Third Nat. Bank v. McClung

• Decision Date: 10 March 1926
• Docket Number: (No. 2623.)
• Citation: 281 S.W. 281
• Parties: THIRD NAT. BANK OF PLAINVIEW v. McCLUNG et ux.
• Court: Texas Court of Appeals

Page 281

281 S.W. 281

THIRD NAT. BANK OF PLAINVIEW v. McCLUNG et ux.

(No. 2623.)

Court of Civil Appeals of Texas. Amarillo.

March 10, 1926.

Appeal from District Court, Hale County; R. C. Joiner, Judge.

Action by the Third National Bank of Plainview against John McClung and his wife, Daisy McClung. From a judgment against defendant first named alone, plaintiff appeals. Reversed and remanded.

Kinder & Russell and Williams & Martin, all of Plainview, for appellant.

Kirk & Griffin, of Plainview, for appellees.

JACKSON, J.

The Third National Bank, plaintiff, instituted this suit in the district court of Hale county, Tex., against John McClung and his wife, Daisy McClung, defendants, to recover the sum of $3,449.88, with interest and attorney's fees, evidenced by a note dated August 18, 1923, payable in 60 days after date at Plainview, Tex., and to foreclose a lien on the northwest one-fourth of section 26, block S. I., Hale county, Tex., evidenced by a deed of trust dated October 5, 1922, and duly executed and acknowledged by both of the defendants, to secure the payment of said note, interest, attorney's fees, etc., and to foreclose a chattel mortgage on certain personal property given as security for the note.

The defendant Daisy McClung, joined by her husband, John McClung, individually, and as next friend of her two minor children, Earl and Alfred Elrod, answered by general denial, and pleaded specially: That she was the wife of John McClung, to whom she was married prior to November 16, 1918, and that by a former marriage she was the wife of Owen Elrod, deceased, and that her two minor sons, Earl and Alfred, were the children of herself and her deceased husband That the land described in plaintiff's petition, and on which it sought to foreclose a lien, was purchased by her after the death of her first husband, and before her marriage to her codefendant, John McClung, for a consideration of $2,840, $1,920 of which was paid out of her separate property, and $920 of which was paid out of the community property of herself and her deceased husband. That prior to November 16, 1918, John McClung and one Mike Barbain were jointly indebted to the plaintiff for money previously borrowed, which they had failed to pay. That plaintiff, through its officers, approached her on several occasions to induce her to sign a note with her codefendant for said indebtedness, and execute a deed of trust on said land to secure the payment thereof. That she first refused to do so, and informed the plaintiff that the land belonged to her and her two minor sons, and was purchased by her for a homestead, and that since her marriage to her codefendant they had at all times intended to use and occupy same as a home as soon as they were able to build a house thereon. That they owned no other home, and have put a part of this land in cultivation, dug a well thereon, and inclosed it with a fence, which was done for the purpose of occupying it as a home, all of which was known to plaintiff. That she was advised by an officer of the bank that it did not want the land, would not take it from her, but it borrowed money with notes as collateral, but could not so use said note unless renewed and its payment secured with a deed of trust on said land, but that the land would not be taken if defendants were unable to pay the note. In consequence of these statements, upon which she relied, she was induced to sign a note renewing the prenuptial obligation of her husband, and execute a deed of trust to secure the payment thereof. That relying on such representations, they executed the note and deed of trust sued on, in renewal of the first note and deed of trust signed by her. That they have never abandoned their intention to use and occupy the land as a homestead, and still intend to do so as soon as they are able to build thereon. That they are cultivating the land at this time, and occupied it as a home during a part of the year 1924.

Plaintiff, in a supplemental petition, pleaded general denial.

In response to special issues submitted by the court, the jury found that on October 5, 1922, the date of the execution of the deed of trust by the defendant, it was then their intention to occupy the land in controversy as their home, and that on said date they had made preparations to occupy said land as such. On this verdict the court entered judgment that appellant take nothing in its suit against appellee Daisy McClung, and that the lien evidenced by the deeds of trust be canceled and held for naught, and that appellant have judgment against the appellee John McClung in the sum of $4,552, with interest from the date of the judgment until paid at the rate of 10 per cent. per annum, for costs, etc.

Appellant, by several assignments, assails, as error, the action of the trial court in refusing its requested peremptory instruction, and in entering judgment canceling its lien against the land, and in refusing it a foreclosure, because the evidence is not sufficient to present the issue of homestead, and does not sustain the findings of the jury, and did not authorize the judgment canceling its lien.

Mrs. McClung testified: That before she married her present husband, John McClung, in the year 1917, she was the widow of Owen Elrod, deceased. That Earl and Alfred are the minor sons of herself and her deceased husband. That while a widow she purchased the land in controversy for a home for a consideration of $1,920, $1,000 of which she paid out of her separate estate, and $920 of which she paid out of the community estate of herself and her deceased husband. That there was 45 acres of the land in cultivation at the time she acquired it. That she lived with her father for a while, but after she married...