Stephens v. Summerfield

• Decision Date: 11 November 1899
• Citation: 54 S.W. 1088
• Parties: STEPHENS v. SUMMERFIELD et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

54 S.W. 1088

STEPHENS v. SUMMERFIELD et al.¹

Court of Civil Appeals of Texas.

November 11, 1899.

Appeal from district court, Dallas county; W. J. J. Smith, Judge.

Action by M. Summerfield and others against Zilphia Stephens and others. Judgment for plaintiffs, and defendant Stephens appeals. Affirmed.

English, Ewing & Walker, for appellant. Watts & Aldredge, for appellees.

FINLEY, C. J.

On the 12th day of February, 1893, appellees brought this suit to recover the amount due upon a promissory note executed by J. C. Criswell, and payable to Zilphia Stephens, for $500, with 10 per cent. per annum interest, and for 10 per cent. attorney's fees, and to foreclose a vendor's lien on three-fourths of an acre of land situated in the town of Cleburne, Johnson county, Tex. (said note was dated May 22, 1889, and due and payable to the order of Zilphia Stephens on May 22, 1894); claiming that said note had been indorsed, negotiated, and sold by Zilphia Stephens to the J. B. Watkins Land-Mortgage Company immediately after its execution, and that said company acquired said note in good faith, for value, and without any knowledge of any defect therein or defense thereto, and that plaintiff acquired the same in good faith, for value, before maturity. Defendants George W. Stephens and Zilphia Stephens answered by demurrers, general denial, and specially that the lot was the separate property of Zilphia Stephens, and the homestead of George W. and Zilphia Stephens, and that the conveyance of the same by them to J. C. Criswell was simulated and pretended, and was made to secure a loan on their homestead, and that it was so understood between them and Criswell at the time the deed and note were executed, and that this was known to the J. B. Watkins Land-Mortgage Company at the time it purchased and secured said note; that Stephens and wife then occupied the lot as a homestead, and had continued so to occupy it ever since. By supplemental petition, plaintiffs asserted as an estoppel a sworn statement of Zilphia Stephens and J. C. Criswell, presented with the note to the land company, in which they stated that the sale and deed were made in good faith, and were not simulated or intended to evade the homestead laws. The case was tried before the court without a jury on the 23d day of March, 1899. The death of George W. Stephens was suggested, and the case discontinued as to him. The trial resulted in a judgment against Criswell for the amount due upon the note, and against Criswell and Zilphia Stephens, foreclosing the lien upon the lot. From the judgment, Zilphia Stephens appealed.

The trial court filed these conclusions of face: "First. The court finds that the land described in plaintiffs' petition was the separate property of defendant Zilphia Stephens, and on the 22d day of May, 1889, that it was, and had been for a long time prior thereto, the residence homestead of George W. Stephens and his wife, Zilphia Stephens. Second. On the 22d day of May, 1889, George W. Stephens and his wife, Zilphia Stephens, by their warranty deed of that date, conveyed said land to defendant J. C. Criswell. The deed was duly acknowledged and recorded. At the time of the execution of this deed, defendant J. C. Criswell executed and delivered the note sued on, which recited that it was given as part purchase money of the lot or parcel of land, and the lien was expressly retained in the deed. Third. About the 6th day of July, 1889, one J. W. Lambard, a broker at Cleburne, at the request of Stephens and wife sent said note, indorsed by Zilphia Stephens, together with the certificate of the county clerk of the record of the deed, and...