Moore v. Glasscock , 217 S.W.2d 428 ( 1948 )

On Motion For Rehearing. Appellees contend in their motion for rehearing that the trial court was authorized to instruct a verdict because appellants failed to tender the amount of the debt due Dr. Moore. We do not agree with this contention. It is undisputed that the land involved was a part of the homestead of appellants and was such at the time of the execution of the deed to Dr. Moore. If the instrument was intended as a mortgage on appellants' homestead, it was void. This being true, it was not incumbent upon the appellants to tender the amount of the debt as a prerequisite to their right to urge that the deed was intended as a mortgage. Bemrod v. Heinzelman et ux., Tex. Civ. App. 263 S.W. 951; 22 Tex.Jur., page 161. Furthermore, the appellants retained possession of the land and never at any time surrendered possession thereof to Dr. Moore. The debt was barred by limitation. We think for this reason appellants could assert their defense that the deed was intended as a mortgage without offering to pay the debt. Citizens' Nat. Bank of Valliant, Okla., v. Stroud, Tex. Civ. App.204 S.W.2d 1010 (and cases therein cited).

Upon a further consideration of this case, we are of the opinion that the issue of improvements in good faith is not in the case. Elam and Stewart v. Parkhill, 60 Tex. 581. There is no theory presented in the record under which the appellants could recover the value of improvements. If, as contended by the appellants, the deed was intended as a mortgage, or if, as contended by the appellee, the deed conveyed the title to Dr. Moore, the appellants in either case could not recover for the improvements made by them upon the land after the execution of the deed. That portion of the opinion holding that an issue of fact as to the improvements in good faith was raised by the evidence is hereby withdrawn.

We have carefully considered all other points raised in the motion for rehearing and it is our opinion that we made a correct disposition of this case and we adhere to the holdings made in our original opinion except in the respect above stated.

Motion for rehearing granted in part and overruled in part.