De Hymel v. Scottish-American Mortgage Co. , 80 Tex. 493 ( 1891 )

STAYTON, Chief Justice.

Appellees brought this action against appellants, who are husband and wife, and against M. F. and J. P. Rice to recover the sum due on two promissory notes which the latter had executed to appellants to secure a part of the purchase money for a tract of land which they had conveyed by deed with general warranty; which, however, reserved a lien on the land to secure balance of purchase money. Appellants indorsed the notes of M. F. and J. P. Rice to appellees.

The land for which the notes were given may have been the separate property of Mrs. De Hymel, and at some time before she and her husband conveyed to M. F. Rice it seems to have been occupied by them as homestead, but the deed by which they conveyed was executed as are deeds required to be by husband and wife in order to convey homestead or the separate property of a married woman.

Appellants pleaded that their land was their homestead, and that for this reason no lien could be enforced against it. Their theory is that, notwithstanding their deed, the title to the property remained in Mrs. De Hymel because of the reservation of a lien to secure the unpaid purchase money.

Ho further act remained to be done by appellants or either of them to pass title to the land, and. they do not occupy the position they would had they only executed an agreement to convey property used as homestead at the time such agreement was made.

Whatever homestead right appellants may have had in the land prior to executing the deed, the effect of that instrument was to destroy that right.

' In so far as the deed for some purposes might be held to evidence an executory "contract, all benefits which could ever have resulted to appellants from so treating it were lost to them and their right to rescind cut off by the transfer to appellee of the notes given to secure the unpaid purchase money.

There was no error in the ruling which sustained a demurrer to so much of appellants’ answer as set up homestead right in bar of fore- . closure of lien reserved to secure unpaid purchase money.

Appellants had received on the land about $3500; and if they had brought that sum into court and asked rescission this could not have benefited them in any respect, for they had no right to rescission, and it is unimportant what ruling the court may have made upon the question of tender.

" The judgment as originally entered seems to have been for a less sum than shown to have been due on the notes, and at the succeeding term this mistake was corrected after due notice to interested parties.

The application to correct the judgment was made before this appeal was perfected, but the correction was not made until after this was done. It is now urged that the judgment should be reversed on the ground that the court "had no jurisdiction to make the correction after appeal was perfected, but we are of opinion that the court had power to correct a mere mistake in the sum for which judgment was entered even after the appeal was perfected.

There is no error in the judgment, and it will be affirmed.

Affirmed.

Delivered April 14, 1891.