Gay v. Halton , 75 Tex. 203 ( 1889 )

GAINES, Associate Justice.

The facts of this case are fully shoivn by the findings of the judge before whom the case was tried without a jury. They are as follows: In 1853 one H. M. Gay became the oAvner of a tract of land of which that in controversy forms a part. He Avas never married. In 1858, in order to hinder and delay his creditors, he conveyed the entire tract to one Campbell, who lived in the State of Georgia. Campbell never intended to claim the 'land against Gay, but the land Avas never reconveyed to the latter. Gay remained in possession until the year 1881 or 1882, rvhen he died insolvent. In 1878 Gay, acting under a power of attorney executed to him by Campbell, made a deed to the premises in controversy to Still & Lacy in payment of a debt for $300 due by Gay to them, and for $100 to be paid in future. At the same time Still & Lacy executed and delivered to Gay their promise in writing to reconvey the land to Campbell on the payment to them of the $400 and interest within three years from date.

For a long time previous to his death and up to that time H. M. Gay cohabited with America Gay, one of the appellants. The other appellants are the children of H. M. and America Gay, the fruit of their illegitimate cohabitation. After the death of H. M. Gay, America Gay and Jasper Gay occupied the premises in controversy, paying rent to Still & Lacy until the 1st day of January, 1884, when they bought the land of their landlords, and in consideration therefor executed the notes described in the petition in this. case. The notes were transferred to appellee Holton for value before maturity, and he brought this suit against the makers to enforce their payment, claiming a lien upon the land. The other appellants intervened in the suit, claiming that the premises in controversy were the homestead of H. M. Gay; that the transaction between him as attorney of Campbell on the one part and Still & Lacy on the other was but a mortgage, and therefore void under the Constitution, and that as surviving members of the family for "whose protection the land was exempt from forced sale, they were entitled to have it decreed to them. The defendants set up a similar claim.

In Lane v. Phillips, 69 Texas, 240, this court held that a father and his illegitimate children who lived together constituted a family whose homestead would be protected from forced sale. It may be therefore that if H. M. Gay had been the owner of the property at the date of the •deed from him as attorney of Campbell to Still & Lacy, and had been the grantor in that deed, the transaction, being but a mortgage, would have been void, and the question might then have been presented whether after the death of the father the illegitimate offspring had any rights in the homestead. But the court below concluded that Campbell was the owner of the property, and hence that the defendants and interveners were without any right in the premises whatever except such as defendants derived from their conveyance from Still & Lacy. We think the court correct in this conclusion. The conveyance from H. M. Gay to Campbell being in fraud of creditors, was good as between the parties, and although Campbell may have intended .that Gay should enjoy the use of the land, this did not alter their legal or equitable rights. The title remained wholly in Campbell. Hnder the evidence adduced judgment was properly rendered for appellees.

The defendants and intervenors offered in evidence during the progress ■of the trial a deed executed in 1873 by one Jimmerson and wife to H. M. Gay to sixty acres of the land in controversy, which upon objection was excluded by the court. It does not appear whence Jimmerson and wife derived their title, if any they had, and therefore the evidence was irrelevant. We do not consider it necessary to pass upon the question whether or not under the agreement to read the records the appellants had a right to read a record which was not made until the trial had begun.

We find no error in the judgment and it is affirmed.

Affirmed.

Delivered November 26, 1889.