MOORE v. CHAMBERLAIN, 195 S.W. 1135

YANTIS, J. This suit was instituted in trespass to try title in the district court of Tarrant county, Tex., April 10, 1908, by Hester E. Chamberlain, the widow of William Chamberlain, who died July 11, 1895. The case was submitted to a jury on special issues. Upon the findings of the jury the district court entered a judgment in favor of Mrs. Chamberlain for the land, which consisted of 106 acres, situated in Tarrant county, Tex. The district court also, in the same suit, rendered a judgment in favor of Worth Moore, the plaintiff in error, for the recovery from Mrs.

Chamberlain, defendant in error, of the sum of $2,578.78, with interest and attorney’s fees, with the foreclosure of a vendor’s lien which was established by the judgment of the court on said land in favor of the plaintiff in error to secure the payment of said sum. The vendor’s lien which ivas given to secure the payment of the notes was valid, because the purchaser was an innocent purchaser, though it be granted that the sale under the trust deed was void because the purchaser had notice that the Chamberlain and Carson deeds were intended as mortgages. Hurt v. Cooper, 63 Tex. 366.

Worth Moore was the- owner of the $1,600 vendor’s lien note, and, being an innocent purchaser before maturity of the $1,500 note, of which this note ivas a renewal, still had the legal right to a foreclosure of the lien to enforce the payment of the note, together with the interest and attorney’s fees. The effect of the defendant in error’s supplemental petition, which was filed November 26, 1909, and in which a tender of payment and right to a foreclosure was made, was to concede this. It was upon this tender that the trial court rendered the personal judgment in favor of Moore, with a foreclosure.

The judgment of the district court was appealed from by Worth Moore, the plaintiff in error. It was decided by the Second Court of Civil Appeals adversely to him. The case was brought to this court on petition of Worth Moore for a writ of error, which was granted. The findings of the jury established that the land in controversy was the homestead of William Chamberlain and his wife, Hester B. Chamberlain, at the time it was mortgaged by them, as herein related. With the assistance of B. IC Carson, they borrowed $1,500, and mortgaged the homestead to secure its payment, but Mrs.

Lou Sue Moore, the guardian of Worth Moore, who was then a minor, and who furnished the $1,500, was not aware that she was making a loan of the money, as she was made to believe that she was purchasing a vendor’s lien note, and not loaning money. In order to secure the money Chamberlain and wife executed, on December 20, 1892, an absolute warranty deed to B. K. Carson, and recited in the deed a cash payment by Carson of $3,000, and the execution and delivery by Carson to them of his promissory note for $1,500, payable in 12 months after date to the order of said William Chamberlain.

A vendor’s lien on the land was retained to secure the payment of the note. Mrs. Lou Sue Moore, as guardian for Worth Moore, purchased this note as an innocent purchaser before maturity, for which she paid $1,500. She had no notice that the deed was in fact intended to be a mortgage. It was established by the findings of the jury, however, that no cash was in fact paid by Carson to the Chamberlains, and that the deed was not intended for an absolute deed of conveyance, but was only intended to be a mortgage.

When the $1,500 note matured, the Chamberlains desired its extension, so they induced Carson to sell the land, which he did, to one Trammell. On February 3, 1894, Carson conveyed the land to Tram-mell by a warranty deed absolute upon its face, which recited a cash consideration paid by Trammell to Carson of $3,000, and a vendor’s lien note executed and delivered by Trammell to Carson for the sum of $1,600, payable one year from date. This note was also indorsed by Chamberlain. No cash was in fact paid. The note was sold by Carson to Mrs.

Lou Sue Moore, who purchased as guardian for her ward, still a minor, Worth Moore. She paid for the note by accepting it in lieu and in satisfaction of the $1,500 note which had been executed by Carson. It was merely 'a renewal of this note. At the time the $1,600 vendor’s lien note was executed by Trammell, payable to Carson, Tram-mell, also executed a deed of trust as additional security for the payment of said $1,-600 note.

The trust deed provided that upon failure to pay said note the trustee, Luckett, was authorized to sell the land to the highest bidder, after giving notice of such sale “as required in judicial sales,” and to apply the proceeds of sale to the payment of the note. On May 6, 1902, Luckett, as trustee, sold the land to said Worth Moore, who was the highest bidder at the prablic sale under said deed of trust, and who paid the amount of his bid, $1,500, by crediting same on the $1,600 note of which he was the owner.

Luckett, as trustee, conveyed by deed the land in question on May 7, 1902, to Worth Moore as the purchaser at said sale. The notice which was given by the trustee was by posting it in three public places in Tarrant county. Notice of the sale was not advertised in a newspaper. It is claimed by the plaintiff in error that the suit as tried was not one in trespass to try title, but was an equity suit to cancel the deed, to Worth Moore, plaintiff in error, and that, being such a suit, it was barred by the four-year statute of limitations.

We do not think the supplemental petition presented a new cause of action, or that it constituted an action in equity to cancel the deed from Luckett to Moore. The effect of the supplemental petition was merely to tender payment of the $1,600 note, interest and attorney’s fees, with a foreclosure of the vendor’s lien carried by said note. There was no abandonment of the petition in trespass to try title, under whose allegations proof was'admissible to show that the land was the Chamberlain homestead, when Moore purchased it with notice of the homestead rights.

If the deed to the plaintiff in error which was made by the trustee, Luckett, was void, it could be attacked and proven to be void under the ordinary allegations of a suit in trespass to try title, such as were made in the original petition which was filed April 10, 1906. If, therefore, the deed to the plaintiff in error from Luckett was Void, there was no necessity for an equity suit to set the deed aside and allow a recovery by Mrs. Chamberlain on her petition in trespass to try title. . She was entitled to recover in trespass to try title by proving the deed to the plaintiff in error, Moore, to be void.

Not being an equity suit to cancel the deed, but a land suit in fact, the four-year statute of limitations would not be applicable, and could not be relied upon by the plaintiff in error in bar of the defendant in error’s suit for the land. In a suit for the land where no equity suit is necessary to set aside a deed as a condition precedent to a recovery of the land, the general statutes of limitation which apply to suits for the recovery of real estate apply, and the four-year statute of limitations does not apply.

We are of the opinion that the deed of conveyance by tbe trustee, Luekett, to tbe plaintiff in error, Moore, was void, and not voidable. When tbe plaintiff in error purchased tbe land from tbe trustee, it was in possession of tbe tenants of tbe Chamberlains. This placed him upon inquiry, as a matter of law, as to whether tbe deed from tbe Chamberlains to Carson and from Carson to Trammell were absolute, or were intended only as mortgages.

There being no finding that be exercised any diligence by making inquiry, tbe possession of tbe tenants constituted actual notice to him that tbe deeds were intended as mortgages. Ramirez v. Smith, 94 Tex. 191, 59 S. W. 258; Collum v. Sanger Bros., 98 Tex. 162, 82 S. W. 459, 83 S. W. 184. Under tbe provisions of tbe Constitution a mortgage as between tbe parties to it and as to others not innocent purchasers upon a homestead is void, and not voidable. Const. § 50, art. 16.

The deed, therefore, under which the plaintiff in error claims title was void, and, being so, tbe defendant in error was entitled to recover, unless tbe plaintiff in error’s contention that she was barred by tbe four-year statute of limitations should be sustained. This contention is overruled, as tbe suit was one for tbe recovery of tbe land, and not one in equity for cancellation of tbe plaintiff in error’s deed.

Finding no error, the judgments of tbe district court and the Court of Civil Appeals should in all things be affirmed; and it is so ordered. itnreFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes