Ullman v. Jasper

• Decision Date: 12 April 1888
• Parties: ULLMAN <I>et al.</I> v. JASPER <I>et al.</I>
• Court: Texas Supreme Court

Page 763

7 S.W. 763

ULLMAN et al. v. JASPER et al.

Supreme Court of Texas.

April 12, 1888.

Appeal from district court, Hill county.

This appeal involves the ownership of lots 20, 21, and 62 in town of Hillsboro. The parties W. H. and Damaris Grant were married January 29, 1883. At their marriage the husband had but little property. The wife owned several tracts of land. The lands were quickly sold. With about $500 of the wife's money, Grant bought a stock of groceries from plaintiffs, paying half cash, and balance on credit. The business was carried on in the husband's name. The money realized in sales was deposited in bank to his own account, as was the money he received from the sales of his wife's lands. The common fund was used to support the family, and was drawn upon to keep up the stock. After being in business about three months, Grant bought lots 20 and 21, taking deed to himself; the deed reciting a cash payment of $258.50, and the assuming by Grant of a note of $155. In his testimony Grant stated these payments were made in some way out of his wife's money. Grant and wife used these lots as a homestead, their dwelling being on lot 21; stables, etc., on lot 20. The lots were inclosed together, and without partition. November 9, 1883, Grant's stock of goods was seized under attachment sued out by Ullman, Lewis & Co. On the day the attachment was levied, Grant, by arrangement with Cox & Bell, obtained their names as sureties to his replevy bond, and thereby received possession of his stock; Grant and wife executing to them a deed for the homestead, in consideration of their note for $800, retaining vendor's lien, and bearing 10 per cent. interest. At this time Grant and wife resided on the lots 21 and 20. At the time, it seems to have been understood that, if Cox & Bell should be released from the replevy bond, they would deed the property back, the purchase-money note remaining in the hands of one McKinnon, as security for Cox & Bell. January 1, 1884, Grant and wife moved to Hillsboro and took charge of a rented hotel, leaving a part of their household goods. Cox & Bell never took possession. January 29, 1884, they conveyed the lots to Mrs. Damaris Grant in consideration of the cancellation by W. H. Grant of their purchase-money note. March 1, 1884, Ullman, Lewis & Co. recovered judgment against the firm of which W. H. Grant was partner. An abstract of the judgment was filed with the county clerk, and was recorded April 7, 1884. On April 7th, Grant placed lumber upon lot 20 for a tenant house, which was soon thereafter erected, and was occupied by a tenant. In May, 1884, Grant and wife returned to their residence, and thereafter occupied the dwelling on lot 21, and stables, etc., on lot 20, as before their removal. April 9, 1884, Grant, for his wife, bought lots 61 and 62, which lie 300 or 400 yards from his residence. They were unimproved. Grant not having money enough of his wife's funds to pay for both lots, and wishing to incumber one to raise funds for building purposes, paid $125, the full price, for lot 61, and executed his own note for $100, — the purchase-money for lot 62, — the vendor refusing to take the wife's note. The deed was to the separate use of Mrs. Grant, and retained the vendor's lien upon the lot not paid for. July 16, 1884, Grant and wife conveyed the entire property— lots 20, 21, 61, and 62 — to defendant Jasper, in consideration, in part, of other lands which were conveyed to Mrs. Grant's separate use. In August, 1884, plaintiff caused an execution to be levied upon the lots, and on the first Tuesday in September, 1884, the lots were sold under execution, the plaintiffs becoming the purchasers. They sue for the lots, claiming under their judgment lien fixed April 7th, and sale in September. The defendant Jasper made Grant and wife parties. The pleadings set up in defense that the lots 20, 21, and 62 were the separate property of Mrs. Grant, and also homestead rights. On the trial there was testimony tending to show that the lots 20 and 21 were paid for out of the separate property of the wife. The transaction of the purchase of lot 62, as given above, was proved.

B. D. Tarlton, for appellant. W. L. Booth, S. C. Upshaw, and Abbot & Ivey, for appellee.

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