#### LLOYD v. CHRISTIAN.

No. 9769.

Court of Civil Appeals of Texas. Galveston.

Oct. 28, 1932.

*198L. A. Kottwitz and A. B. Wilson, both of Houston, for appellant.

GRAVES, J.

In this cause appellant, D. C. Lloyd, challenges a judgment of the court below against himself and his mother, Mrs. N. E. Lloyd, in favor of the appellee for the cancellation of a deed from the mother to the son for four 40-acre tracts of land in Harris county, dated November 26, 1929, upon a finding that the conveyance had been made with a view and intent to hinder, delay, and defraud the grantor’s creditors — a money recovery in the sum of $2,420.45 against Mrs. Lloyd alone upon her unsecured individual note to the appellee having been also awarded, and an attachment writ against the land having been sued out pending the trial.

Trial was before the court without a jury; findings of fact and law were filed, in which it was recited that the conveyance of the land, aggregating 160 acres, had been made for the stated consideration of $20,010, of which $10 was to be in cash, the remaining $20,000 being evidenced by a promissory note from the son to his mother, due two years after date; that the conveyance was a violation of the statute, R. S. article 3996, for the reason already stated, Mrs. Lloyd being insolvent at the time, having no other property in the state sufficient to pay her debts, owing the appellee the debt sued upon, as well as other parties at the time, which facts the appellant then knew; that no part of the $20,000 note had ever been paid, nor any ability upon the maker’s part to pay it within the two years being shown, and, further, that both in 1919 and 1929 Mrs. Lloyd had signed and acknowledged, in connection with loans upon the same property from the Federal Land Bank and the Farm Loan Association in Pasadena, Tex., statements to the effect that the land so conveyed to her son did not on those dates constitute her homestead, the latter of these declarations having been made only a few days before the institution of this suit.

To these summarized findings there were added conclusions of law, finding Mrs. LLoyd to be indebted to the appellee in the amount of the money recovery stated, together with these two concluding paragraphs:

> “The court further finds as a Conclusion of Law that the conveyance of Mrs. N. E. Lloyd to D. C. Lloyd was fraudulent and made with the view and intent to hinder, delay and defraud her creditors and among others this Plaintiff and for said reason should be cancelled, set aside, declared void and held for naught.

> “The court further finds as a Conclusion of Law that at the date of the institution of this suit, tracts No. 96, 97, 98 and 99, as set forth in the Findings of Fact herein, did not constitute the homestead of Mrs. N. E. Lloyd.”

On the appeal the judgment so rendered, as well as the findings of both fact and law upon which it had been grounded, are attacked on the ground that they were without evidence to support them, in that the undisputed testimony shows that the property thereby conveyed at the date of the deed constituted the homestead of Mrs. Lloyd and her family, by reason of which she had the right to so convey it, and that the transaction in the circumstances could not be deemed fraudulent in law.

After a careful examination of the record, we conclude this position must be sustained.

The four tracts of land were not in a town or city, being located nearby but not in the small village of Alief in Harris county, were contiguous, were alleged to constitute the homestead, within the meaning of R. S. articles 3832, 3833, of Mrs. Lloyd and her family, which at the date of the conveyance in question consisted of herself (she being a widow) and one minor child, and the undisputed proof conclusively showed that they had all been used, occupied, cultivated, and enjoyed as such homestead continuously for 20 years or more prior to and at the time of her deed, with the exception of about one year along about 1919 or 1920, when Mrs. Lloyd temporarily sojourned in the city of Houston for the purpose of having her children attend school there; indeed, the evidence is so conclusive and overwhelming to this effect that it is not deemed essential that it be even summarized here, neighbors, old friends, and other witnesses, who had direct and personal knowledge of such facts, appearing and fully testifying to them.

It seems the finding of fact to the contrary, there being no other support of it, was grounded upon the previously-mentioned recitation in the deeds of trust from Mrs. *199Lloyd to tie Federal Land Bank and tie Farm Loan Association in Pasadena to tie effect tiat tiis land iad not constituted her iomestead in tie years 1919 and 1929; aside from tie fact tiat tie agent of tiese institutions who negotiated and. acted for tiem in tiese transactions with Mrs. Uoyd undis-putedly testified on tiis trial tiat sie at tie time neitier read tie instruments nor was told tiat suci statements were in tiem, iaving merely taken iis word' for wiat tiey were wien sie executed tiem, suci declarations siould neitier iave been considered by tie court at all, nor given any force in determining wietier or not 'tie property constituted tie family iomestead, in tie face of its actual use at tiat very time and long prior tiereto for suci purpose, since, by tie long-settled rule of law in tiis state, tiey could not ciange tie iomestead ciaracter tiereby fastened upon it. Medlenka v. Downing, 59 Tex. 32-39; Jacobs, Bernheim & Co. v. Hawkins, 63 Tex. 1, 2; Ruhl v. Kauffman & Runge, 65 Tex. 723-734; Radford & Wood v. Lyon, 65 Tex. 471-475; Equitable Mortgage Co. v. Norton, 71 Tex. 683-689, 10 S. W. 301; Texas Land & Loan Co. v. Blalock, 76 Tex. 85-89, 13 S. W. 12; Bayless v. Guthrie (Tex. Com. App.) 235 S. W. 843-846; Wooten v. Jones (Tex. Civ. App.) 286 S. W. 680-687.

Wiat migit be tie effect of tiose recitations in a direct action on tie contracts containing tiem between Mrs. Lloyd and tiose federal organizations is, of course, not iere involved.

As between these litigants, under the uncontroverted and conclusive proof tiat sie was then not only tie head of a family within tie purview of both our fundamental and statutory law, but also in actual occupancy and use of tie property as the iomestead thereof, its exemption to tiem was complete, hence the appellee, as a mere unsecured creditor, could acquire no right against it, and its voluntary sale could in no sense constitute a fraud upon ier. Cox v. Shropshire, 25 Tex. 113; Conner v. Hawkins, 66 Tex. 639, 2 S. W. 520; Hargadene v. Whitfield, 71 Tex. 482, 9 S. W. 475; Zapp v. Strohmeyer, 75 Tex; 638, 13 S. W. 9; Speer & Goodnight v. Sykes, 102 Tex. 451, 119 S. W. 86, 132 Am. St. Rep. 896; Uvalde Paving Co. v. Kennedy (Tex. Civ. App.) 22 S.W.(2d) 1091.

Neitier, in tie light of other evidence, do tie deed itself, which also conveyed six unincumbered lots of the aggregate value of $150, in addition to tie 160-acre homestead, and tie $20,000 negotiable promissory note given as the consideration thereof intrinsically constitute any evidence of fraud, nor of an intent to perpetrate it; tie appel-lee and Mrs. Lloyd’s daughter, to tie latter of whom she owed some $7,500 were ier only unsecured creditors; a group of secured creditors, including tie federal loan concerns referred to, tie First National Bank of Houston, and others, held liens against tie iome-stead tracts amounting to only about $365 less than tie full value of all tie land conveyed, and this total incumbrance was to be deducted from tie amount of tie note.

It was, in tiese circumstances, under the equally well-settled rule with us, tie absolute right of tie mother to convey all of ier property (inclusive of tie homestead and tie lots) to tie son, accept iis negotiable promissory note in payment therefor, and to assign and deliver it to ier daughter in cancellation of ier indebtedness to tie latter, even if that did constitute a preference of tie daughter over tie appellee, there being further no evidence of any probative force either that tie mother as suci grantor intended in so making tie conveyance to hinder, delay, or defraud ier creditors, or that tie son in accepting it, knew of such an intent, or siould have known of it as he was then circumstanced, iad he made a reasonable investigation. Lewy v. Fischl, 65 Tex. 311; Ellis v. Valentine, 65 Tex. 532; Tillman v. Heller, 78 Tex. 597, 14 S. W. 700, 11 L. R. A. 628, 22 Am. St. Rep. 77; LePage v. Slade, 79 Tex. 473, 15 S. W. 496; Cross v. McKinley, 81 Tex. 332, 16 S. W. 1023; Sanger Bros. v. Colbert, 84 Tex. 668, 19 S. W. 863; Adams v. Williams, 112 Tex. 469, 248 S. W. 673; Wiliams et al. v. Laird (Tex. Civ. App.) 32 S. W.(2d) 502; Ford v. Honse (Tex. Civ. App.) 225 S. W. 860.

Further discussion is deemed unnecessary, since tiese conclusions determine tie merits of the appeal; tiey require tiat tie judgment be reversed, and the cause here rendered in appellant’s favor. It will be so ordered.

Reversed and rendered.