US SUPREME COURT DECISIONS

1. Where a party, on receiving an absolute deed, covenants with his grantor to reconvey the lands when the money which it was given to secure shall be paid, both instruments must be taken together as constituting a mortgage.

2. The mortgagee of a homestead in Texas cannot maintain ejectment therefor if the "forced sale" thereof be prohibited by the constitution of the state which was in force at the date of the mortgage.

APPEAL from the Circuit Court of the United States for the Western District of Texas.

This was a suit in equity by James E. Sears and Clara Sears, against Samuel J. Lanahan.

The case made by the bill is, in substance:

The complainants were married in November, 1869, and thereafter lived, and still live, in Texas, said James since his marriage having been, under the constitution and laws of that state, the head a family. In May, 1870, they purchased certain improved lots in Waco, Texas, and he thereupon took possession of them, and has, as the head of a family, and with his wife, ever since occupied them as their homestead. He was engaged in business, and became indebted to the firm of Lanahan & Son, of Baltimore, to whom he gave his promissory notes, aggregating $7,858.19. They were not paid, and the firm pressing for payment or security, he and wife, to obtain time and to prevent legal proceedings, made, May 2, 1873, an absolute deed -- which was duly acknowledged and recorded -- of the lots to one Robertson, agent of the firm. Though made to him, it was really for the benefit of the firm, and there was executed and delivered contemporaneously therewith a writing by him, which sets forth that the deed was made for the purpose of securing the notes.

Notwithstanding the deed, the complainants continued to occupy the homestead. It was subsequently conveyed, without consideration, by Robertson to one Fort, who conveyed it in the same way to Samuel J. Lanahan, a member of the firm. He holds the same for its benefit, and, the notes being due and unpaid, brought ejectment Dec. 20, 1875, in the court chanrobles.com-redchanrobles.com-red

Page 102 U. S. 319

below to try the title to and recover the possession of the lots, making only said James a party defendant.

The bill avers that the deed of May 2, 1873, and accompanying agreement constitute a mortgage upon the homestead which cannot be judicially enforced, and that if the judgment be recovered, the complainant Clara will be wrongly deprived of her homestead. An injunction is prayed for restraining Lanahan from the further prosecution of his suit.

The defendant's demurrer to the bill having been overruled and he declining to answer, the court decreed in favor of the complainants.

The defendant then appealed here.

Art. 12, sec. 15, of the Constitution of Texas of 1868 is as follows:

"The legislature shall have power, and it shall be their duty, to protect by law from forced sale a certain portion of the property of all heads of families. The homestead of a family not to exceed two hundred acres of land (not included in a city, town, or village), or any city, town, or village lot or lots not to exceed five thousand dollars in value at the time of their destination as a homestead, and without reference to the value of any improvements thereon, shall not be subject to forced sale for debts except they be for the purchase thereof, for the taxes assessed thereon, or for labor and materials expended thereon, nor shall the owner, if a married man, be at liberty to alienate the same unless by the consent of the wife and in such manner as may be prescribed by law. "

Page 102 U. S. 321