Uptmor v. Janes
| Decision Date | 11 March 1948 |
| Docket Number | No. 2706.,2706. |
| Citation | 210 S.W.2d 235 |
| Parties | UPTMOR et ux. v. JANES et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, McLennan County; D. W. Bartlett, Judge.
Trespass to try title by Will Uptmor and wife against D. T. Janes and others. Judgment for defendants and plaintiff appeals.
Affirmed.
J. W. Spivey and J. A. Kibler, both of Waco, for appellants.
John B. McNamara and H. S. Beard, both of Waco, for appellees.
This is a trespass to try title suit brought by Will Uptmor and wife. The facts reveal that Uptmor was indebted to the West National Bank in the sum of approximately $700, and to the Internal Revenue Department of the United States for something in excess of $1,800 as income tax which had accumulated over a period of eight or ten years. Uptmor borrowed from the West bank the sum of $2,500 and he and his wife executed a deed of trust upon their homestead for the purpose of securing said amount. Out of the amount so borrowed he paid to the Internal Revenue Department the sum of $1,829 for income tax that was then due. He also owed D. T. Janes the sum of $481.25, which was secured by a mechanic's and materialman's lien on his homestead, and owed other indebtedness that he was anxious to pay. The evidence shows that he made a trade with R. M. Deveny to the effect that he and his wife would deed to Deveny their homestead for a recited consideration of $9,000, that Deveny would execute a note for the sum of $3,750 as part of the purchase price, and that Deveny would re-convey the property to the Uptmors after they received the money from the note. Uptmor and his wife, on October 27, 1937, executed a warranty deed in which they purported to convey the land in question for a recited consideration of $9,000, and as part of said sum a note for $3,750 was executed by Deveny, payable to the guardian of James W. Vitatoe, an N. C. M., he having prior thereto agreed to advance for his ward that amount as part of the purchase price of said property. A vendor's lien was reserved in said deed to secure the payment of said note and it was further secured by a deed of trust upon said property. Out of the $3,750 Uptmor paid the West bank $1,829.77, state and county taxes on the land in the sum of $179.88, and $481.25 to D. T. Janes, the amount due on the mechanic's lien note. On October 27, 1937, the day the Uptmors acknowledged their deed to Deveny, the said Deveny executed his deed conveying the property back to Uptmor and Uptmor assumed the payment of the $3,750 note, but this deed was not filed for record until October 29th at 5:00 o'clock p. m.
Uptmor defaulted in the payment of the interest on said note as it became due. The substitute trustee, who will be hereafter referred to as the guardian's attorney, posted notices advertising the property for sale to be had on the 7th day of May, 1940. On May 2nd Uptmor and his wife filed in the district court their petition alleging that the lien was invalid, in that the property involved was their homestead and that the transaction between them and Deveny was a simulated one for the purpose of borrowing money and not a bona fide sale as the deed would imply; and charged all the interested parties with notice of all the facts surrounding the transaction, and secured a temporary injunction restraining the sale.
The guardian answered, alleging that he advanced the money of his ward upon the representation and in the belief that the deed was a bona fide conveyance of the title to said property, and prayed that his debt be established and that he be permitted to proceed with his contemplated sale.
Some time after the restraining order was issued Uptmor began an effort to refinance this indebtedness and took the matter up with a party who agreed to advance the money, but by reason of the Uptmors having challenged the validity of the lien securing the note, he demanded that a judgment be rendered against Uptmor on the note, with foreclosure of the lien. The testimony shows that Uptmor made repeated requests of his lawyer to have the judgment entered so that he could proceed with his trade to re-finance the loan. He also went to see the attorney for the guardian and made inquiry as to when they were going to have the judgment entered, and expressed a desire that it be done without further delay. On January 4, 1941, the guardian filed an amended cross-action in which he sought judgment for the amount of his debt and a foreclosure of the lien; and by mutual consent of the attorneys the court, on the same date, entered judgment for the amount of said debt, with foreclosure of said lien, which was in accordance with the request of Uptmor. No process was served upon the Uptmors and they were not personally in court at the time the judgment was entered. In due time an order of sale was issued and the property was sold, on March 4, 1941, to D. T. Janes for the sum of $5,016.96.
Appellants thereafter filed this suit in trespass to try title to recover said property, alleging the transaction between them and Deveny was not a bona fide sale but a simulated one for the purpose of borrowing money on their homestead and that all parties concerned had full knowledge of such facts; that the judgment entered on January 4, 1941, was invalid for the reason they were not served with process on the cross-action and made no appearance and no one had any authority to appear for them.
The case was tried before a jury, which made the following material findings: (1) that Uptmor's attorney was authorized to represent him on said occasion; (2) that the guardian's attorney did not advise Uptmor to make a pretended sale of the land to Deveny in order to fix a lien upon his homestead; (3) that at or prior to the time that the guardian advanced the $3,750 his attorney did not have either information or knowledge that the arrangement between the Uptmors and Deveny was a pretended sale; (4) that the guardian did not know before he advanced the $3,750 that the sale by Uptmor to Deveny was a pretended one; (5) that Will Uptmor authorized and requested that the judgment against him for foreclosure of the lien on his homestead be entered; and (6) that D. T. Janes knew at the time of his purchase of the land in question at foreclosure sale that the sale between the Uptmors and Deveny was a pretended one for the purpose of creating a lien upon their homestead. Based upon the foregoing findings, the court rendered judgment against appellants.
The Constitution of this state, Article 16, Section 50, Vernon's Ann.St., provides: "No mortgage, trust deed, or other lien on the homestead shall ever be valid, except for the purchase money therefor, or improvements made thereon, as hereinbefore provided, whether such mortgage, or trust deed, or other lien, shall have been created by the husband alone, or together with his wife; and all pretended sales of the homestead involving any condition of defeasance shall be void." This provision has been liberally construed and zealously guarded in behalf of the homesteaders by the courts of this state. The appellants are entitled to relief under its provisions if they have not, by their conduct, estopped themselves from claiming thereunder. Their contention is that for the purpose of borrowing money and with the intent of placing an invalid lien on their homestead, by arrangements previously made with Deveny, they executed to him a warranty deed purporting to convey absolute title to their property to him. Deveny executed a note for $3,750 to the guardian as part of the purchase price, a vendor's lien being retained. This alone would not have estopped appellants and they would still be entitled to claim their homestead rights unless it is shown that the guardian did not have notice of the alleged simulated transaction.
The guardian testified that he had no information or knowledge that it was not a bona fide sale; that he made an investigation of the matter by inquiring from several people and that he did not learn that the deed was not what it purported to be; that Uptmor and Deveny represented to him that it was a sale; that he advanced the money in the belief that the Uptmors had made a straight out sale of their property. Uptmor testified that he did not think the guardian knew that it was a pretended sale. The jury found that at the time the guardian advanced the money he did not know that the sale was a pretended one. The jury also found that the guardian's attorney who handled the matter for said guardian had neither information nor knowledge that the arrangement between the...
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In re Henderson
...Franklin v. Coffee, 18 Tex. 413, 416 (1857). Therefore, this provision has been guarded zealously by the courts of Texas. Uptmor v. Janes, 210 S.W.2d 235, 237 (Tex. Civ.App. — Waco 1948, no writ).11 Pursuant thereto, the Texas courts have consistently acknowledged that the universal rule of......
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In re Henderson
...provision against liens on the homestead is liberally construed in favor of the homesteader. Uptmor v. Janes, 210 S.W.2d 235, 237 (Tex.Civ.App.—Waco 1948, writ ref'd n.r.e.). This provision protects the family of a judgment debtor from the forced sale of the homestead and renders invalid an......
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