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and I bind myself, my heirs and legal representatives, to occupy, use, and enjoy the above-described premises as contemplated by law to constitute a homestead. In faith whereof, I hereunto sign my name, this 20 day of May, 1883.
J. W. Burford." "The State of Texas, County of Tarrant. Before me, Newton H. Lassiter, notary public in and for Tarrant county, Texas, this day personally came J. W. Burford, known to me to be the person who executed the above instrument of writing, and acknowledged to me that he signed the same for the purposes and consideration therein expressed. Given under my hand and seal of office, this 2nd day of May, 1888. Newton H. Lassiter, "[L. S.)
Notary Public Tarrant Co., Texas. "Filed for record May 2, A. D. 1888, at 12 o'clock m. Recorded May 4, A. D. 1888, at 1:40 o'clock p. m.
Jno. F. Swayne, County Clerk." The clause in the trust deed disclaiming homestead interest is “that the herein-described property is not our homestead, nor claimed, used, or enjoyed by us as such, and that we have other property which we occupy and claim as such." Burford testified that a prior incumbrance of $2,800, which existed on the 120 acres H. H. Edwards, 111 acres A. Voght, and 134 acres S. C. Inman surveys, from a time prior to Burford's occupancy of the house on the Edwards survey, was paid off out of the $6,300 loan, as demanded by the Texas Loan Agency. Cass Edwards testified that Mrs. Matilda F. Burford is his sister, and that Burford claimed the 405 acres of land as his place, and claimed the 304 acres of Mrs. Burford as his homestead; that Burford and wife lived on the H. H. Edwards survey in 1889, and have lived in Ft. Worth since 1889.
W. M. Alexander and W. N. Clark, for appellant.
Before PARDEE, Circuit Judge, and BOARMAN and SPEER, District Judges.
PARDEE, Circuit Judge (after stating the facts). The constitution of the state of Texas (article 16, $ 51) provides:
"The 'homestead of a family, not in a town or city, shall consist of not more than two hundred acres of land, which may be in one or more parcels, with the improvements thereon; the homestead in a city, town or village, consisting of a lot or lots, not to exceed in value five thousand dollars at the time of their designation as the homestead, without reference to the value of any improvements thereon; provided, that the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of a family; provided, also, that any temporary renting of the homestead shall not change the character of the same when no other home. stead has been acquired."
Articles 2343 et sequitur of the Revised Statutes of Texas are as follows:
"When the homestead of a family, not being in a town or city, is a part of a larger tract or tracts of land than is exempted from forced sale as such homestead, it shall be lawful for the head of the family to designate and set apart the homestead, not exceeding two hundred acres, to which the family is entitled under the constitution and laws of this state."
"The party desiring so to designate and set apart the homestead shall file for record with the clerk of the county court of the county in which the land or a part thereof may be. an instrument of writing containing a description by metes or bounds, or other sufficient description to identify it, of the homestead so claimed by him, stating the name of the original grantee and the number of acres, and if more than one survey the number of acres in each."
"Where the owner of such a homestead. part of a larger tract, as is described in article 2343, has failed to designate and set apart his homestead,
as provided in the three preceding articles, the excess of such tract or tracts of land over and above the homestead exemption may be partitioned and separated from such homestead and subjected to levy and sale under execution, if otherwise subject, as hereinafter directed.”
"The defendant may at any time after his homestead has been designated and set apart in either of the modes pointed out in this chapter, change the boundaries of his said homestead by an instrument executed and recorded in the manner provided for in articles 2344 and 2345, but such change shall not impair the rights of parties acquired prior to such change."
We have been referred to no case in the higher courts of the state of Texas in which the plain, unambiguous language of the foregoing statutes has been explained, limited, or modified. In Barnes v. White, 53 Tex. 630, however, the said statutes were indorsed as calculated to prevent fraud, injustice, and litigation. The undisputed evidence in this case is that Burford and wife were the owners of parts of different surveys, forming one contiguous tract of farming and pasture land, and had thereon, at least, two dwellings (messuages and curtilages), one of which, on the Inman survey, had been occupied as a homestead from 1879 until 1884, with temporary absences of the family in Ft. Worth, and had never been formally abandoned as a homestead, although in later years Burford and his family, when not living in Ft. Worth, and after 1884, occupied the other dwelling, which was on the Edwards survey. Under these circumstances, and under the plain provisions of the law, Burford had a right to designate and set apart, out of the tracts of land owned by himself and his wife, the homestead, not exceeding 200 acres, to which the family was entitled, under the constitution of the state; and when he did so designate and set apart the homestead openly and above board, with the consent of his wife, and without infringing on the rights of others, he had the full right to deal with the balance of the land as free and clear of all homestead rights, and other parties had the right to deal with him in regard to such land as free and clear of the homestead right. This being the case, when we find by the undisputed evidence that, in accordance with the forms prescribed by law, Burford designated the 304 acres of the Inman survey, upon which there was a dwelling house (messuage and curtilage), formerly occupied by him and his family as a homestead, as the homestead of the family, and on the faith thereof made a deed of trust of the other surveys owned by him, to secure a loan from the Texas Loan Agency, and afterwards a loan from the complainant, we are bound to hold that Burford is now estopped by lawful covenant from claiming, as against the complainant, a homestead other than that so as aforesaid designated, to say nothing of an estoppel in equity by and through the recitals in the trust deed, and under the affidavit made by him, and set forth in the record.
We do not find that any of the cases cited in the opinion of the learned judge in the court below militate against this conclusion. We will refer to some of them briefly:
In Philleo v. Smalley, 23 Tex. 503, Mr. Justice Bell says: "A man's homestead must be his place of residence; the place where he lives; the place where he usually sleeps and eats.”
So far as this quotation is concerned, we can only say that, if it is applied to this case, we should be constrained to find, as a general proposition, that Burford's homestead is in the city of Ft. Worth, for there is the place where he has lived more than on his alleged homestead, and is the place where, by his evidence, he now lives.
In Railway Co. v. Winter, 44 Tex. 597, Justice Roberts says: "The object of the constitution was to protect the house and farm, tan yard, mill, gin, and whatever had been used in connection with the residence and to make a support for the family."
Conceding the correctness of this proposition, we are still compelled to decide which one of Burford's dwelling houses was his homestead, —the one he chose and selected when he wanted to borrow the money from the complainant, or the one he now puts forward as his homestead, when he wants to defeat the complainant in the collection of his loan.
In addition to the above quotations, we note that Justice Roberts in the same opinion also says:
"The question of intention does become important in some points of view, as, for instance, in determining whether or not a person has acquired a homestead at all, as in case of domicile, or whether he has abandoned his homestead, or which one of two houses, where he sometimes resides in each, is his homestead, or which of the two fields that are in use in connection with his rural occupation or calling is to be preferred when both cannot be, and the like. But when a person is the occupant of a large tract of land, with a mansion house surrounded by or contiguous to his farm, which he uses in his calling as a means of support, most of the tract being woodiand or prairie, or consisting of a number of tracts, some of which are not used at all, such facts determine substantially and approximately the locality of his homestead, and the locality of portions of the large tract not so used to be not his homestead or part of it, irrespective of his intention at the time. If he should wish to change the locality of his homestead on such large tract by moving his residence to another portion of his tract, or by changing the boundaries substantially different from the locality which the pre-existing facts of ostensible use and enjoyment have fixed for him, he must do it before other persons have acquired a right by valid lien or purchase on such portion of the land as had not been a part of the homestead, and in such manner, by such use or actual designation, as not to permit others to be deceived or entrapped by the obvious appearance of his ostensible situation on his land. His specific intent in making the change, either to defraud others who have rights attached to the land, or to grab from them the most valuable land not previously used for homestead purposes, for his own pecuniary advancement, and that alone, is therefore not the true test in de termining the validity of the claim of homestead.”
Freeman v. Hamblin, 1 Tex. Civ. App. 163, 21 S. W. 1019, is quoted from as follows:
"Where there are more than 200 acres of land in a rural homestead, the husband may designate the homestead, but he cannot defraud the wife in so doing as to the actual homestead."
This quotation is not applicable to this case, because there is no contention here that the wife was deceived or defrauded by the husband's designation of the homestead; but the case rather shows, and the contention of the appellant is, that the wife of Burford was fully advised in the premises, and consented to the designation as made, going so far as to join in the temporary abandonment of the Edwards survey as a homestead, in order to deceive the Texas Loan Agency in the very matter of the homestead.
We have examined Loan Agency v. Blalock, 76 Tex. 85, 13 S. W. 12; Mortgage Co. v. Norton, 71 Tex. 689, 10 S. W. 301, and Haswell v. Forbes (Tex. Civ. App.) 27 S. W. 568, which, so far as applicable here, are cases dealing with designations of homesteads by actual, open, and exclusive possession, and find pothing in any of them to conflict with, but much to support, what we understand to be the correct role in this case.
The decree of the circuit court is reversed, and the cause is re. manded, with instructions to enter a decree for the complainant recognizing and enforcing its lien on all the property described in the deed of trust set forth in the bill, and as prayed for.
INTERNATIONAL TRUST Co. v. NORWICH UNION FIRE INS. SOC. (Circuit Court of Appeals, E'ghth Circuit. December 2, 1893.)
When both parties assume in the circuit court that the bill stated matters of equitable cognizance, and the case was within the jurisdiction of that court, the circuit court of appeals can dispose of the controversy on its merits, though the relief sought might have been given in a suit
at law. & INSURANCE--RENEWAL OF POLICY-ESTOPPEL BY AGENT'S DECLARATION.
When the agents of an insurance company, who are duly authorized to solicit and make contracts of insurance, deliberately represent to the assured that a given policy issued by the company has been renewed, and subsequently receive and appropriate money which they have good reason to believe iş paid to cover the cost of such extended insurance, the company will be estopped, after a loss has occurred, to allege that
the policy was not renewed. 8. SAME-STATEMENTS BY AGENT'S CLERK.
Acts done and information given by an employé of an agent of a company in the line of his duty is binding upon the company. 4. SAME-INSURABLE INTEREST-PURCHASE OF MORTGAGE NOTE.
A consummated agreement for the sale of a deed of trust and of a note secured thereby, which is in the vendee's possession, vests an equitable title in the vendee, so as to give him an insurable interest in the property covered by the deed, though the note is not indorsed by the vepdor.
Appeal from the Circuit Court of the United States for the District of Colorado.
The International Trust Company, of the city of Denver, the appellant, sued the Norwich Union Fire Insurance Society, the appellee, to enforce the delivery and payment of a policy of insurance in the sum of $10,000 on an hotel building in the city of Pueblo, Colo., which was destroyed by fire on October 9, 1893. The bill of complaint alleged, among other things, that John R. Gordon, the owner of the insured property, on December 12, 1892, executed a deed of trust thereon to secure the payment of a note in the sum of $50,000, which was held by the International Trust Company, of the city of Denver, hereafter termed the "Trust Company"; that said note and deed of trust were subsequently sold by said trust company to the Investors' Mortgage Security Company, Limited, of Scotland, which company is here i Rehearing denied January 20, 1896.
after termed the “Mortgage Company"; that said note matured on June 12, 1893, and that said Gordon applied for an extension of the loan, whereupon the trust company repurchased said note and deed of trust from the inortgage company, and became reinvested with the title thereto.
The bill of complaint also averred that the Norwich Union Fire Insurance Society, the appellee, which is hereafter termed the "Insurance Company," on August 26, 1892, issued to John R. Gordon its policy of insurance on the hotel property in question in the sum of $10,000; that the policy was known as a "builder's risk," the hotel at the time being in process of erection; that by a mortgage clause which was attached to said policy on December 12, 1892, said policy became payable to the trust company and its assigns to further secure the aforesaid note in the sum of $50,000 that was then held by the trust company; that said policy remained in force until February 26, 1893, when it was renewed for another term of six months; that is to say, until August 26, 1893. The trust company further averred that when Gordon applied to it for an extension of the aforesaid loan it took the precaution to confer with the local agents of the insurance company at Pueblo, Colo., with a view of ascertaining whether the policy would be again renewed, and that it received assurances that it would be renewed on August 26, 1893, and thereafter continued in force with a mortgage clause attached for the benefit of the trust company; that on August 27, 1893, it received further assurances from the insurance company's agent at Pueblo, who was authorized to give such assurance and to issue policies, “that a renewal and extension policy had been actually executed and issued by the defendant, and was in process of being transmitted to the complainant company,” and that it would keep the hotel insured for the benefit of said conpany, on the same terms as for the previous six months, until February 26, 1894. The trust company further alleged that on or about September 26, 1894, it paid to the insurance company, in compliance with its demand, the premium charged for the renewal of said policy from August 26, 1893, to February 26, 1894, and that from and after August 27, 1893, it was induced to believe that a renewal policy had been executed and was in force, although it did not in fact have possession of the same; that after the occurrence of the fire on October 9, 1893, the defendant insurance company for the first time alleged and claimed that the policy in question had not been renewed on August 26, 1893, and that it was not liable thereon.
In view of the premises, the bill prayed for the following relief, namely: That the court would "order, decree, and adjudge that at the time of the fire aforesaid there was a good, valid, and existing agreement of insurance by defendant company upon the property herein set out, with loss thereon payable to complainant company”; that it would furthermore "adjudge, order, and decree that defendant company shall deliver to complainant com. pany the renewal policy of insurance, together with the mortgage or agreement clause thereto attached, issued on or about the 26th day of August, 1893, as * alleged, or that, in case said renewal policy of insurance shall have been canceled or destroyed, the same be declared in full force and effect, and binding upon defendant company, and that defendant company do specifically carry out, perform, and comply with all the terms and provisions of said renewal policy of insurance as the same existed after the issue there. of."
The answer to the bill of complaint admitted many of the allegations touching the issuance of the policy on August 26, 1892, to John R. Gordon, and the renewal thereof on February 26, 1893, with the mortgage clause thereto attached, making the same payable to the trust company and its assigns; but it denied, in substance, all the allegations which tended to show a renewal of said policy on August 26, 1893, and all the allegations tending to show an agreement to renew the policy on that date. It also denied that it received the premium for a renewal of the policy on August 26, 1893, or that the trust company reacquired the note and deed of trust of the mortgage company prior to August 26, 1893, as was charged in the bill of complaint. By way of special defense, the defendant company further pleaded that John R. Gordon sold the insured property on July 3, 1893, to the Mesa Hotel & Improvement Company without its knowledge or consent; that by virtue of