43 S.W. 554
LYNN et al. 
v. 
SIMS et al.
Court of Civil Appeals of Texas.
December 4, 1897.
        Appeal from district court, Freestone county; L. B. Cobb, Judge.
        Trespass to try title by J. H. Sims and another against Josie Lynn and others. From a
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judgment for plaintiffs, the defendants appeal. Affirmed.
        W. R. Boyd, for appellants.
        FINLEY, C. J.
        This is an action of trespass to try title to 66¾ acres of land, a part of the John Lawrence survey, 
situated in Freestone county, Tex., brought to the February term, 1897, of the district court of Freestone 
county, by appellees, J. H. Sims and F. F. Sims, composing the firm of J. H. Sims & Co., against Josie 
Lynn, Caroline Lynn (Cyrus) and James and Joseph Lynn, said James and Joseph Lynn being minors, 
without a legally appointed guardian. The defendants Josie Lynn and Caroline Cyrus answered, first, by 
general exception; and defendant Caroline Lynn also filed her plea in abatement, setting up her marriage 
with one Joe Cyrus. Plaintiffs thereupon amended their original petition, making Joe Cyrus a party 
defendant, and prayed judgment for five-sixths of the land in controversy, and for partition. Josie Lynn 
and Caroline Cyrus answered, specially, that the property sued for was the community homestead of 
defendant Josie Lynn and her deceased husband, James Lynn, Sr., who died about January 9, 1885; that 
about August 24, 1892, one Sam Wallace, the agent of J. H. Oliver, a merchant, called at their home, and 
fraudulently induced defendants and others, children of defendant Josie Lynn, to execute to said J. H. 
Oliver a deed of conveyance to their said homestead, for a consideration of $96.91, same being a debt 
due J. H. Oliver for goods, wares, and merchandise purchased by one Henry Lynn, adult son of defendant 
Josie Lynn, said Wallace, agent of said Oliver, stating at the time to defendants, and other children of 
defendant Josie Lynn, that said Henry Lynn had executed a chattel mortgage to said Oliver upon certain 
personal property not owned by said Henry Lynn, and that, unless defendant Josie and her children did 
execute a deed to their homestead to secure said Oliver in the payment of the said debt of $96.91, said 
Henry Lynn would be prosecuted and sent to the penitentiary; that, in order to save said Henry from 
prosecution, said Josie Lynn and her children executed to said J. H. Oliver an instrument in form a deed to 
the land in controversy; that it was fully agreed and understood by all parties then concerned that this 
instrument was only a mortgage to secure said $96.91, and that said Oliver would reconvey their said 
homestead upon payment of same; that defendant Josie Lynn and her said children, Caroline, James, and 
Joseph Lynn, who were at the time of the execution of said deed to Oliver minors, had continuously 
occupied said premises as their homestead since the death of said James Lynn, and said Josie, James, and 
Joseph are now in possession of same, claiming it as their homestead; that plaintiffs, J. H. Sims & Co., 
purchased said land from Oliver with full notice of all the facts, and with actual notice that the deed to 
Oliver was only intended as a mortgage, and with the understanding that they (plaintiffs) would pay off 
the $96.91 due Oliver by Henry Lynn, and $50 due Oliver by one Bob Henderson, a son-in-law of 
defendant Josie Lynn, and that plaintiffs should have the control and management of the rents from said 
premises, and should apply the rents collected by them annually until they were paid or reimbursed in full, 
at which time plaintiffs were to reconvey said premises to defendants; that plaintiffs had had the control 
and management and had collected rents from the premises during the years 1893, 1894, 1895, and 
1896, and had collected an amount largely in excess of the debt due them. Defendants prayed that the 
deeds to Oliver and Sims & Co. be canceled, and for costs. W. R. Boyd was appointed guardian ad litem 
for the minors James and Joseph Lynn, and qualified by giving the required bond and taking the oath as 
prescribed by law; and thereupon, on February 9, 1897, filed his answer for the minor defendants, in all 
things adopting the answer of defendants Josie and Caroline. Defendant Joe Cyrus also answered, 
adopting the answer of his wife, Caroline, and defendant Josie Lynn. On February 10, 1897, the cause 
came on for trial, a jury was waived, and the cause submitted to the court, who, after hearing the cause, 
on February 10, 1897, rendered its judgment for plaintiffs, J. H. Sims & Co., for nine-twelfths of the land, 
and in favor of defendants Caroline Cyrus and James and Joseph Lynn one-twelfth each, or three-twelfths, 
of the land in controversy, and for partition, appointing commissioners to divide the land in accordance 
with the judgment of the court; to which judgment of the court the defendant Josie Lynn, by her attorney, 
and the minor defendants, James and Joseph Lynn, by their guardian ad litem, W. R. Boyd, excepted in 
open court, gave notice of appeal, and have duly perfected the same to this court. Upon request of 
defendant Josie Lynn and W. R. Boyd, guardian ad litem for the minors James and Joseph Lynn, the court 
filed its conclusions of law and fact in this case. The conclusions of the trial judge are as follows:
Conclusions of Fact.
        "(1) The property in controversy was the homestead of defendant Josie Lynn and her deceased 
husband, James Lynn, at the time of his death, and was their community estate. At the date of the 
conveyance to J. H. Oliver, said property was occupied by said Josie and her children, they being also the 
children of her said husband, and was the homestead of said Josie and children, some of whom were 
minors.
        "(2) The conveyance to Oliver was intended by the parties not as a deed, but as a mortgage to 
secure a debt of about $96 due by Henry Lynn, one of the grantors, an adult son of said Josie, to Oliver, 
and at the time
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of the conveyance it was agreed between the parties that Oliver should reconvey to defendants upon the 
payment of said debt.
        "(3) The plaintiffs, at the time they purchased from Oliver, knew that Oliver did not pay money for 
the land, and that he gave therefor only the said debt due him by Henry Lynn. Plaintiffs also knew that the 
property was the homestead of defendants before they conveyed to Oliver.
        "(4) The defendant Josie and her children were occupying the land as tenants of Oliver at the time 
plaintiffs purchased.
        "(5) Plaintiffs did not have notice of the parol agreement of Oliver to reconvey the land to 
defendants before they (plaintiffs) purchased the land.
        "(6) Plaintiffs paid Oliver $150 cash for the land, and acquired three-fourths interest in the land, 
which interest was worth about $200.
        "(7) The defendant Caroline Cyrus was a minor when the deed was made to Oliver, and she, being 
one of six children of her parents, is the owner of one-twelfth interest in the land. The minor defendants 
Joseph and James each own one-twelfth, and the plaintiffs own nine-twelfths, interest in said land."
Conclusions of Law.
        "(1) A deed absolute on its face may be shown by parol to be a mortgage by proof to the effect that 
the instrument was intended merely to secure a debt. In such case the onus is on the party asserting such 
parol condition. Such parol condition is of no force as to an innocent purchaser for value, without notice of 
the parol agreement.
        "(2) It is immaterial that the debt secured by the deed in this case was not the debt of the grantors 
in the deed, and that plaintiffs knew such fact, plaintiffs having no knowledge or notice of the facts that 
converted said deed into a mortgage.
        "(3) Plaintiffs are entitled to partition as against the defendants Caroline, James, and Joseph, and 
there is no homestead right remaining in defendants."
        There is no statement of facts in the record. We are of opinion that the legal conclusion reached by 
the trial judge upon the facts found by him, and the judgment rendered thereon, are correct. Eylar v. 
Eylar, 60 Tex. 315. Judgment affirmed.