Claybrooks v. Kelly

Citations

• 61 Tex. 634
• 1884 Tex. LEXIS 163

Syllabus

<p>1. Evidence — Fraud.— Testimony in a suit involving title to property, offered for the purpose of showing that, though the consideration passed from one party, title thereto was made under his direction to another party, for the purpose of hindering, delaying or defrauding the creditors of the party who paid the consideration, is inadmissible, when the deed was never attacked by the creditors, when it was not shown that any creditor was delayed or hindered by the transaction, and when no creditor is before the court complaining of it.</p> <p>2. Mortgage — Homestead.— A vendor of land took in exchange other land on which there was an unsatisfied lien. To secure himself against loss if that lien should not be satisfied by his vendee, he took a mortgage on the property sold. The lien was not paid off, but the laud which the vendor received in exchange was sold to satisfy the pre-existing lien and bought by a third party. In a suit by the vendor to foreclose his mortgage, held,</p> <p>(1) There was no serious error in instructing the jury that the mortgage (the sale and loss of the property thereby received in exchange being shown) authorized the jury to find for plaintiff the value of the lot received in exchange, at the date of the sheriff’s deed therefor to the purchaser, who bought at the sale to satisfy the pre-existing lien.</p> <p>(2) When the vendee failed to make the last payment to satisfy the lien already existing on the land he gave in exchange, the right of his vendor to foreclose his lien on the land the vendee received was complete.</p> <p>(3) The vendee could claim no homestead rights as against his vendor until the mortgage was satisfied by his discharge of the lien existing at the time of sale or exchange, on the property he gave in exchange. Failing to satisfy that lien, his homestead right was subordinate to the mortgage on the premises he received.</p>