Hexter v. Urwitz , 6 Tex. Civ. App. 580 ( 1894 )

1. On December 9, 1889, the appellee Marie B. Urwitz, joined by her husband, Max Urwitz, conveyed by a deed, in form an absolute conveyance with general warranty of title, to the appellant, J.K. Hexter, 31 1/4 acres of land adjoining the town of Victoria, the separate property of Mrs. Urwitz. Said deed recited a consideration of $3000, and was duly acknowledged and recorded in the record of deeds for Victoria County. Possession of the land was at once given to the grantee, Hexter.

2. Said deed was executed upon the express oral agreement, made by the parties at the time, that the appellant should not sell the land within two years from the date thereof, and should reconvey the same back to Mrs. Urwitz at any time before making sale thereof, upon payment of the said sum of $3000, which Hexter had loaned to her, with interest; and if sold by appellant after the expiration of two years, he should account for the difference between the price for which he should sell the same and the said sum of $3000 and interest.

3. Hexter sold the land without the knowledge or consent of the plaintiff on May 7, 1891, to one George M. Johnson, an innocent purchaser, for a consideration of $5000, and refused on demand by Mrs. Urwitz to account to her for any sum whatever, claiming that he had bought the property absolutely. This suit is brought to recover damages for the violation of said agreement, which are laid at the difference between the debt and the value of the property.

Conclusions of Law. — 1. A deed absolute on its face may be shown by parol evidence to be a mortgage or conditional sale. The facts in this case show that the deed from Mrs. Urwitz and her husband to Hexter for the land was a mortgage with power of sale, to secure the sum of $3000, to be repaid with interest on or before two years after date. The parol agreement by which the deed is shown to be a mortgage does not come within the statute of fraud, requiring contracts not to be performed within a year to be evidenced by a memorandum in writing, both on account of the rule itself, allowing proof of parol evidence to engraft the trust on the deed, which is in writing, and because the agreement could have been performed and discharged within a year by payment of the money and interest.

2. Defendant alleged in his answer, that the land was the homestead of the appellees, and being such they could not enforce the contract creating a mortgage thereon, because such a contract is in contravention of the law and void. A demurrer to this part of the answer was sustained by the court, and the question has been presented here, and the action of the court in this respect is relied on for a reversal of the judgment. There was no error in sustaining the demurrer. The law declares that any attempted encumbrance of the homestead, except in certain cases, shall be void. But the purpose of the law, which is to exempt the homestead from seizure or sale for debt, would be defeated if the plaintiffs here were denied the right of showing the nature of the conveyance and recovery of damages for the breach of the agreement. The rule of law expressed in the maxim ex turpi causa, non oritur actio, does not apply.

We have examined the statement of facts, and believe the verdict of the jury fully sustained by the evidence. The judgment of the court below, in favor of appellees for the difference between the debt and the amount for which the property was sold, will be affirmed.

Affirmed.

Justice PLEASANTS did not sit in this case.