54 Tex. 226 | Tex. | 1881
This suit was instituted December 26, 1877, by L. G. Vollbaum, for himself, and as next friend for a minor brother and sister, Charles and Dinah, also as next friend for his mother, Dinah Vollbaum, Sr., alleged to be non compos mentis, to enjoin defendant, Abrahams, from proceeding to have sold, under a certain deed of trust, an undivided half of a certain five hundred acre tract of land, alleged to include the homestead of the plaintiffs. As developed in the pléading and evidence, the facts are: That in October, 1872, A. W. Vollbaum died, leaving his wife, Dinah, and his children, L. G., Charles, Dinah and Wm. H., occupying what is known as" the Worroll place, in which he owned only an estate for the fife of one Collins. Sometime in 1872, A. W. Vollbaum had purchased of defendant, Abrahams, a tract of five hundred acres, known as the Champin Priestly place, adjoining the Worroll place, paid part of the purchase money, commenced to improve and cultivate it, and Sifter his death it was possessed and cultivated by his family. Collins died and the fife estate terminated in 1876.
The case was tried without a jury, and the 'court having overruled a plea in abatement and a general demurrer, rendered judgment decreeing to plaintiffs a homestead of two hundred acres out of the five hundred acres, “to be laid off in such shape as plaintiffs may elect,” and perpetually enjoined defendants from interfering therewith.
One of the points-fairly presented by the assignment of errors and by the brief of appellant is, that the court erred in overruling the plea in abatement and in proceeding without Wm. H. Vollbaum. having been made a party. The sale enjoined was about to be made under a deed of trust executed by Wm. H. Vollbaum, and to pay his alleged indebtedness. He was certainly directly interested in the subject-matter of the suit, and should have been made a party. The objection having been made, it was error in the court to overrule it, and that error being fairly presented, must lead to a reversal of the judgment.
It was also objected below that L. G-. Vollbaum had no right to sue as next friend for his mother and minor brother and sister. At the time this suit was instituted and tried, the proper procedure was to apply to the court to appoint a special guardian, and it was error in the court to allow the suit to proceed in the name of a next friend. The Eevised Statutes have omitted this requirement.
Appellant objected to the admission of oral evidence . that Dinah Vollbaum, Sr., was non compos mentis. Al
As there is error which requires a reversal of the judgment, we abstain from any comment on the sufficiency of the evidence to establish the homestead claimed. The principles or rules of law controlling the question have been so often and so fully laid down, that it is only necessary to refer to some of the cases, in which this has been done. Anderson v. McKay, 30 Tex., 186; Moreland v. Barnhardt, 44 Tex., 275.
On another trial it may be hoped that the facts will be more fully developed.
ISTo question has been presented as to the validity of the execution sale of Dinah Vollbaum’s community interest in the land in excess of the homestead claimed. The record nowhere shows the amount of the indebtedness of the estate which led to an administration and a suit against the surviving widow, resulting apparently in the sacrifice of her community interest, but not to the benefit of the estate. As the facts may be imperfectly presented, ■ and the parties are not before us, we abstain from comment. We remark that the brief of counsel for appellees contains statements not supported by the record, and does not otherwise comply with the rules.
The judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered February 2, 1881.]