Hunt v. Cass County

LESLIE, Chief Justice. The plaintiff, Cass County, sued W. H. Hunt, Charlie Hunt, Henry Hunt, and Albert Hunt, to recover on four promissory vendor’s lien notes and to foreclose the lien securing the same on a 160 acres of land described in a deed from their father, Jack Hunt, and wife, to defendants. The defendants pleaded lack of consideration, nondelivery of deed, notice to plaintiff prior to purchase of notes, etc. Jack Hunt was granted leave to intervene and he sought to have said deed and notes canceled, alleging that the 160 acres of land on which the foreclosure was sought was at the date of execution of said deed and notes, and for about 40 years prior.thereto, the homestead of himself and family, and that the whole transaction as between himself and wife on the one hand, and his sons and the Citizens State Bank of Linden, Tex., on the other, was a simulated transaction, namely, an attempt to mortgage his homestead, and not an outright sale of same. ■ That the conveyance and execution of the notes were made at the suggestion of S. L. Henderson, the then cashier, of said bank, and L. L. Harper, the then county judge of Cass County, and was for the purpose of enabling said Jack Hunt (a negro over 80 years, of age) to transfer said notes to the bank as security for a debt Jack Hunt owed the bank and the bank in turn to transfer the notes and lien to plaintiff, Cass County, on an obligation the former owed the latter. The notes were immediately transferred to the bank by Jack Hunt and wife, together with all right, title, and interest they had in the land by virtue of the lien. A short time thereafter the bank in like manner transferred the notes, lien, etc., to Cass County which was endeavoring to protect itself against a loss by reason of the financial condition of the bank which appears to have been at that time the county depository and owing the county about $42,000. [811] Jack Hunt further alleged that the plaintiff, Cass County, through its said county judge, had full knowledge of the nature of said transaction or pretended sale and the purpose thereof. The plaintiff denied the allegations of the intervener and the defendants, pleading innocent purchaser and estoppel. The above statement is made to reflect more clearly the reason for the disposition we are required to make of this appeal. It is undisputed that at the date of the execution of the deed and notes, the 160 acres of land was and long had been the homestead of Jack Hunt and family. Although a necessary party to this -litigation, Jack Hunt’s wife is not made a party to the suit. Discussing the effect of a decree of foreclosure of a lien under a similar situation, the court held in Odum v. Menafee, 11 Tex.Civ.App. 119, 33 S.W. 129, 131: “That the decree, in so far as it foreclosed that mortgage, did not have the effect to conclusively establish a lien upon the property; and a sale under it was ineffectual to pass title to the homestead, because the wife was not a party to those proceedings. Campbell v. Elliott, 52 Tex. 151; Thompson v. Jones, 60 Tex. 94; Id., 77 Tex. [626] 627, 14 S.W. 222; Jergens v. Schiele, 61 Tex. 255; Freeman v. Hamblin, 1 Tex.Civ.App. 157, 21 S.W. 1019; Mexia v. Lewis, 3 Tex. Civ.App. 113 [118], 21 S.W. 1016.” In Jergens v. Schiele, 61 Tex. 255, it is held that the wife is a necessary party in such suit, and it is there said: “If there was any defense that could have been urged growing out of her homestead rights which would have defeated the action, then she was a necessary defendant in the cause.” The general rule of law is stated in Law of Marital Rights (Speer) p. 640, § 522, in this language: “In all actions in anyway affecting the wife’s homestead interest, in order to bind her she must be made a party defendant. She has rights in the homestead that no other person can assert for her, and upon which, when called in question, she is entitled to a hearing. In all actions, whether of foreclosure or otherwise, affecting the homestead, if it be desired to conclude the wife by the judgment, she should be made a party defendant; that is to say, if there can possibly be any defense growing out of her homestead rights which she may urge, that would- in anyway defeat the action she must be made a party.” If there is any merit in the proposition that the deed executed by Jack Hunt and wife was a pretended sale of their homestead, and Cass County had notice thereof, then the wife is clearly a necessary party to this litigation, and it is the duty of this court to take notice of her absence. 3 Tex.Jur. § 120; Butman w. Jones (Tex. Civ.App.) 24 S.W. (2d) 796. The record before us brings the instant case within the general rule and excludes the appli-' cation of any of the exceptions thereto. Such being the case, it is the duty of this court to reverse the judgment of the trial court for the reasons assigned, and remand the same to the trial court that all necessary parties may be brought into the suit. It is so ordered.