Machicek v. Barcak

• Decision Date: 14 April 1943
• Docket Number: No. 8056.,8056.
• Parties: MACHICEK et ux. v. BARCAK.
• Court: Texas Supreme Court

170 S.W.2d 715

MACHICEK et ux. v. BARCAK.

No. 8056.

Supreme Court of Texas.

April 14, 1943.

Rehearing Denied May 19, 1943.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by Aneska Barcak against August Machicek and wife for the amount of three notes and foreclosure of a vendor's lien on land. A judgment for defendants was reformed by the Court of Civil Appeals, and defendants bring error.

Judgment of Court of Civil Appeals affirmed.

Moss & Moss, of La Grange, for plaintiff in error.

Fertsch & Fertsch, Chas. Fertsch, Marvin D. Fertsch, and C. L. Stavinoha, all of Hallettsville, for defendant in error.

ALEXANDER, Chief Justice.

This is a suit for debt and foreclosure of a lien on land. Foreclosure of the lien was resisted on the claim that the lien securing a part of the debt was attempted to be created after the land had become defendants' homestead, in violation of Article XVI, Section 50, of our Constitution, Vernon's Ann.St.

The tract of land in question was originally owned and occupied by Joseph Machicek and his wife, Johanna, as their homestead. On August 8, 1922, after the death of Johanna Machicek, intestate, Joseph Machicek and four of their five children conveyed the land to August Machicek, the fifth child, for a recited consideration of $6,000, which was made up of cash, $2,400, and credit of $600 for August Machicek's inherited interest in the land, and five notes for $600 each, payable to Joseph Machicek. The deed further provided: "And as a further consideration herein, the said August Machicek obligates and binds himself to take care of and provide the necessary food and shelter for the said Joseph Machicek, during his lifetime, the said Joseph Machicek shall build him a small house upon said herein conveyed premises and shall have all the privileges upon said property and premises as may be necessary for the comfort and convenience of said Joseph Machicek, * * *."

After describing the land, the deed provided: "The grantor herein Joseph Machicek reserves unto himself during his natural life the conditions and reservations made in the consideration clause herein, and upon his death the same to end, cease, and determine and to revert to the then present owner of the herein conveyed property."

The deed expressly reserved a vendor's lien "until the above described notes and reservations are fully paid and carried out." August Machicek and his wife occupied the land thereafter as their homestead.

On October 8, 1924, Joseph Machicek and August Machicek and his wife signed and acknowledged an instrument denominated an "amended deed." This instrument referred to and described the deed of August 8, 1922, and provided:

"Whereas, the parties herein mutually agree that the following provision in said deed shall be cancelled, to wit:" (reciting in full the provision for care and support, first above quoted.)

"And in lieu thereof the following agreement is made. That the said August Machicek shall pay as a part consideration for said land the further sum of Four Thousand ($4,000.00) Dollars to the said Joseph Machicek as follows to wit:

"The sum of Four Thousand ($4,000.00) Dollars to be paid on or before ten (10) years from this date as evidenced by two certain vendor's lien promissory notes, bearing even date herewith, due and payable to Joseph Machicek or order at Flatonia, Texas, One Note for Two Thousand ($2,000.00) Dollars bearing interest at the rate of Six per centum per annum from date hereof until paid, and the other note for Two Thousand ($2,000.00) Dollars bearing interest at the rate of 6% per annum from its maturity. Interest payable annually. And the further consideration that the said Joseph Machicek reserves unto himself during his natural life the rent house in which now Joseph Jalufka lives being in the Southwest corner of said premises together with all rights and privileges thereto belonging together with 25 acres of land in a square on and around said rent house, and reserves unto himself two horses into pasture free, and feed to be furnished by said August Machicek for said two horses.

"Which reservation shall upon the death of said Joseph Machicek revert back to said August Machicek, his heirs and assigns (not meaning thereby the notes given and described hereinabove) * * *."

The instrument provided that a vendor's lien was retained "until the above described notes and all interest are paid in full," and concluded: "This being an amended Deed and shall not vitiate nor change any other terms or considerations stated in the former deed except as herein stated."

The evidence shows that after the execution of the original deed August Machicek took care of his father and provided for his support. In September, 1925, Joseph Machicek went...