Gore v. Citizens State Bank

ALEXANDER, Justice. W. M. Gore and wife, Sady Gore, brought this suit against Citizens State Bank of Buffalo and W. D. Recknor to cancel certain conveyances theretofore executed by plaintiffs and in trespass to try title to recover 100 acres of land in Leon county. The plaintiffs alleged, in substance, that they previously owned and occupied as their homestead two tracts of land of SO acres each in Leon county; that one of said tracts was encumbered by a lien to secure the payment of notes in the sum of $1,977.66 held by the Buffalo State Bank and the other tract was free and clear of liens; that on December S, 1922, while said property was so occupied by them as a homestead, they executed a pretended conveyance thereof to the Buffalo State Bank in cancellation of the indebtedness held by it and that thereafter on December IS, 1922, said bank recon-veyed the land to them and retained a purported lien on the entire 100 acres to secure the payment of notes for the total sum of $2,000;, that said transactions were simulated merely for the purpose of placing the lien on the entire homestead and were void; that on November 21, 1925, the defendant Citizens State Bank of Buffalo, as the holder of the above-described vendor’s lien notes for $2,000 previously held by the Buffalo State Bank, procured a deed from plaintiffs by which said land was conveyed to said bank in cancellation of said notes; that said conveyance was without consideration and was void for the reason that the contents of the deed were not fully explained to Mrs. Gore at the time she. executed and acknowledged the same. They further alleged that the defendant Recknor was claiming some interest in the land. In addition to a general denial, the defendants pleaded the three, four, five, and ten-year statutes of limitation and alleged that they had purchased the land in good faith for value and without notice, and that the plaintiffs were estopped to set up the alleged defects in said conveyances. At the conclusion of the evidence, the court gave an instructed verdict in favor of the defendants. The plaintiffs appealed. The evidence discloses that plaintiffs conveyed the land to the Citizens State Bank of Buffalo by deed dated November 21, 1925, for a recited consideration of $1 and the cancellation of notes in the sum of $2,000 then held by said bank, being the notes formerly held by the Buffalo State Bank. Said deed' appears on its face to have been properly acknowledged by both Gore and wife. The plaintiffs were temporarily residing in Hopkins county at the time they executed said deed. Shortly thereafter they returned to Leon county, rented the land from the bank, paid rent for the use thereof for the years 1926 and *722 1927, and moved off of it again in the fall of 1927: On September IS, 1927, the bank conveyed the land to W. D. Recknor for the sum of $225 cash and vendor’s lien notes for $675, and he has occupied the land continuously since said date. He had paid the balance of the purchase price pri- or to the filing of this suit on the 11th day of October, 1932. It is not contended that Recknor had notice of any of the defects in any of said conveyances. It is apparently conceded by appellants that the notes for $1,977.66 form•erly held by the Buffalo State Bank represented a valid indebtedness owing by W. M. Gore to said bank, and that such indebtedness was secured by a valid lien on 50 acres of the land in question. It is their •contention that this indebtedness could not be made a valid encumbrance on the balance of the homestead and that the attempt to do so by their conveyance to the Buffalo State Bank and the reconveyance to them was a nullity. For several reasons', we do not deem it necessary for us to determine the correctness of appellants’ contention in •.this respect. In the first place, the Citizens State Bank, as the successor of Buffalo 'State Bank, held a valid indebtedness a■gainst W. M. Gore. Gore and wife had a right to convey the homestead to the bank in cancellation of said indebtedness, as ■they did by their deed dated November 21, 1925, although the indebtedness forming the consideration for the conveyance was not secured by a lien on the homestead. Hiner v. Meyer (Tex.Com.App.) 44 S.W.(2d) 961. In the second place, the conveyance from appellants to the Citizens State Bank appears on its face to be regular. 'The evidence was without dispute that Recknor purchased the property in good faith and for value and there is no contention that he or said bank had any knowledge of any irregularities in such convey.ance. Under such circumstances, Recknor .acquired a good title to the property even though the conveyance to the Buffalo State Bank and the reconveyance to appellants was in fact a fictitious transaction made for the purpose of placing a lien on the .homestead. 22 Tex.Jur. 162; Graves v. Kinney, 95 Tex. 210, 66 S.W. 293. The fact that the deed from appellants to the Citizens State Bank was not fully explained to Mrs. Gore before she executed same does not alter the case. Admittedly, she signed the deed and appeared before the notary for the purpose of acknowledging same. The notary’s certificate is in statutory form and the appel-lees, Recknor and the bank, were without notice'that the deed had not been fully explained to Mrs. Gore or that she did not fully understand the contents of the same when she signed it. Since Recknor purchased the property in good faith for value and without notice, the certificate of the notary, under the circumstances above set out, is conclusive of the facts stated therein. Sanger v. Calloway (Tex.Com.App.) 61 S.W.(2d) 988, par. 3; Wheelock v. Cavitt, 91 Tex. 679, 45 S.W. 796, 66 Am.St.Rep. 920; Blankenship v. Stricklin (Tex.Civ.App.) 77 S.W.(2d) 339, par. 3, and authorities there cited; 1 Tex.Jur. 585. We are further of the opinion that appellants’ cause of action, if any they ever had, was barred by limitation at the time this suit was filed. Chicago, T. & M. C. Ry. Co. v. Titterington, 84 Tex. 218, 19, S.W. 472, 31 Am.St.Rep. 39; Groesbeck v. Crow, 91 Tex. 74, 40 S.W. 1028; Dean v. Dean (Tex.Civ.App.) 214 S.W. 505, par. 12. The judgment of the trial court is affirmed.