Burkhardt v. Lieberman

On Motion for Rehearing.

Appellants have vigorously assailed our former opinion in 168 assignments of error.

As appears from our original opinion, the dwelling house in which appellants resided at all times pertinent to this case was on land which was separate and disconnected from the land which is involved in this suit. Now it is perfectly clear that it is possible for the owners of a rural homestead to possess and use land in connection with their homestead, and yet own no homestead rights therein. In what way did the possession of the land here involved put Mr. Lieberman on notice that it was a part of the homestead of appellants? Of course if the land here involved were one tract, and appellants resided in a dwelling house thereon, Lieberman would indeed have had to close his eyes in order to avoid the knowledge that the property was homestead property, because the use of the land so possessed would have absolutely been inconsistent with anything except that it formed a part of their homestead. As stated in Eylar v. Eylar, 60 Tex. 315, 319, "It would seem that the sole office which possession performs, in the matter of notice, is to put a person desiring to purchase upon inquiry, and that it has no effect in determining what the inquiry shall be, or of whom it shall be made.” ■But under the facts of this case Lieberman was at liberty to believe that appellants had not committed a. felony by falsely swearing that the land here involved formed no part of their homestead, if it did form a part thereof. No law required appellants to hold all their rural property up to 200 acres as a part of their homestead; and, it would have been possible that appellants might have owned other property making up their complement. In any case an affidavit is a very solemn form of asserting a fact, and false swearing is a felony. The possession of the land here involved by appellants, though it may have been in fact such as to render such land a part of their homestead, was not such as necessarily did so to affect a prospective purchaser with notice of its homestead character, contrary to affidavits by appellants, any more than the possession of the owners in the Eylar case, supra, affected prospective purchasers with notice that the interest of those in possession was contrary to the record showing of their interest.

We stated in our original opinion, in effect, that the deed of trust given by Mr. Burkhardt to the bank was void, and that the apparent power of sale contained therein was void, and any exercise of it could have been enjoined by appellants. Such a statement by us was not necessary to the disposition of the case, and went too far. Whether or not the power of sale contained in said deed of trust was valid, or void, or merely voidable, we leave undecided. But certainly if the deed of trust and the power of sale contained therein were void, as appellants here claim, such power of sale was void ab initio. And appellants cannot, after clothing the trustee with' apparent power of sale, and after having stood idly by and permitting such power of sale to be exercised whereby a third party parts with his money on the faith that such trustee had the power with which he was apparently clothed by appellants, assert, as against such third party, that such apparent power of sale was in fact invalid. Even in cases where one of two persons equally entitled to consideration, as far as their purposes are concerned, must suffer from the delinquency of a third, the loss more properly falls upon him, who, having readily at hand the means of protection, has failed to avail himself of them. Sackenreuther v. Winston, Tex.Civ.App., 137 S.W.2d 93, 97, writ refused. Appellants contend, in effect, that they swore falsely that the land here *291involved was not their homestead. Can it be said that they are equally entitled to the same consideration that should be accorded to the victim of their deceit?

Appellants’ motion for rehearing, except as to a typographical error which it helpfully calls to our attention and which has been corrected in the original opinion, is overruled.

Motion refused.

Exhibit

“The State of Texas, County of Harris
“Before Me, the undersigned authority, on this day personally appeared Mary Burk-hardt, wife of Otto Burkhardt -⅞»4 ⅛⅛ ⅜¾⅞⅜- well known to me, who having been her oath states: by me first duly sworn on -t-fec-H'-oaths state I am those
“That -Vie-sfe- the owners of ⅛ certain tracts or parcels of land lying and being situated in the County of Harris, State of Texas, described as follows, to-wit:
“Four (4) certain tracts of land in the A. H. Osborne Survey of Harris County, Texas, aggregating 10 acres, 10 acres, 10 acres, and 16 acres, respectively; also 25 acres, more or less, out of the Robert Vince Survey in Harris County, Texas, said tracts in each instance being fully described by metes and bounds in deeds to affiant respectively.
“II.
“That neither said property nor any part is now me thereof ⅛⅜ «¥» -bees used by ¾⅝ as a 'residence or business homestead, or for homestead purposes, and that neither said property nor any part thereof is now a - me home or place of business or claimed by -as as a residence or business homestead, or for residence or business homestead purposes.
"HI.
I
“That ⅝⅜¾-have a home and designated homestead and now reside in the following described property to-wit: 27-½ acres, more or less, out of the A. H. Osborne Survey, Harris County, Texas, located on the Katy Road about 8 miles Northwesterly .from the City of Houston, being the land upon which I have my nursery stock and being the same land purchased by me and described in deed from August Neuen of Harris County, Texas; that the last named
I
property is the only real estate in which ⅞⅞-claim a right of homestead or of exemption under the laws of the State of Texas; that I
¾⅞-have no intention of using the property first above described or any part or parts thereof in any way whatsoever ’for business or residence homestead purposes and hereby solemnly renounce all homestead and exemption rights thereto.
I
“Wo make this affidavit and sworn representation with the full knowledge that 'The First National Bank of Houston, Houston, Texas, Trustee, will ’advance certain sums me tots in the form of a loan, the payment of which is to be secured by a lien on the property first hereinabove described and it my is ⅜⅞?- purpose and plan that the payment of .me my said money shall be made to ¾⅜- for ⅞⅛? account by said bank on faith in the truth of the statements and representations herein made.
“Mary Burkhardt
“Otto Burkhardt
“Sworn To And Subscribed Before me, the undersigned authority, this the 25th day of March, A. D. 1932.
“K. E. Wright
“Notary Public in and for “[Seal.] Harris County, Texas.
• “Sworn To And Subscribed Before me,' the undersigned authority, by Otto Burk-hardt, who makes oath to the above in substance and in fact, this 5th day of August, A. D, 1933.
“[Seal.] K. E. Wright
“Notary Public in and for Harris County, Texas.”