"Findings of fact: (1) That prior to August 1, 1883, defendant Martin McCarty and Page McDannell were partners, engaged in the wholesale liquor business in Austin, Tex., and that, on or about said 1st day of August, they, by mutual consent, dissolved said partnership, and by the terms of said dissolution said McCarty agreed to pay all the liabilities of the partnership, amounting to about seventeen thousand dollars, and he took the stock and fixtures, worth about twenty-two thousand dollars, and continued the business. (2) That, a short time before said dissolution of said partnership, said McCarty and his wife sold their homestead in Austin, Tex., to G. W. Littlefield, for $10,000; and said McCarty had received, as part payment therefor, said Littlefield's purchase-money note for $5,000, which was valuable commercial paper. (3) That, at the time of the dissolution of said partnership, said McCarty agreed with said McDannell that, after paying off the balance due on the homestead sold to Littlefield, he would use the remainder of the proceeds of the sale in his business, to protect McDannell against his liability on said $17,000 firm indebtedness. (4) That, about the time of said dissolution of partnership, McCarty contracted for the purchase of the property in controversy from T. J. Moore and wife, of San Antonio, Tex., acting by their agent, M. B. Sweeney, in Austin, Tex., for $2,500. (5) That after said dissolution, and before the consummation of said purchase, said McDannell objected to McCarty investing any of his means in a homestead until he had paid off the liabilities of said firm, which he had assumed, whereupon McCarty and plaintiff entered into the following parol agreement, to wit, that McCarty should temporarily withdraw $2,500 from his business, and pay Moore and wife for the property, and have them make a deed to plaintiff, conveying the property to him, and that after thirty days from that time plaintiff would, on demand, advance to McCarty $2,500 to replace the amount so withdrawn from his business, and that said deed was to be delivered to plaintiff, and he was to hold the deed to said property, and have a lien thereon, until McCarty repaid the $2,500 and interest, when he was to convey to McCarty. (6) That said McCarty's business was in such a condition that he could not have permanently withdrawn the $2,500, to pay for the property, from his business, without endangering the success of his said business, and impairing his commercial standing; and the agreement he made with the plaintiff, as hereinbefore stated, enabled him to procure said property, subject to plaintiff's lien thereon, without such results following. (7) That on August 1, 1883, in pursuance of the aforesaid contract of sale between Moore and wife and McCarty, Moore and wife executed, and had properly acknowledged, a deed conveying said property to said McCarty, which, on the 3d day of August, 1883, was, by said T.J. Moore, delivered to McCarty, in said Sweeney's office, in Austin, Tex.; and said McCarty then and there paid said Moore for said property the sum of $2,500 in cash, which he had just received from J. H. Raymond & Co.'s bank by discounting the aforesaid Littlefield note for $5,000. (8) That said McCarty, soon after receiving said deed from Moore and wife to him, delivered the same to M. B. Sweeney, with instructions to return it to said Moore and wife, and get them to execute another in lieu thereof, conveying the property to plaintiff, which was done; and on the 7th day of August, 1883, said Moore and wife executed, and had properly acknowledged, a deed conveying said property to plaintiff, which they returned, and caused to be delivered to said Sweeney, and which, about the middle of said month, was delivered to plaintiff, and was duly recorded in the land records of Travis county. (9) That on the 24th day of August, 1883, plaintiff made the following indorsement upon said deed: `Know all men by these presents, that Justin McCarty has, this twenty-fourth day of August, paid me twenty-six hundred dollars, for which I am to make him a deed to the within property whenever he desires, and in the mean time this can be used as a basis of credit in the First National Bank for two thousand dollars; all expenses of making deed, and acknowledging, etc., to be paid by McCarty. J. T. BRACKENRIDGE.' This indorsement was not a contract or agreement between plaintiff and McCarty, but was a voluntary statement in writing, made by the plaintiff, for the protection of McCarty in the event of plaintiff's death before McCarty got the twenty-five hundred dollars, as agreed upon, to replace the money withdrawn from his business to pay for said property; but McCarty knew this indorsement was on the deed before he got the money. (10) That on the 18th day of September, A. D. 1883, McCarty called on the plaintiff for the twenty-five hundred dollars, in pursuance of the parol agreement, and plaintiff caused the same to be paid to him by the First National Bank of Austin, which he used in his business. (11) That at the time of the receipt of the said
twenty-five hundred dollars, as aforesaid, said McCarty executed his promissory note for same, payable to said First National Bank, of which plaintiff was and is now president, with twelve per cent. interest and ten per cent. attorneys' fees, etc., which note was renewed for the same amount, and on substantially the same terms, November 20, 1883, and March 24, 1884. On January 27, 1887, the note of March 24, 1884, was renewed for same amount, payable thirty days after date, with same interest, etc., and made payable to J. T. Brackenridge, president, at the First National Bank, Austin, Tex. The first of these notes has this statement in it: `Deed for lot where I live, — collateral security.' The last note, January 27, 1887, contains this statement: `Purchase money for house and lot now occupied by Dr. Weisselberg in the city of Austin, Travis county, Texas.' It was shown by proof that, when the first note was executed, McCarty resided on the property in controversy, and, when the last note was made, Dr. Weisselberg, as McCarty's tenant, resided upon it. (12) That as between plaintiff and said bank, of whose board of directors plaintiff was and is president, it was understood that said agreement between him and McCarty was his individual transaction, and he is liable to said bank for said $2,500. (13) That plaintiff had no notice of the execution or delivery of the deed from Moore and wife to McCarty until after the latter failed in business, in February, 1887, and he let McCarty have the $2,500 in good faith, believing, from McCarty's statements and acts, that the deed from Moore and wife to him was the only one they had executed to convey said property; but he did have notice that they were purchasing said property for a homestead, and that they were occupying it, when he let McCarty have the money. (14) The defendants took possession of the property in controversy about the 1st of September, 1883, and were occupying it as a home when plaintiff paid McCarty the $2,500, and have so continued to occupy it most of the time since then; but defendant Martin McCarty did not claim it as a homestead, as against plaintiff's said debt, until after his failure in business, in February, 1887. (15) The defendant Josephine McCarty had no knowledge of said transaction between plaintiff and her husband, and of the deed being made by Moore and wife to plaintiff, until after her husband's failure in business, but thought the property had been deeded to her said husband; and she has claimed it all the time as her homestead, and does so now.
"Conclusions of law: (1) That plaintiff is entitled to judgment against defendant Martin McCarty for $2,500.00, with twelve per cent. interest thereon from the ___ day of ___, 1887, to date, and ten per cent. as attorneys' fees on the first amount, and for costs. (2) That the deed from Moore and wife to Martin McCarty, as against the rights of plaintiff under the contract made with said McCarty, was and is inoperative, and cannot be made the basis of defendants' homestead rights, because plaintiff furnished the $2,500.00 believing, from the acts and representations of said McCarty, that the title to said property had been conveyed from said Moore and wife to him, and without any notice of the execution of said deed to McCarty. (3) That defendants cannot, as against plaintiff's right under said contract and agreement with Martin McCarty, assert homestead right under the deed to plaintiff, because the effect of said agreement was to subrogate plaintiff to the rights of a vendor of the premises. (4) It is therefore held that plaintiff has a lien on said premises,...
