Moores v. Wills

Citations

• 69 Tex. 109
• 5 S.W. 675
• 1887 Tex. LEXIS 787

Syllabus

<p>1. Homestead. — A loan of money secured by a deed absolute on Its face to the homestead of the debtor, cotemporaneous with which is executed an agreement in writing to reconvey on the repayment of the money loaned, is invalid, either as a conditional sale or mortgage, when not signed and executed by the wife as required by the statute.</p> <p>3. Same — Evidence.—In a suit prosecuted by the executor of the creditor to foreclose the lien claimed under such a deed, when the defense relied on was that the property conveyed was at the time of making the deed a homestead, the defendant may testify to any facts tending to show that the land was a homestead at the date of the execution of the deed. Such testimony “as to any transaction with, or statement of the testator,” is not within the inhibition contained in article 2248, Revised Statutes.</p> <p>8. Homestead. — The fact that the wife never has lived upon the place oeeu. pied and dedicated by the husband as a homestead, can not render it less the homestead of the family; following Henderson v. Ford, 46 Texas, 628.</p> <p>4. Subrogation — Qü-ffiRE.—As to whether one claiming a lien on a homestead, secured by a mortgage executed by the husband, and who pays the amount due to the State from the debtor and receives in the debtor’s name the patent to the land, is thereby subrogated to the rights of the State, and entitled to enfore a lien on the land for his re-imbursement, quaere.</p> <p>5. New Trial — Newly Discovered Evidence. — When, in a motion for new trial on account of newly discovered evidence, it is apparent from the facts stated that a failure not to discover the evidence sooner was negligence, a new trial will be refused. A motion for new trial for such a cause is fatally defective when not supported by the affidavit of the party seeking the new trial.</p>