Walter Connally & Co. v. Gaston , 1927 Tex. App. LEXIS 437 ( 1927 )

^* Writ of error dismissed for want of Jurisdiction November 9, 1927. Because we think the judgment rendered by the court below was the only one which properly could have been rendered on the facts of the case, we will not undertake to determine whether the contentions presented in appellants' brief should be sustained or not, for, if they were sustained, we would nevertheless feel bound to affirm the judgment.

It appeared without dispute in the evidence that the 50 acres of land in question was a part of the homestead of A. A. Gaston and his wife, appellee Annie Gaston, at the time they conveyed same to Henry Gaston. It also so appeared that the sale and conveyance of the land by the former to the latter was a simulated one for the purpose of creating a lien thereon (by means of the notes executed by Henry Gaston) to secure A. A. Gaston's indebtedness to appellants. In other words, it conclusively appeared that as between the parties to it said conveyance was void, and therefore of no effect. Section 50 of article 16 of the Constitution. Not himself having any title to the land, of course Henry Gaston conveyed none to appellants by his deed to them.

The title still being in appellee Annie Gaston and the legal representatives of A. A. Gaston, deceased, notwithstanding the deed to Henry Gaston and his deed to appellants, it is clear appellants could defend against the relief sought by appellees only on the theory that the latter were estopped from asserting the title to be in themselves as against appellants' claim of title thereto. Henderson v. Wilkinson (Tex.Civ.App.) 159 S.W. 1045.

That appellants were not in a position to urge such an estoppel appeared from undisputed evidence showing: (1) That the transfer of the Henry Gaston notes to them was to secure the payment of then existing indebtedness (the four notes for $625 each referred to in the statement above) of said A. A. Gaston to them, and upon no other consideration whatever; and (2) that the sole consideration for the conveyance of the land to them by Henry Gaston was the cancellation of the five notes he made to A. A. Gaston. Having parted with nothing on the faith of the validity of the transaction between A. A. Gaston and appellee Annie Gaston and Henry Gaston, and being in no worse position because of their reliance on the validity of that transaction, appellants were not in a position to claim an estoppel against appellees to assert the invalidity of the deed to Henry Gaston. Durham v. Luce (Tex.Civ.App.) 140 S.W. 850. It is settled by the decision of the Supreme Court in Swann v. Bank, 115 Tex. 425, 282 S.W. 789, overruling Webb v. Burney, 70 Tex. 322, 7 S.W. 841, to the contrary, that the cancellation by a grantee in a deed of a pre-existing debt of the grantor to him is not such a consideration as entitles the grantee to claim protection as a bona fide purchaser.

The judgment is affirmed.