Legal Opinion

Heidenheimer Bros. v. Stewart

Texas Supreme Court

Decided January 22, 1886No. Case No. 2134PublishedCited by 43 opinions

Appeal from Payette. Tried below before the Hon. R. H. Phelps, special judge. Heidenheimer Bros., as indorsees of one Alexander, brought tbia suit in the district court of Payette county, against Dennis Stewart, to recover amount due on a negotiable promissory note executed by the latter, and to foreclose a lien on a certain tract of land in that county, retained, as security for the note, in a deed from Alexander to Stewart for the land.

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Appeal from Payette. Tried below before the Hon. R. H. Phelps, special judge. Heidenheimer Bros., as indorsees of one Alexander, brought tbia suit in the district court of Payette county, against Dennis Stewart, to recover amount due on a negotiable promissory note executed by the latter, and to foreclose a lien on a certain tract of land in that county, retained, as security for the note, in a deed from Alexander to Stewart for the land. Pending the suit, Cary Ann Stewart was made a party defendant. Dennis Stewart and Cary Ann Stewart are husband and wife, and had been such for some time…

1Opinion of the Court

Robertson, Associate Justice.

The equities between the original parties to a mortgage cannot avail a mortgagor in a suit on the secured negotiable note to foreclose the mortgage (Jones on Mortgages, sec. 834; Hilliard on Mortgages, 572), even if it results in the encumbrance of the homestead, if those entitled to the exemption have caused this result by their own deliberate fraud. Hurt v. Cooper, 63 Tex. 362. If the owners of the homestead simulate a transaction, in which a negotiable note would be secured by a valid and meritorious lien on the exempt estate, and their artifice succeeds in…

2Cases cited2 opinions

  1. Hurt v. CooperTexas Supreme Court · 1885
  2. Gaston & Thomas v. DashiellTexas Supreme Court · 1881

3Cited by43 opinions

  1. Paris Grocer Co. v. W.H. BurksTexas Supreme Court · 1907
  2. Love v. BreedloveCourt of Appeals of Texas · 1890
  3. National Bond & Mortgage Corp. v. DavisTexas Commission of Appeals · 1933
  4. Graves v. KinneyTexas Supreme Court · 1902
  5. Ramirez v. BellCourt of Appeals of Texas · 1927

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