Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 393
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1884.] CARTER V. HAWKINS. 393
Statement of the case.
N. J. CARTER, Ex'x, V. S. AM. HAWKINS ET AL.
(Case No. 1753.)
1. HOMESTEAD.--Where the evidence shows that the mortgaged property had'
been abandoned as a homestead by the mortgagor, and that he had established
his home elsewhere, the homestead right is gone.
2. NOTICE-- MORTGAGE - INNOCENT PURCHASER - DESCRIPTION.- If A mortgages
to B a lot of land, describing it thus: "The east half of lot 20, in
Greenville, it being the west half of said lot 20," it would leave a doubt as
to which half he intended to convey, and a subsequent purchaser could not,.
under such a state of facts, claim as a bona fide purchaser of the east half,
and say that by such a description the vendor intended to convey the west
half.
8. SAME.- The general rule is, that where the discrepancy as to the property intended
to be mortgaged, and that actually described in the recorded instrument,
is of a substantial nature, the record will not operate as notice to,
subsequent purchasers; but where the description is ambiguous, or inconsistent
one part with another, the first declaring that the land mortgaged
is that which the purchaser proposes to Jbuy, and then giving such particulars
as to boundaries as would place it upon a different tract, in such case
the inconsistency in the description would, affect with notice one desiring
to purchase.
4. SAME. - If a purchaser have any knowledge of an error in the description of'
the property mortgaged, or from his knowledge of the property is able to,
interpret the record, giving it the meaning intended to be conveyed, it would
be sufficient to charge him with notice. Citing Wade on Notice, § 185;
Erickson v. Rafferty, 79 Ill., 209.
APPEAL from Hunt. Tried below before the Hon. T. D. Montrose,
Special Judge.
On the 14th day of January, 1880, S. M. Hawkins executed his
note for $175 to C. B. Carter, appellant's testator, and on the same
day, to secure the payment of the note, he executed to C. B. Carter
a mortgage on land containing the following description and field
notes, to wit: "The east half of a tract of land in the town of
Greenville, bought by me from A. D. Robey. Beginning at the N.
E. corner of E. W. Terhune's lot; thence W. 108 feet; thence S. 71
feet; thence E. 108 feet to the beginning." The mortgage was
filed for record March 11, 1880, and recorded March 13, 1880.
It was claimed and proved that there was a mistake in the field
notes contained in the mortgage; that one call was omitted, to wit:
" Thence' N. 71 feet." They should have been as follows: "Beginning
at the N. E. corner of E. W. Terhune's lot; thence N. 71 feet;
thence W. 108 feet; thence S. 71 feet; thence E. 108 feet to the
beginning." On the 12th day of January, 1881, nearly twelve
months after the mortgage had been placed upon record, S. M.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28512/m1/415/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .