Love v. Breedlove

STAYTON, Chief Justice. Appellant the property in controversy to Scott Porter by a deed, executed in form and manner sufficient to convey the homestead, which recited consideration paid. Appellee claims through a mortgage with power of sale executed by Scott Porter after appellant and her husband had conveyed to him. Appellant now claims that the property was the homestead of herself and husband at the time the conveyance was made to Porter, and that [652] the instrument through which this was done was understood by the parties to be only a mortgage. That the property was homestead, and that appellant and her husband remained in possession after the deed was made to Porter, and that she so remained until this action was brought, is fully shown. It must further be conceded, under the uncontroverted evidence, that appellee is a purchaser for valuable consideration, and if he purchased without notice that the conveyance to Porter was not what on its face it purported to be, then he is entitled to protection, whatsoever may have been the agreement or understanding between Porter and appellant and her husband. Ho facts are shown on which the conveyance to Porter could be deemed a mortgage, for there was no indebtedness shown to sustain it. If the deed was not what on its face it purported to be, from all the evidence it must have been the purpose of appellant and her husband to place the title to the property in Porter in order that he might raise money on it as a security for the benefit of the husband, or to indemnify him in case he thereafter assumed liabilities on his account. There is some evidence tending to show that some such purpose may have existed, but on the entire evidence the court below found, if the deed to Porter was not intended as an absolute conveyance, that appellee had no notice of that fact at the time of the transaction through which his right came. The evidence, we think, shows that appellee knew that the property in controversy was the home of Love and family at the time the deed was made to Porter, and that they were in possession at the time the mortgage was executed by Porter; but, as has been heretofore held, these facts were not sufficient in the face of the absolute deed to Porter to affect appellee with notice of any secret agreement between Love and wife and Porter. Eylar v. Eylar, 60 Texas, 315; Hurt v. Cooper, 63 Texas, 362; Heidenheimer Bros. v. Stuart, 65 Texas, 321. There is no fact shown which enables us, as matter of law, to declare that appellee had notice of any such state of facts as appellant alleges existed when the deed to Porter was executed, and in the absence of this the same weight must be given to the findings of the judge on the question of notice that would be on any other question of fact. An application for new trial, in part based on surprise at the absence of Scott Porter, by whom appellant expected to prove that appellee knew that the conveyance to Porter was as claimed by her, was overruled, and this is assigned as error. The record does not show that appellant had taken any steps to enforce the attendance of Porter as a witness, that she had any reasonable ground to believe that he would attend, nor that any objection to going to trial in his absence was made. [653] Under this state of facts a surprise on account of the nonattendance of the witness could not be claimed. Accepting the findings of fact as true, there is no error in the judgment and it will be affirmed. Affirmed. Delivered January 24, 1890.