Pipkin v. Bank of Miami

HENDRICKS, J. In 1909, S. M. Pipkin, the husbánd of Mrs. Belle Pipkin, was in debt to the bank of Miami. The bank was mortgagee of certain sections of land in Roberts county, owned by the said Pipkin, and Pipkin and one Lard entered into a trade, by the terms of which Lard was to pay certain cash for the Roberts county real estate mortgaged to the bank, and, in addition, was to exchange certain residence lots in the town of Pampa, Gray county, Tex., dependent, of course, upon the release by the bank of the Roberts county land. Por the purpose of consummating this trade, and to clear the title to the Roberts county land, the bank released its mortgage upon said Roberts county land, contending that said release was made in consideration that Pipkin, when he acquired the title from Lard to the residence lots in Pampa, would execute a deed of trust upon said property in substitution, in part, for the previous security for the benefit of the bank. Before the execution of the deed of trust upon the Pampa lots Pipkin and his wife moved onto the Pampa property, using the same as their homestead, Pipkin thereafter executing a deed of trust upon said lots as security for the balance of the debt he owed the bank. This suit is an application for a temporary writ of injunction to restrain the sale of the residence lots in Pampa, on the ground that the same constitutes the homestead, and, in addition to a denial of any previous oral agreement with reference to the substituted mortgage on said property, Mrs. Pipkin further asserts that said agreement, if made, is prohibited by the statute of frauds, citing, to sustain the latter position, the following cases: Castro v. Illies, 13 Tex. 229 ; Boehl v. Wadgymar, 54 Tex. 589; Johnson v. Portwood, 89 Tex. 235, 34 S. W. 596; Poarch v. Duncan, 41 Tex. Civ. App. 275, 91 S. W. 1110. Without a detailed analysis of the cases cited, wé think the same are not pertinent to the condition of case presented in this record. Evidently the district judge, in refusing the temporary injunction, resolved the testimony in favor of the bank’s witnesses, establishing the oral agreement to give the mortgage in consideration of the release by the bank upon the Roberts county property. It is to be noted that when this oral agreement was made, Pipkin had no real interest in, or title to, the residence lots in Pampa, as the contract with Lard was necessarily made subject to the acceptance of the bank and the latter’s release of its lien, upon the Roberts county property, without which the deal could not have been made. Though it is held that oral mortgages come within the purview of our statute of frauds, however, beginning with the leading case of James v. Fulcrod, 5 Tex. 517, 55 Am. Dec. 743, it is held that there is an important difference between ours and the English statute, the court saying, in that case: “All agreements within its scope should be brought under its operation; but to go further would lie to assume legislative functions.” Neither does our statute require express declarations of 'trusts to be in writing, as [915] prescribed in the -English statute. ■ Same ease,supra. On account of the omission in our statute of frauds of the language, “any interest in or concerning land,” found in the English statute (which statute is adopted by many other states without change), there is a marked difference in the application of our statute and the application in other states of the English statute, when considering oral contracts. We have contracts affecting interests in or concerning lands in Texas, enforceable though resting in parol, but inhibited where the statute is as broad as the omitted language. James v. Fulcrod supra; Long v. Gray, 13 Tex. Civ. App. 172, 35 S. W. 35; Miller v. Thatcher, 9 Tex. 483, 60 Am. Dec. 172; Houser v. Jordan, 26 Tex. Civ. App. 39S, 63 S. W. 1050; Bailey v. Harris, 19 Tex. 110. We know that an agreement in parol to locate a land certificate for a part of the land is not in the statute; the future acquisition of the title and interest which does not exist at the time the agreement was made inures to the benefit of the party contracting for the location. Watkins v. Gilkerson, 10 Tex. 340; Ikard v. Thompson, 81 Tex. 290, 16 S. W. 1019; Gibbons v. Bell, 45 Tex. 423. We also know that where two persons orally contract to purchase a piece of land, one of the parties to take the title in his own name, the other may enforce the contract, though verbal. Gardner v. Randell, 70 Tex. 453, 7 S. W. 781; Reed v. Howard, 71 Tex. 205, 9 S. W. 109; Masterson v. Little, 75 Tex. 697, 13 S. W. 154. The statute does not apply where a party who borrowed money to pay for the land permitted the creditor to take the title in his own. name and the borrower tendered the money and sues for the land. Long v. Gray, 13 Tex. Civ. App. 172, 35 S. W. 35. Associate Justice Gaines said, in the casé of Sprague v. Haines, 68 Tex. 217, 4 S. W. 371, that the words, “any contract for the sale of real estate,” as used in the statute— “include every agreement by which one promises to alienate an existing interest in land upon a consideration, either good or valuable.” The case of Anderson v. Powers, 59 Tex. 213, was under consideration by Justice Gaines, and overruled. He held that the court had misapplied the authorities to the real status of case in the Anderson-Powers record, saying that: “In none of the cases cited did the parties who subsequently acquired the legal title by patent from the state have any interest in the land at the time of the contract.” In the instant case, Pipkin, not having any real interest in the land at the time the oral agreement was made with the bank for the substitute deed of trust, and said agreement being made to operate upon land to be acquired in the future, we think the. case comes within the principle of the authorities cited, and numerous Others which could be cited. It is clear, under our authorities, that if Martin had agreed with Pipkin for a release of the Roberts county land, in consideration that Pipkin, when he received the deed and title from Lard to the Pampa lots, would then convey the land to the bank in sitisfaction of the balance of the debt, such an agreement would be enforceable, though verbal. Hence, when Pipkin orally agreed to execute a mortgage upon land to be acquired in the future, for the purpose of securing the balance of the debt, what difference can there .be in the cases and the application of the principle? It is clear that if the mortgage, as to future acquired real estate, attaches a trust to the land for the benefit of the bank, the subsequent designation and vesting of the homestead interest is subordinate. McCarty v. Breckenridge, 1 Tex. Civ. App. 180, 20 S. W. 997 (writ of error denied). The order of the district judge, refusing the preliminary injunction is affirmed.