Parker v. Schrimsher , 1914 Tex. App. LEXIS 1485 ( 1914 )

HUFF, C. J.

This suit was instituted by C. Schrimsher and Mattie Schrimsher against the Western National Bank of Hereford, G. A. E. Parker, and L. McBride for two lots in the town of Hereford.

The first count is an ordinary action of trespass to try title, and the second count sets up substantially that the Western National Bank is claiming some interest in and to the premises by virtue of two deeds of trust and sales thereunder. The first deed of trust is dated January 4, 1908, executed by C. Schrimsher, and the other deed is dated June 1, 1910, to A. J. Lipscomb, trustee, alleging that the deeds of trust were void at the time of their execution, for the reason that the lots were then the homestead of C. Schrimsher and his wife, asking to cancel the deeds of trust as a cloud.

The appellants answered by general denial and a plea of not guilty and by a plea in estoppel, setting up that C. Schrimsher, at the time of the making of the deeds of trust, was not actually residing upon the lots in question, and that the bank relied upon the statement contained in the deeds of trust to the effect that the property conveyed therein was not the homestead of the plaintiff and had never been; that the deed of trjust was given to secure two notes, dated January 1, 1908, one for the sum of $2,542.25, and the other for the sum of $376.75; that these two notes were, in fact, executed on the sanie day the deed of trust was executed, but, as a matter of convenience, they were dated back to January 1st, instead of on the 4th — and alleging that the larger of the two notes was made up of two notes then owing by Schrimsher to the bank, and were added together, and made into one note, and that the smaller note for $376.75 was for money advanced to him at that time upon the security given on the lots by the deed of trust, and that the second deed of trust was given to secure the note for $250, which note was in part for an antecedent debt and part for money then advanced and paid to and for the benefit of Schrimsher. The plaintiff answered by a supplemental petition that, if the deeds of trust set out and described in the answer contained the clause that Schrimsher had never occupied the property in controversy as a homestead, that said property was not at the time of the execution of the deeds of trust plaintiff’s homestead, then that appellants knew that such statements were not true, and did not rely thereon, and that Schrimsher did not know that said statements were in the deeds’ of trust when he so executed them. He alleged that he did not read the deeds of trust or either of them prior to or at the time he signed and delivered them, and was not advised that either of them contained the homestead clause as above set out, and did not learn of the same until long thereafter; that he told G. A. F. Parker, who was the president of appellant bank, that he was willing to execute deeds of trust conveying the property for the purpose of securing the payment .of the notes described in the deed of trust; that Parker thereupon prepared the deeds of trust, and, without the knowledge or consent of Schrimsher, placed therein the declarations and statements that said property had never been, and did not constitute, the plaintiff’s homestead; and that Parker then asked him to sign and acknowledge the same, and, believing that the instruments were only deeds of trust and contained only such provisions as are necessary to constitute a deed of trust, and that it had been drawn in accordance with Schrimsher’s agreement and statements, he, without reading or having said deeds of trust read to him, signed, acknowledged, and delivered them to Parker for the bank, but would not have done so had he known they contained said renunciation. He further alleges that he had known Parker a great many years, and that they had been close friends, and that he had been doing all of his banking business with Parker and advising with Parker for some years, and that at the time of the execution of the deeds of trust he had implicit confidence in Parker, and relied on him to take no advantage of him in the preparation of said deeds of trust.

■ The appellants have briefed 68 assignments of error in their presentation of this case. It would serve no useful purpose to notice each assignment as presented, and to- do so would lengthen the opinion unnecessarily. One of the important questions in the case is that of estoppel. As we understand, appellants contend that the appellees are es-topped from setting jip homestead rights in and to the property in controversy by reason of the two deeds of trust executed by the husband, Con Schrimsher, to secure the Western National Bank; one dated January 4, 1908, to secure two notes, one for $2,542.25, and the other $376.75, both notes bearing date January 1, 1908; the other deed of trust executed June 10, 1910, to secure a note for $250. Each deed of trust contains the clause that the property was not then, and had never been, his (Con Schrimsher’s) homestead. Without going into the testimony at any great length, the facts show that appellee C. Schrimsher bought what is designated in the record as the Jackson place in 1906, and occupied it with his family until the 1st day of January thereafter. He th§n moved his family upon the property in controversy, where he resided with them, running a restaurant and rooming house thereon, and used it as a home for himself and family until in August, 1907, when his wife was taken sick with typhoid fever, and they then removed upon the Jackson place and continued to live there until he traded that place for what is known in the record as the Garland place in the fall of 1908. While living on the Jackson place with his family he executed the first deed of trust, dated January 4, 1908. The property sued for was at that time rented by ap-pellees and occupied by their tenant. There is some conflict of evidence as to whether appellees were residing on the property in controversy or on the Garland property at the time of the execution of the second deed of trust June 10, 1910. The jury resolved this question in favor of the appellees. Mrs. Schrimsher was the wife of Con Schrimsher at all the times mentioned and lived with him as his wife. They had a large family of children, who lived with them on the several places. Both of the appellees testified that the property in controversy was acquired for a homestead for themselves and family, and that it was their intention to make their home thereon, and that they used and occupied it as such; that in leaving the place it was not their intention to abandon it as a homestead, but they had the intention to return to it and occupy it as a home; that they only left it temporarily, with no intention to permanently abandon it as a home. They rented it by the month, and left it in the first place because of Mrs. Schrimsher’s health. The facts also disclose that several members of the family were taken down with fever after the mother and wife, and after this they were quarantined on account of smallpox. We find no evidence in the record showing that Mrs. Schrimsher signed the deeds of trust or was consulted about them, or that she knew anything about them, or that her husband had executed the deeds on the lots.

[1] The wife’s right in the homestead is not merely a possessor;; right of only a right to occupy the premises, but it is a property right, a vested right in the land itself. Huss v. Wells, 17 Tex. Civ. App. 195, 44 S. W. 33; Stallings v. Hullum, 89 Tex. 434, 35 S. W. 2. She cannot be deprived of it except as pointed out by the Constitution and the statutes. So long as it is the homestead and occupied as such, it cannot be incumbered by the husband, with or without her consent, except in certain instances specified by the Constitution. Loan Co. v. Blalock, 76 Tex. 85, 13 S. W. 12.

[2] The covenant in a mortgage made by the husband that the premises are not the homestead does not bind the wife, unless connected with representations made by her which deceived the mortgagee. Thomas v. Williams, 50 Tex. 269; Armstrong v. Moore, 59 Tex. 648; Eckhardt v. Sehelecht, 29 Tex. 129. There appears to be a uniformity of authority 'that the fraudulent acts of the husband in which the wife does not participate will not deprive her of her homestead rights. Texas Land, etc., Co. v. Cooper, 67 S. W. 173, and authorities there cited.

[3] If, during a temporary removal from the homestead, the husband secretly renounces the old homestead in a deed of trust thereon, such renunciation does not bind the wife. St. Louis Brewing Ass’n v. Walker, 23 Tex. Civ. App. 6, 54 S. W. 360. In the case just cited it appears the agent of the mortgagee knew of the secret intention of the husband, but the decision of the court does not appear to have been based upon that fact. “There can, in law, be no abandonment of the homestead in which the wife does not join, anymore than there can be an alienation of the same by the husband without the consent of the wife.” Hudgings v. Thompson, 163 S. W. 659. The above quotation must be read in connection with the facts of that case. The husband, while living on the land, contracted to convey the homestead, and at that time he and his wife removed from the land, but it appears the wife was ignorant of the contract. After removing from the land the husband and wife joined in a conveyance of the land to another party, and shortly thereafter acquired another home.

[4] If the husband abandons the homestead in good faith, such act would deprive it of the constitutional protection as a homestead; hut, if done in fraud of the rights of the wife, to evade the provisions of the Constitution, which prohibits the giving of liens upon the homestead, then the property would continue homesteaded, and a lien attempted to be given upon it void. Medlenka v. Downing, 59 Tex. 32-40. “The mere declarations of the husband or of third parties, though ever so fraudulent, if false, do not bar or prevent the ¿assertion of the homestead exemption by the husband and wife.” Thomas v. Williams, 50 Tex. 269. In the case just cited the trust deed was executed alone by the husband, who represented at the time he obtained the money that the land was not the homestead, and that he resided with his family and had a homestead in Sulphur Springs. The evidence further shows that the husband and wife testified that, in fact, they had not abandoned the land as a homestead, but had gone to Sulphur Springs to send the children to school, where they were residing when the deed of trust was executed by the husband. The above case, upon the proposition stated, is cited with approval in the cases of Ross v. McGowen, 58 Tex. 603; Seay v. Fennell, 15 Tex. Civ. App. 261, 39 S. W. 181; Black v. Garner, 63 S. W. 918.

[5] It is a general rule that married women are not estopped unless their conduct has been intentional and, in contemplation of law, fraudulent. Bigelow on Estoppel (6th Ed.) § 621; Bell v. Schwarz, 56 Tex. 353; Mc-Laren v. Jones, 89 Tex. 131, 33 S. W. 819.

[6] It is insisted, as we understand appellant, that as the husband made the deeds of trust on the lots, and x’ecited therein that they were not at that time the homestead of the appellees, that the appellees would be estopped from setting up the homestead if, in fact, it had not been abandoned. It is true the husband has the right to select the home, and, if he in good faith has exercised that right, he would have the power to convey or incumber the old homestead. If he has acquired another homestead, then the power to convey and incumber the old homestead would be vested in him. We think also that, in order to acquire a new homestead, it is not necessary to purchase other-land, but it may be acquired in land owned by the husband at the time of abandoning the old. The word “acquire,” as used, means something vested or inherent in the subject. A mere temporary possession is not expressed by acquire.

[7] If, therefore, Schrimsher and wife left the property in question with no intent to abandon it, or did so temporarily, with the intent to return and continue it as their home, it -would remain their home, even if for convenience they had moved temporarily on another tract of land; and if the facts warrant such a finding, a mortgage given by the” husband during such temporary absence or residence on other property would be void.

[S] If the wife did not, by any declaration or act on her part, induce the appellant to accept a mortgage thereon, and to believe at the time it was not the homestead, then she would not be estopped. She must have intentionally so conducted herself that, in law, her conduct would be a fraud upon the appellant, and such facts must be so alleged and proven, in order to effect an es-toppel, and, if the facts do not show such conduct on her part, then the only issue in the case is, Was the property the homestead? and, if so, was it abandoned, or had Schrim-sher acquired another homestead at the time of the execution of the deeds of trust? •

[9] The occupation of the new homestead must have been with the intention of permanently residing thereon and making it the home of the family. It must have been such an intent and act concurrent so that the homestead character attached to, and inhered in, the land so occupied. Until the new home was so acquired or the old one abandoned by the husband in good faith then the wife had a vested right in the old home, and the representation of the husband to his creditor to the contrary would be a fraud, not only upon the creditor, but also as to his wife(> if he thereby sought to incumber it. We do not think, under such conditions, the husband and wife will be estopped from proving the actual fact as to the homestead.

The case of Parrish v. Hawes, 95 Tex. 185, 66 S. W. 209, is similar to this case, in that the facts in each show the husband and wife to have been using two different places of residence, but are dissimilar, in that in the Hawes Case both husband and wife signed the disclaimer of homestead in the property in controversy, and designated the other property as their homestead. In this case the husband alone signed a disclaimer of the homestead in the property in question, and did not designate any other, unless his resi-deuce upon the Jackson place at the time was such designation. It is said in the Hawes Case, “We see no reason why the husband and wife, if not the husband alone,” have not the right when the occasion arises, to make the selection. We believe that our holding in this case is in harmony with the Hawes Case, and is certainly supported by Thomas v. Williams, supra, and other authorities hereinbefore cited.

£10] We think the appellant’s second, third, and fourth assignments should be sustained, which are to the effect that the allegations of the appellee’s supplemental petition, which set out, in effect, that Schrimsher did not read the deed of trust, and that, owing to his long acquaintance, friendship, and business relations with Parker, who prepared the deed, he did not read over the clause contained in the deed of trust that the property was not then, and had never been, his homestead, and that he (Schrimsher) did not know it was in the deed, and that he would not have signed it had he known of such clause, and that Parker fraudulently inserted such clause, and it was not discovered by Schrimsher. A general allegation of fraud is not sufficient to present such issue, but the facts constituting the same must be alleged. We find no allegation of acts on the part of Parker from which fraud can be inferred. Parker v. Allen, 33 Tex. Civ. App. 206, 76 S. W* 74.

[11 ] The mere fact that one party drew up an instrument with a certain stipulation and the other party did not know that it was contained therein will not set aside the instrument, unless some conduct on the part of the other induced him to accept it without ascertaining its contents. We do not think one can excuse himself from reading the instrument on the ground of his own negligence. Clack v. Wood, 14 Tex. Civ. App. 400, 37 S. W. 88; Williams v. Rand, 9 Tex. Civ. App. 631, 30 S. W. 509. It has been repeatedly held, in cases where the declaration that the premises mortgaged was not the homestead, a party will not be relieved therefrom simply on the ground that he did not read it. The deed in this case was open'to the inspection of Schrimsher, and he should have known of the statement. He cannot, .we think, carelessly fail to examine the instrument and charge Parker with fraud without showing acts which Parker did that would prevent or excuse him from reading and knowing before he made it his deed. Moerlien v. Scottish, etc., 9 Tex. Civ. App. 415, 29 S. W. 948; Scotch, etc., v. Scripture, 40 S. W. 210; McGaughey v. American Bank, 41 Tex. Civ. App. 191, 92 S. W. 1003; Wright v. Bott, 163 S. W. 360; Pickett v. Gleed, 39 Tex. Civ. App. 71, 86 S. W. 946.

[12] We have concluded, if the facts show that the property was, in truth, the homestead at the time of the execution of the deeds of trust, and further show that Mrs. Schrimsher did not by her conduct estop herself, the declaration in the deed of trust' would not estop appellees from showing the property was then, in fact, the homestead. This, however, does not exclude the statement as a fact or declaration made by Schrimsher against his own interest, which should be weighed as any other fact. It should stand as if he had actually made it; but the homestead rights of the wife will permit the proof of the falsity of the statement contained in the deeds of trust. We think the testimony of Schrimsher to the effect that he did not know the statements were in the instrument, that he did not make them, and that they were placed in the deed without his knowledge or consent, under the pleadings, should not have been admitted. The evidence is not sufficient to support the findings of the Jury that the declaration that the property was not, and had not been, the homestead was not part of Schrimsher’s deed, and were placed therein by Parker, without his knowledge or consent. The admission of the evidence under the pleadings was error.

[13] We think there was error, as set forth in the first assignment. In testing the jurors as to their qualification, counsel for appellees, over the objection of appellants, asked each juror the following question:

“If you were selected as a juror to try this cause, and an issue should develop on trial as to whether or not the property in controversy was a homestead at the time Con Schrimsher executed the mortgage or mortgages to the Western National Bank, and that issue was to be determined by you under the charge of the court, would you let the fact that Schrimsher executed the mortgage or mortgages to the bank influence you in determining whether or not the property in controversy was a homestead of himself and family at the time he executed the mortgage?”

The objection urged is that the question required each juror in advance to declare what effect they would give to the testimony which would be subsequently offered. That it was prejudging the effect to be given on a part of the evidence. Each juror answered the above question in the negative. The appellants exhausted their peremptory challenges allowed them by law, and the jury was composed of jurors so examined and who had so answered. At the time the deed of trust of January 4, 1908, was executed the appel-lees were not actually occupying the premises in question as a residence, but residing on another and different place. The question at issue was, then, the intention of Sehrim-sher in fixing his homestead. The appellant had no other way to show such intention, except by the acts and declarations of Schrim-sher and the circumstances surrounding him. These facts, together with the deed, we think, the jury should have been free to consider without a previous pledge that they would not “let the fact that Schrimsher executed the mortgage or mortgages to the bank” influence them in determining whether the property was the homestead. Ellis v. State (Cr. App.) 154 S. W. 1010. • In the examina-1 tion of a juror as to Ms qualification, there is large discretion vested in the trial court. The statement, however, that the jury would not let the mortgage influence them in finding a verdict on the homestead question is extending the rule, we think, too far. In the mortgage Sehrimsher stated the property was not his homestead; yet each individual juror was forced to say this statement would not influence him in determining the question. Whether it was a- homestead in this case rested alone in the mind of Sehrimsher. The appellant had no way to show his intent with reference thereto, except by what he said and did. This error is a serious one. The charge of the court would not likely remove it. The jury had sworn, under the direction of the court, that the deed would not influence them. They doubtless would strive in considering the case that it should not, when they came to consider it upon the one vital issue in the case; that is, whether the property was a homestead. The courts have been quite liberal in the examination of jurors, but we can find no case which has gone to the extent presented in this one. Courts in some jurisdictions have condemned the practice of presenting hypothetical questions to a juror upon his voir dire.

[14] We think the sixth assignment should be sustained. The testimony of Sehrimsher, to the effect that he told Ewing, his tenant, that he intended to move back to the place, we think, is self-serving and hearsay. He could testify as to what his intention was, but we do not think he should be permitted to testify to what he told others his intention was. This testimony is not shown to have been res gestne, and it was brought out by appellant upon direct examination. Railway Co. v. Thompson, 75 Tex. 501, 12 S. W. 742; Moody v. Gardner, 42 Tex. 414; Insurance Co. v. Eastman, 95 Tex. 34, 64 S. W. 863; Ry. Co. v. Culver, 16S S. W. 514.

[15] The twenty-sixth and thirty-second assignments of error are sustained. Parker and Black, while witnesses on the stand, were examined by appellee with reference to their testimony at a former trial of the court, in which they had testified to seeing a tenant on the property in controversy on June 10, 1910. It appears from their cross-examination that they each admitted to having made such statement, but before the former trial was closed they returned and corrected their testimony. On this trial, over the objections of appellant, the court permitted the court stenographer to read in evidence this testimony of the witnesses on the former trial with reference to having seen the tenant on the property at the date mentioned. TMs appears to have been done to contradict or impeach the witnesses. The rule, as we understand it, is that, when a witness admits he made a statement contrary to his testimony then given, such former statement cannot be introduced to impeach him. In this case they each testified substantially to the facts testified to by them on the former trial as it stood after the correction by them. Their statements on the former trial after correction then stood substantially as their statements on the present trial. We think under such facts it was prejudicial to introduce their testimony given on the former trial before it was corrected; especially so after they admitted they had so given it, but had corrected it. Such proceeding was calculated to injure the appellant, and induce the jury to disregard the testimony of the witnesses.

The other questions raised by assignments, many of them, are to questions propounded to witnesses because they were leading, to repeating testimony, ' and to the order in which the testimony was introduced. These questions are not likely to arise on another trial. Many assignments are based on the manner and form in which certain issues were submitted to the jury. These we do not think necessary to discuss, as they are not likely to be presented in the same way on another trial. We have tried to indicate what the issues are in this case, and, we take it, they will be properly submitted upon another trial.

The case will be reversed and remanded.