Wilson v. Alexander, No. 12667.

• Court: Court of Appeals of Texas
• Writing for the Court: Conner
• Citation: 50 S.W.2d 440
• Parties: WILSON et ux. v. ALEXANDER et al.<SMALL><SUP>*</SUP></SMALL&gt
• Docket Number: No. 12667.
• Decision Date: 25 April 1932

50 S.W.2d 440 WILSON et ux.
v.
ALEXANDER et al.^* No. 12667. Court of Civil Appeals of Texas. Fort Worth. April 25, 1932. Rehearing Denied May 28, 1932.

Appeal from District Court, Montague County; Vincent Stine, Judge.

Suit by O. V. Alexander and others against W. H. Wilson and wife. From a judgment in favor of plaintiffs, defendants appeal.

Reversed and remanded.

M. A. Bryan and Homer B. Latham, both of Bowie, for appellants.

Benson & Benson, of Bowie, and True Strong, of Nocona, for appellees.

CONNER, C. J.

This suit was instituted by O. V. Alexander and other children and sole heirs of R. R. Alexander, deceased, showing themselves entitled to so sue, against W. H. Wilson and Ruby Wilson, his wife, to recover upon a promissory note for $4,405.65, dated March 23, 1926, and to foreclose a trust deed lien upon 320 acres of land situated in Montague county, Tex., given to secure said note. The defendants, Wilson and wife, demurred to the plaintiffs' petition, and, among other things not necessary to state, pleaded that, at the time of the execution of said note and trust deed, the south 200 acres of said land described in the plaintiffs' petition, and upon which it was sought to foreclose the lien, was situated in Montague county, Tex., and constituted their homestead, and had long been used and occupied as such.

To this plea the plaintiffs pleaded a recitation in the deed of trust alleging that the defendants were estopped thereby from claiming the homestead exemption.

The defendants' demurrer was overruled, and, upon conclusion of the evidence, the court peremptorily instructed the jury to find for the plaintiffs against W. H. Wilson for the amount due upon the note, and for a foreclosure of the trust deed lien against both W. H. Wilson and his wife, Ruby Wilson. The verdict was so returned, and judgment rendered in accordance therewith, from which judgment Wilson and wife have duly prosecuted this appeal, and have assigned error to the action of the court in overruling their demurrer and to the giving of the peremptory instruction and judgment.

Without quoting therefrom, we think it sufficient to say that the evidence undoubtedly tended to show that the 320 acres had been long used and occupied by the defendants, Wilson and wife, as their homestead, but that at the date of the execution of the note and trust deed, and for several years prior thereto, they were temporarily residing upon property in the town of Nocona, with no intent to abandon their old homestead, Wilson in the meantime cultivating and using parts of the old homestead. Indeed it is not contended by appellees that the evidence on the issue of homestead vel non is insufficient to raise the issue or to justify the peremptory instruction on that ground. The contention in behalf of appellees is that the recitation in the trust deed as a matter of law estopped Wilson and wife from asserting their homestead claim. The plaintiffs thus pleaded the estoppel: "That the defendants in this cause did in the deed of trust fully described and made a part of plaintiffs' original petition, represent to R. R. Alexander, to whom the note and deed of trust lien sued upon were given, that said 320 acres of land as described in plaintiffs' petition formed no part of their homestead by and through the following representation which were relied upon by the said R. R. Alexander contained in such deed of trust, to wit: `It is agreed and understood

Page 441

that the above described property (which is the property described in plaintiffs' original petition) is not our homestead and not considered as any part of our homestead'"—further alleging that the defendants at the time were living on property located in the city of Nocona.

Plaintiffs offered no evidence that R. R. Alexander, at the time of the execution of the note and trust deed, was without knowledge of the long-continued occupation of the 320 acres as the homestead of Wilson and wife, and of the character of the occupation of their property in Nocona, and hence that he relied upon and was deceived by the recitation in the trust deed. Nor was there any evidence offered that the value of the land upon which the trust deed was given, exclusive of the 200 acres claimed as a homestead, was of a value less than would constitute a sufficient security for the note, and hence that R. R. Alexander probably suffered damage on account of the recitation. In other words, the plaintiffs neither alleged nor offered to prove the elements of an equitable estoppel.

In the brief of appellees, their contention is thus stated: "It was not error for the court to fail to submit the issue of estoppel to the jury for the reason that the provision of the deed of trust providing that such property constituted no part of the makers' homestead, together with the additional facts that said parties did not live on said property, constituted as a matter of law sufficient and undisputed facts to show estoppel; that said appellants were estopped as a matter of law to deny the truth of such recitals in said deed of trust"—citing the following authorities in support of their contention: Carstens v. Landrum (Tex. Com. App.) 17 S.W.(2d) 803; Rutherford v. McGee (Tex. Civ. App.) 241 S. W. 629; Heirs of Corzine v. Williams, 85 Tex. 499, 22 S. W. 399; Surtees v. Hobson (Tex. Civ. App.) 4 S.W.(2d) 245; United Fidelity Life Ins. Co. v. Fowler (Tex. Civ. App.) 38 S.W. (2d) 128; Blanks v. Bank (Tex. Civ. App.) 44 S.W.(2d) 393; Purdy v. Grove (Tex. Civ. App.) 35 S.W.(2d) 1078; Parrish v. Hawes, 95 Tex. 185, 66 S. W. 209; Gibraltar Sav. & Bldg. Association v. Harper (Tex. Civ. App.) 41 S. W.(2d) 130; Dodson v. Dickey (Tex. Civ. App.) 264 S. W. 586; Marshburn v. Stewart (Tex. Civ. App.) 295 S. W. 679; Allen v. Berkmier (Tex. Civ. App.) 216 S. W. 647; Johnson v. Company (Tex. Civ. App.) 217 S. W. 407; Llewellyn v. Bank (Tex. Civ. App.) 265 S. W. 222; 21 C. J. pages 1089 and 1111; Alldredge v. Wilson (Tex. Civ. App.) 268 S. W. 1045; Sperry v. Moody (Tex. Civ. App.) 269 S. W. 272.

We are of the opinion that appellees' contention as above quoted and as insisted upon in their brief and in argument before the court on submission is not sustained by the authorities quoted, which we think are clearly distinguishable from the case we have before us.

An estoppel has been defined to be "an admission or determination under circumstances of such solemnity that the law will not allow the fact so admitted...