Under the disposition of the appeal determined upon, no opinion is required of this court in this cause, but, in deference to the aid both parties through their able counsel have given the court in deciding it, the general ground for the holding affirming the judgment of the court below is thus stated:
Under the unattacked findings made below it undisputedly appears that plaintiff in error borrowed $300 from defendant in error to be repaid one year thereafter, and to secure such payment contemporaneously further agreed to give the defendant in error a first mortgage lien on certain property in Cottage Grove addition in the city of Houston; that the defendant in error advanced him the money before getting such mortgage, and that thereafter plaintiff in error failed and refused to give such a mortgage, it further appearing that he had, at the time of making the agreement to do it, been in no position to deliver a first lien upon the property because of its having been affected with a homestead character.
In these circumstances the learned trial court was right in giving the defendant in error a judgment against him for the immediate return of the money. 41 Corpus Juris, page 4; Binion v. Browning, 26 Mo. 270; Merryfield v. Willson, 14 Tex. 224, 65 Am.Dec. 117.
An affirmance will accordingly be ordered.
Affirmed.