McMullan v. San Antonio Joint Stock Land Bank

• Decision Date: 07 December 1934
• Docket Number: No. 1344.,1344.
• Parties: McMULLAN et ux. v. SAN ANTONIO JOINT STOCK LAND BANK OF SAN ANTONIO.
• Court: Texas Court of Appeals

78 S.W.2d 669

McMULLAN et ux. v. SAN ANTONIO JOINT STOCK LAND BANK OF SAN ANTONIO.

No. 1344.

Court of Civil Appeals of Texas. Eastland.

December 7, 1934.

Rehearing Denied January 18, 1935.

Error from District Court, Scurry County; A. S. Mauzey, Judge.

Action in trespass to try title by the San Antonio Joint Stock Land Bank of San Antonio against R. L. McMullan and wife. Judgment for plaintiff, and defendants bring error.

Affirmed.

Scarborough & Ely, of Abilene, for plaintiffs in error.

J. M. Harris, of Snyder, and Wm. F. Koch, of San Antonio, for defendants in error.

HICKMAN, Chief Justice.

This was an action in trespass to try title to 4,373 acres of land instituted by defendant in error, San Antonio Joint Stock Land Bank of San Antonio, against plaintiffs in error, R. L. McMullan and wife, Mary L. McMullan. Defendant in error acquired title to the land under a sale by the trustee in a deed of trust executed by the plaintiffs in error, and it was stipulated upon the trial that plaintiffs in error were the common source of title, and that the sale made under the powers contained in the deed of trust was regular and valid to all the property, save and except 200 acres which plaintiffs in error claim as a homestead. As to this 200-acre tract specifically described in the answer, it was contended that the deed of trust was void, and the only question presented below was the homestead question. That is likewise the only question presented here. To the answer of plaintiffs in error setting up a claim of homestead, the defendant in error, by supplemental petition, pleaded, among other defenses, that the plaintiffs in error were estopped from asserting any homestead claim to this 200-acre tract because (a) it was induced to take up a loan made to the McMullans six years before it made its loan by an affidavit executed by the McMullans to it that their homestead had never been on the property involved in the suit, and by the further fact that in the deed of trust to secure its loan to them, they designated property owned by them in the town of Snyder as a homestead; (b) the McMullans had theretofore executed various instruments and designations, all of which were of record, and all of which showed their homestead to be a certain house and lot owned by them at the time in the town of Snyder; (c) that the loan made by it to the McMullans was for the purpose of paying off and discharging a prior lien on this land, and it was subrogated to all rights of the prior lienholder; that after this prior lien was fixed, the McMullans sold the property, and in the deed the purchasers assumed the original loan as a part of the consideration; that later the McMullans repurchased the same, and, by the terms of the deed, accepted title subject to the outstanding indebtedness; (d) that the McMullans made such use of two or more pieces of property as to make the question of which was their homestead dependent upon their own intention, and having induced defendant in error to make the loan by declaring other property to be their homestead, they are now estopped from asserting that the 200 acres claimed was, and is, their homestead.

After all evidence had been introduced, the trial court instructed the jury to return a verdict in favor of defendant in error, who was the plaintiff below, and, on the verdict returned in accordance with the instruction, judgment was rendered that defendant in error recover of plaintiffs in error title to and possession of all the land described in their petition, including the 200 acres in controversy. The judgment recites, as a reason for giving the peremptory instruction, that the court was of the opinion that, under the undisputed evidence, defendants were estopped from asserting any homestead right to the 200 acres of land claimed by them. We concur in this conclusion for the reasons hereinafter set forth.

On January 3, 1921, plaintiffs in error borrowed $40,000 from F. B. Collins Investment Company, for which they executed their bond or note. To secure the payment of this indebtedness, they executed a deed of trust, and at the same time signed and acknowledged a homestead designation, in which they designated a certain house and lot in the town of Snyder as their homestead. At that time they had owned this house and lot about twenty years, and had owned the ranch for more than twenty years. For many years Mrs. McMullan and their children had occupied this town property during the school term, but Mr. McMullan had spent most of his time on the ranch, where the family spent their vacations between sessions of school. After this deed of trust to F. B. Collins Investment Company was executed, the McMullans by general warranty deed, conveyed the entire ranch property, including the 200 acres now claimed as their homestead, to Verne McMullan and Connie McMullan, for a recited consideration of $82,000 as follows: $2,000 cash, $40,000 in notes, and the assumption by the vendees of the $40,000 loan to F. B. Collins Investment Company. Several years thereafter, and on December 3, 1926, Mr. and Mrs. McMullan made application to defendant in error for a loan to take up this old indebtedness, and on the next day, to wit, December 4, 1926, Verne and Connie McMullan deeded the ranch back to R. L. McMullan, one of the plaintiffs in error, and as a part of the consideration for that conveyance, the vendee accepted title to the premises subject to the payment of the outstanding indebtedness against same. In the sworn application of December 3, 1926, made by R. L. McMullan to the defendant in error requesting a loan of $45,000 on the ranch property, it was stated that the purpose was to take up an existing loan held by Missouri State Life Insurance Company, assignee of F. B. Collins Investment Company,...