Citizens' State Bank v. Jeffries , 2 S.W.2d 317 ( 1927 )

It is believed that the trial court correctly decided the case; and the judgment will be affirmed, in view of the established facts. The conveyance of the lots in suit to D. B. Hambrick was, as found by the jury, merely in order "to fix a lien to secure a debt"; that is, to secure a loan from appellant bank. It is clear that the appellees at the time had a right of homestead and exemption as such in the property. They were actually residing thereon, using and occupying it as homestead. A mortgage upon a homestead "to secure a debt" of the kind in evidence is absolutely void. Article 16, § 50, Const. And the appellant, who was the creditor, knew, as the jury found, that the transaction was purely a mortgage in nature. D. B. Hambrick, too, knew it. D. B. Hambrick and the president of the bank admitted that they knew that the property, at the time of the loan and before, was actually occupied, used, and claimed as homestead by appellees. The bank could not ignore the notice conveyed by the actual use of the property. In such actual knowledge, the bank may not predicate validity of the mortgage by estoppel, especially upon the designation of lot 1, block 17, as homestead, of date with the mortgage, January 21, 1924. The bank would be held to know that, in the absence of actual occupancy of lot 1, the appellees could not by mere declaration substitute the lots actually used for homestead lot No. 1 not so used. Parrish v. Hawes, 95 Tex. 192,66 S.W. 209; Dodson v. Dickey (Tex.Civ.App.) 264 S.W. 586. The rule would be different had the appellees been actually residing upon lot 1. Merchants' Planters' State Bank v. Nichols (Tex.Civ.App.)275 S.W. 84.

Further, the court was warranted in finding from the evidence, and which finding we must presume he made, that such designation or declaration of homestead was not made in real intention and purpose, but only in pretense, as all the parties knew and understood. The appellees had permanently abandoned lot 1, block 17, as their homestead some time prior thereto. The parties contemplated and understood, as the evidence goes to indicate, that the appellees were not at all intending to abandon their residence upon the lots so undertaken to be mortgaged, and their use and occupancy of the same as a home. And in the light of the evidence in behalf of appellees the bank loaned no money on the faith of such declaration, and such declaration in no wise induced the loan of the money and the taking of the mortgage. In the circumstances, the bank acquired no lien or title in the premises in virtue of the deeds to and from D. B. Hambrick. Hurt v. Cooper, 63 Tex. 362. And it is thought that, in view of the circumstances, the bank may not successfully invoke estoppel by judgment on the order of the bankruptcy court setting aside lot 1, block 17, as homestead. Estoppel by judgment is available only against a party to the proceedings, or those in privity with him. The bankrupt's claim of lot 1, block 17, as homestead, when in fact and in law it was not, eliminating it as assets of the estate, was undoubtedly, in view of the evidence, a clear imposition upon the referee, and an injustice to general creditors. It amply afforded ground for revocation of his discharge upon timely application therefor. As against him the order would legally preclude a re-examination into the truth of the matter decided. Friedsam v. Rose (Tex.Civ.App.) 271 S.W. 417 (wife not a party). The law estops a person to falsify a judicial act to which he is a party, and from which he has received a benefit. The rule rests on the broad ground of public policy. Yet Mrs. Jeffries was not a party of record to the proceedings. And a judgment affecting a homestead is not binding on the wife, when she is not a party to the action. Seay v. Fennell, 15 Tex. Civ. App. 261, 39 S.W. 181; Gates v. Pitts (Tex.Civ.App.) 291 S.W. 948; Crouch v. Holterman, 272 Mo. 432,199 S.W. 193; King v. Wilson, 95 Kan. 390, 148 P. 752. Quoting from Jergens v. Schiele, 61 Tex. 255 :

"If there [were] any defense that could have been urged growing out of her [the wife] homestead rights which would have defeated the action, then she was a necessary defendant in the cause."

In this state the wife has an interest in the homestead property, although the title may rest in the husband, and she has a right to prosecute an action for the protection of that interest. Stallings v. Hullum, 89 Tex. 431, 35 S.W. 2. It is admittedly shown that the lots in suit, although not scheduled, had a homestead exemption which antedated, and existed at the time of, the bankruptcy proceedings, and continued uninterrupted to the date of the present trial. The title to property reserved by the state law as the debtor's exemption does not rest in the trustee in bankruptcy, but remains in the debtor. It is expressly excluded from the assets of the bankrupt's estate to be administered. Lockwood v. Exchange Bank, 190 U.S. 294, 23 S. Ct. 751, 47 L. Ed. 1601. The bank knew at the time of bankruptcy that there was present residence and actual occupation of the lots as homestead. There had been no abandonment of the premises as homestead, and there was, as now, actual occupation of the lots as homestead. The bank could legally acquire no valid lien or right of estoppel in virtue of the bankruptcy proceedings, 14 months after the inception of the mortgage, that the Constitution of the state would not allow. There has never been, even to the date of the trial, divestiture of the homestead character of the lots in suit. It is immaterial that the wife knew of the bankruptcy proceedings and the order, since there is no claim in the evidence that she personally participated in any active fraud in respect thereto. And considering such proceedings in the bankruptcy court in the light of an attempted renunciation by the husband of the premises in suit as exempt, still, as against the wife, such renunciation, as ground for estoppel, would not, in the circumstances, aid the bank's purported lien. A mortgage void at origin because given on a homestead is not validated by a subsequent selection of another homestead. Inge v. Cain, 65 Tex. 75; O'Brien v. Woeltz, 94 Tex. 148, 58 S.W. 943, 59 S.W. 535, 86 Am. St. Rep. 829. As expressly held in the Inge Case, supra:

"We are of opinion that the clause quoted from the Constitution of 1876 renders all liens upon the homestead, not expressly excepted, absolutely void, and that they are not vitalized by the divestiture of the homestead character."

It is fraud or misconduct only at "the inception of the mortgage" that estops the assertion of the homestead right. Quoting:

"Had the property been in use at the time of the disclaimer — had it been in fact a homestead — the disclaimer would have had no effect. It would have been only an attempted evasion of the law exempting the homestead from sale under mortgage or execution for debt." Kempner v. Comer, 73 Tex. 200,11 S.W. 196.

Affirmed.

On Rehearing. The bank sets up no right or interest in or to lot 17. That lot is not involved in the controversy. The bank's claim arises in and under the purported lien on the lots in suit, and the litigation is entirely in respect to the validity of the liens. In the original opinion it was determined, namely: (1) That the bank knew of the use and occupancy of the lots in suit as homestead, and, so knowing, it was not in any wise in the attitude of an innocent holder of the purported lien notes, and therefore not entitled to a foreclosure of the lien on or a deed to the homestead; (2) that the order of the bankruptcy court setting aside as exempt lot 17 did not have the effect to work estoppel and preclude litigation in respect to the validity of the purported liens on the different lots in suit.

After a full reconsideration of the case, we adhere to the conclusion that the bank may not invoke estoppel as by judgment against Mrs. Jeffries upon the order of the bankruptcy court exempting lot 17. Mrs. Jeffries was not a party to proceedings in bankruptcy as "debtor." L.R.A. 1916D, 1233; In re Dixon, 18 F.2d 961. That there was imposition upon the bankruptcy court and the creditors of the estate as to lot 17, even though with knowledge of Mrs. Jeffries would not create an incontestible right to the bank to the property in suit or to enforce the purported liens against it. There was in no wise involved in the order exempting lot 17 the determination of the validity of the purported liens against the lots in suit, and the bank derived no right under such order to the property in suit. Mrs. Jeffries can still legally deny the validity of the lien and set up against it claim of homestead to lots in suit, without having the order of the bankruptcy court set aside. As analogous, it has been held that the wife may not be conclusively estopped from claiming her separate property by reason of having inventoried it as a part of the estate of her deceased husband; she not having sold same to a person without notice of her rights. Mitchell v. Mitchell, 80 Tex. 101,15 S.W. 705; Speer on Marital Rights, § 252. And estoppel in pals, as growing out of a fraudulent purpose and a fraudulent result, as exempt lot 17 may not be made the basis of relief, because the bank did not acquire the purported lien on the lots in suit in reliance on such conduct, and it did not change its position for the worse. The bank's claim of the notes was merely approved by the bankruptcy court and their validity became a subject-matter of litigation as occasion existed in a court of competent jurisdiction. The purported lien notes long antedated the bankruptcy proceedings.

As stated in the original opinion, the attempted renunciation of the property in suit as homestead by merely listing lot 17 in its stead, although a fraud upon the bankruptcy court as to lot 17, will not aid the purported lien of the bank. It would not work estoppel for that reason. Lot 17 was not the actual homestead at the time, but the lots in suit were. It is not, as so often laid down in the cases, mere declarations that constitute land homestead, but the use to which it is put. It is undisputed that the lots in suit before, at the time of, and since, the bankruptcy, were actually occupied and used as homestead.