conveyance was made to Porter, and that the instrument through which this was done was understood by the parties to be only a mortgage; that the property was a homestead; and that appellant and her husband remained in possession after the deed was made to Porter; and that she so remained until this action was brought is fully shown. It must further be conceded, under the uncontroverted evidence, that appellee is a purchaser for valuable consideration; and, if he purchased without notice that the conveyance to Porter was not on its face what it purported to be, then he is entitled to protection, whatsoever may have been the agreement or understanding between Porter and appellant and her husband. No facts are shown on which the conveyance to Porter could be deemed a mortgage, for there was no indebtedness shown to sustain it. If the deed was not what on its face it purported to be, from all the evidence, it must have been the purpose of appellee and her husband to place the title to the property in Porter, in order that he might raise money on it as a security for the benefit of the husband, or to indemnify him in case he thereafter assumed liabilities on his account. There is some evidence tending to show that some such purpose may have existed, but on the entire evidence the court below found, if the deed to Porter was not intended as an...