W. F. Dulaney Sons v. Lawler , 282 S.W. 321 ( 1926 )

As has been previously stated by Justice LEVY, this is an original application by Lawler to enjoin the sale of two tracts of land which had been levied on as the property of D. I. and A. C. Vickers. The plaintiff below alleged that he was the owner of the land, and that a sale under the execution would cast a cloud upon his title. It was upon that ground alone that he sought the injunction to prevent the sale. He especially pleaded his title through two separate conveyances from D. I. and A. C. Vickers, alleging the payment of a valuable consideration. One tract, he stated was acquired by him on November 15, 1921, and the other in July of 1922. Both of these conveyances were made prior to the rendition of the judgment against the Vickerses upon which the execution was issued. He further alleged that prior to the conveyances made to him the land had been occupied by D. I. and A. C. Vickers as their homestead.

The appellants answered, pleading, in substance, the judgment previously recovered against the Vickerses, and the issuance of the execution. They denied that Lawler was the owner of the land, and charged that the conveyance to him was a device and a sham and for the purpose of defeating the debt against the Vickerses. They further alleged that the two tracts of land levied upon were conveyed to Lawler merely for the purpose of enabling D. I. and A. C. Vickers to secure a loan; that Lawler had never claimed to own the property prior to the filing of his suit, had never rendered it for taxation, or exercised any acts of ownership over it; that the land had been regularly rendered for taxation and the taxes paid by D. I. and A. C. Vickers as their property; and that they had continuously used and occupied the land, collecting the rents, and otherwise exercising the dominion of true owners. They also alleged that D. I. and A. C. Vickers owned other lands which they were then claiming as their homesteads. No reply was filed by Lawler to this answer. At the conclusion of the evidence the court directed a verdict in favor of Lawler.

The judgment rendered must rest upon one or the other of the following legal conclusions: (1) That it conclusively appeared that Lawler was the real owner of the land, and for that reason it was not subject to the writ; or (2) that D. I. and A. C. Vickers were the owners and the land was their homestead at the time the writ was levied.

The first question, then, is: Who was the owner of the land, Lawler or the Vickerses? The only evidence of Lawler's ownership is furnished by the deeds under which he claims. These upon their face appear to be absolute conveyances, and, of course, make a prima facie case of ownership. But it was conclusively shown that the transactions out of which they grew were only pretended sales, and that the deeds were never intended to convey the ownership of the property to Lawler. The execution of the deeds by the Vickerses and the notes by Lawler was only a scheme for securing a loan. The only witness who testified on the trial was A. C. Vickers, called to the stand by Lawler. In his direct examination this witness testified as to when and from whom he and his brother acquired the two tracts of land. He also stated in that connection that up to the time of the conveyances to Lawler they had been occupying the land as their homestead. They had resided upon the land from the time it was acquired until the time of the trial. Lawler was their brother-in-law. D. I. and A. C. Vickers were partners, and had cultivated and used the land continuously since its purchase. On cross-examination the latter said:

"At the time the deeds were made I lived on the place, and I live on the place now. I have never moved off of it. I have not paid Mr. Lawler any rent for this land. I have paid the taxes and rendered it for taxes every year in our name. Since the deeds were made the management of the land has not changed a particle. Mr. Lawler has not paid me any interest on these notes. He has not paid me a cent. In making the deeds we did transfer the title. I did not mean for Lawler to take the land under the deed. It was my homestead. We did convey the land to Mr. Lawler, and we put it on record. To be honest with you, I did not intend for him to take the land under that deed I have on record. I have never delivered him the land. These deeds were made in order to get a loan. Before this deed was made to my sister I owned an interest in the 280 acres of land. I did not own the 108 acres that I conveyed to my sister besides that. I did not own any land except my interest in the 280 acres. * * * I said this sale was made just for the purpose of getting a loan. The land has never been deeded back to us. Lawler has never signed a deed back to us. Nevertheless, he understood, and I understood, and we all understood that he was not to get the land. He paid us no cash as called for in the deed. The deeds were drawn for the purpose of selling the notes and getting a loan on the land. One of the deeds called for $17,000 cash besides the notes. Mr. Lawler did not pay that cash. He did not pay any other cash consideration. When I deeded it to my sister she did not pay the cash consideration at all. It was for the purpose of creating these notes."

On redirect examination he testified:

"We deeded the land to Lawler for the purpose of getting a loan on it, for the purpose of getting money on the homestead for repairs and to keep up the farm. We deeded the homestead to him for the purpose of getting a loan to make repairs on it. At the time we deeded the land to Lawler we had no intention of deeding it to him for the purpose of placing it beyond the reach of Dulaney or any other creditors. I deeded it as a homestead. I thought it was beyond the reach of my creditors."

If this testimony be true, and in this appeal it must be taken as true, the land was the homestead of the Vickerses when conveyed, and the conveyance to Lawler was only a pretended sale for a purpose which the Constitution forbids. Constitution, section 50 of article 16, among other things, says: "And all pretended sales of the homestead involving any condition of defeasance shall be void." Sham sales of this character are clearly within the meaning of that provision. Sanger Bros. v. Brooks,105 S.W. 37. 101 Tex. 115; Gray v. Shelby, 18 S.W. 809, 83 Tex. 405. Lawler therefore had no title which a sale under the execution would cloud. At most he held only a legal title in trust for Vickers, who still owned the real beneficial equitable interest. That such an equitable interest may be levied upon and sold under execution against the owner is established by the following cases: Hirshfield v. Howard (Tex.Civ.App.)60 S.W. 806; Fallen v. Weatherford (Tex.Civ.App.) 158 S.W. 1174; Peeples v. Slayden-Kirksey Co. (Tex.Civ.App.) 90 S.W. 61. A sale of the equitable interest of Vickers could not cast a cloud upon the naked legal title of Lawler, for the purchaser under an execution sale would acquire only the Vickerses' interest. Therefore Lawler's suit is without merit. The burden rested upon him to prove the character of ownership which he alleged. Conceding that as trustee for the Vickerses he might have secured the injunctive relief for the benefit of the latter, the answer is that he made no such effort. In order for a trustee to recover a judgment in that capacity he must plead as well as prove his fiduciary relation and the facts which warrant the relief sought. No such pleading appears in this case. Lawler's suit is founded alone upon a fee-simple title and full ownership in himself.

The next question is, was the land the property of the Vickers? I understand from the opinion disposing of this appeal that the judgment of the trial court was affirmed Upon the conclusion that the real beneficial interest was still owned by the Vickerses, and that it was not subject to the writ because it was their homestead at the time of the levy. The finding that the land was the homestead of the Vickerses negatives the fact that it was the property of Lawler. If the land did not belong to Lawler in the right alleged by him, then his pleadings were not sustained by the evidence, and no judgment could have been rendered in his favor. Lawler did not plead an existing homestead right in the Vickerses. On the contrary, he pleaded that the Vickerses had theretofore parted with the title, thereby implying that their homestead rights ceased on the dates of the conveyances to him. The last of those conveyances was dated more than a year prior to the filing of his application for the injunction. The Vickerses might thereafter have abandoned the land as their homesteads. If the sale was void when made to Lawler for the avowed purpose of evading the constitutional inhibitions, the subsequent abandonment of the property by the Vickerses would not validate the conveyances. Hoefling et al. v. Thulemeyer et al. (Tex.Civ.App.)142 S.W. 103; Zwernemann v. Von Rosenburg, 13 S.W. 485, 76 Tex. 522; Lacy v. Lockett, 17 S.W. 916, 82 Tex. 190. The same result would follow if the deeds were executed with the distinct understanding that no rights were to pass. It may be asked, can appellants, as creditors of the Vickerses, set up the invalidity of the conveyances from the Vickerses to Lawler? They can, in the absence of any pleading and proof, that the property is still the homestead of the Vickerses and exempt from forced sale. There is nothing in the pleadings of Lawler claiming a present homestead right in any one, and the Vickerses are not parties to the suit. Moreover, A. C. Vickers, the only witness to testify upon the trial, did not state that he and his brother were then claiming a homestead interest in all of the land levied upon. Appellants had alleged in their answer that the Vickerses owned other lands which they were claiming as their homestead, and this was not denied.

But even if the proof in this case did show that it was the existing homestead of the Vickerses at the time of the levy of the writ, such proof cannot be considered in the absence of appropriate pleadings. "Facts, not alleged though proved, cannot constitute the basis of an adjudication." Hall v. Jackson, 3 Tex. 311; Paul v. Perez, 7 Tex. 338; McKinney v. Fort, 10 Tex. 234; Denison v. League, 16 Tex. 408; Middlebrook Bros. v. Zapp, 10 S.W. 732, 73 Tex. 29; Cooper v. Loughlin,13 S.W. 37, 75 Tex. 524; G. H. S. A. Ry. Co. v. Scott, 44 S.W. 589,18 Tex. Civ. App. 321.

My conclusion is, the judgment of the trial court should be reversed and the application for the injunction refused, because it conclusively appears from the evidence that Lawler would sustain no injury by the levy of the writ, and was therefore not entitled to the relief prayed for. No other relief was sought.