Battle v. John, 49 Tex. 202

49 Tex. 202 | Tex. | 1878

Moore, Associate Justice.

This suit was brought by the appellant, Mrs. Martha S. Battle, against her husband, O. L. Battle, (who refused joining her in the action,) and the other appellees, N. N. John and H. H. Sears, to try title, and have partitioned and set apart to her in severalty, as her separate estate, two-sevenths of a tract of 2,500 acres of land, the whole of which said John and Sears claim to own, by purchase from the assignee of O. L. Battle, a bankrupt.

Appellant alleges, in her original and amended petitions, that the tract of land in question, when purchased by her said husband, contained 2,600 acres; that title to it was taken in his name, but that two-sevenths of the purchase-money paid for it was her separate estate; and that she thereby acquired a like interest in the land. It is further alleged, that appellant and her said husband went into possession of said land, and established thereon their homestead; that afterwards, to wit, in 1875, said O. L. Battle, her husband, was adjudicated a bankrupt, and scheduled the whole of said land as his property, but that 200 acres of the tract scheduled, being the homestead of said O. L. Battle and his family as aforesaid, was not administered in the Bankrupt Court, but reserved and set apart to him, by the Constitution and laws of this State, as a homestead; that no right or interest therein passed to or vested in his assignee; that only the interest of the bankrupt in the remainder of the tract, after segregating said homestead from it, was or could be legally sold by the assignee ; that said John and Sears purchased the land sold by said assignee with full notice of appellant’s interest in it, but that they had taken possession of the entire tract, though they had purchased merely the interest of said O. L. Battle, and refused to recognize appellant’s right, or to consent to partition the land with her.

The appellees, John and Sears, filed, in answer to the petition, a general demurrer and six special exceptions, all of which, except the last exception, were overruled. The sixth exception, sustained by the court below, is substantially as follows, to wit: That the petition shows that O. L. Battle is possessed in his own right in fee of 200 acres of the land originally purchased, together with valuable improvements made thereon; and it does not appear from the petition that said 200 acres are not of sufficient value to satisfy plaintiff’s claim in the entire tract originally purchased by her said husband, in which she claims to be interested, and that no reason is given why she does not seek to hold said 200 acres subject to, and in satisfaction for, her claim.

The case having been advanced and submitted for decision upon briefs and arguments, in conformity with the rules recently adopted by the court, it is only necessary for us to consider such of the questions presented by the briefs as will suffice for its proper determination.

All the propositions or specific grounds of error insisted upon by appellant’s counsel refer either to the third or sixth , assignments of error. The third error assigned is: “The court erred in sustaining said sixth special demurrer and exception to the original and two atnended petitions of plaintiffs, filed in said cause.” And the sixth exception is: “ The court erred in holding that she should set forth in her pleadings, that the said homestead is not of sufficient value to satisfy her interest in said land; and that she should set forth reasons why she does not seek to subject said homestead to her rights.” While these assignments present the ruling of the court, which is the matter of complaint in different phases, they substantially bring up for our consideration the same ground of error. So, likewise, the several propositions presented under them by appellant are rather conclusions from principles of law, or argumentative deductions from matters • of fact tending to show error in the ruling of the court, than specific errors or .propositions of law or fact, included in the general terms of the assignment under which they are ranged. When this is the case, the proposition, whether it refers to matter of law or fact, would find its more appropriate place, either in the argument or the statement, to show, that the proposed error relied upon is warranted by the record, and should lead to a reversal of the judgment. These remarks are not made as a critique upon the brief, but in the hope of simplifying the presentation of cases under the rules, and to indicate the obvious necessity, as well as advantage, of clear and definite statements of the points or propositions of error, whether in regard to matters of law or fact, relied upon for their reversal.

The propositions presented by appellant’s counsel, unquestionably, are embraced in the assignments of error relied upon for the reversal of the judgment; but all of them may, as we think, be comprehended by the single proposition, that the court erred in holding, as it did in effect, that appellees’ sixth special exception to the petition, although appellant may have been entitled to two-sevenths of the entire 2,600 acres of land, still she could not have a partition between herself and the defendants, John and Sears, without showing that the interest of her husband, O. L. Battle, in the 200 acres constituting their homestead is not of sufficient value to satisfy her claim in or to the entire original tract, and without seeking to have said 200 acres subjected to the satisfaction of her interest.

That the court erred in its ruling upon this exception, is, to our minds, so apparent as scarcely to admit of discussion. It is attempted to be sustained by counsel for appellees by an ingenuous and acute argument, supported by a citation of numerous authorities, which, it is claimed, maintain the propositions for which he contends. Our respect for his learning and ability, and the earnestness and evident confidence in their correctness with which he urged his view upon the court, have induced us to make a careful and thorough examination of all cases to which we have been referred. In the main, they announce, in general terms, the almost universally-recognized and well-approved doctrine, that a tenant in common cannot ordinarily enforce a partition of a part of a common estate, but must go for a partition of the entire estate, if he would divide any. (Wash, on Beal Prop., 428; Freem. on Co-tenancy and Part., sec. 508; Bigelow v. Littlefield, 52 Me., 25; Sutter v. San Frausisco, 36 Cal., 116; Hanson v. Willard, 12 Me., 145; Miller v. Miller, 13 Pick., 237; Gales v. Salmon, 35 Cal., 588.) An examination of the cases cited, shows that very many, if not a majority of them, lay down this general rule by way of answer to the claim of the purchaser from one tenant of a specific part of the land to have a partition of that part of the tract to which his deed refers. It by no means follows, however, that if the remaining tenants acquiesce in the sale by one of the co-tenants of his interest in a specific part of the tract, partition might not be had of such part, without making partition of the entire tract. Ho doubt the suit for partition should embrace the whole tract held by the co-tenants among whom it is to he divided, and all persons interested in its result must be made parties. Yet, unquestionably, those who do not wish to sever the relation are not required to do so because others wish to hold their portions of the land in severalty. (Freeman on Co-tenancy, sec. 508.) It would seem to follow, if some of the parties have no interest, either legal or equitable, by estoppel or otherwise, in a portion of the tract, they cannot object because partition is not sought of such portion, especially when all parties interested in the entire tract are before the court.

It is certainly unnecessary to controvert or deny the correctness of the principles announced in' any of the cases cited 'by appellee’s counsel; for, admitting the law to be correctly laid down in them, the difficulty which appellees have to encounter is that it is wholly inapplicable to this case. There is no tenancy in common between parties, to this suit in the homestead of appellant and her husband and the 2,500 acres she seeks to partition. In the last, the entire interest of the husband has passed to John and Sears; while in the homestead tract they have no interest whatever, either legal or equitable, vested or contingent, present or in future. To hold otherwise, would strike a fatal blow at the very basis of our homestead system, and the rights and immunities secured to families by it, as they have been defined and expounded in previous decisions of the court.

The homestead may be community property, or the separate estate of either husband or wife. So matter whether the land is owned in the one way or the other, its appropriation as a homestead will not change or affect its title, except in so far as this is necessary, in order to secure and give effect to the privileges and immunities guaranteed to the heads of families and surviving widows and children by the Constitution, and statutes upon the subject. (Willis v. Matthews, 46 Tex., 478.) It is of no moment to which of the spouses the homestead belonged, or whether they may be jointly or severally entitled to it, creditors have not, and can in no way, directly or indirectly, acquire, any interest in or to it by judicial or forced sale. But if the homestead of the family is upon a tract of land of more than two hundred acres, whether the tract is common property, or belongs exclusively to the husband, or to him and his wife as tenants in common, the interest of the husband in that part of it not included within the homestead may be sold for the satisfaction of Ms debts, either on execution, or by the Bankrupt Court; and such sale works no change upon the title or interest of the husband in the homestead. (Willis v. Matthews, 46 Tex., 478.) It is, however, unquestionably, otherwise as to that part of the tract sold. The husband’s interest in it is completely divested out of him, if, before he held in common with others, the purchaser becomes tenant in Ms stead; but he does not become a tenant in common in the homestead which has not been sold. There is no analogy between cases of this kind and the case of Bigelow v. Littlefield, 52 Me., 25, cited in support of the ruling of the court below on the exception. There, the purchaser paid a full and adequate price for the entire tract convoyed, and supposed he was buying the entire land. Here, the purchaser bought with knowledge of appellant’s interest, and is charged with knowledge, that however small may be the interest of the husband, the court cannot, either directly or indirectly, increase it out of the husband’s interest in the homestead. This evidently would not he the case, if the purchaser could require the wife, as the court has here done, to look to the interest of the husband in the homestead in lieu of her interest in the remainder of the tract. By doing so, the statute exempting the homestead from the payment of debt, is not only in effect repealed, but the purchaser gets the full value of the husband’s interest in it, though he has neither purchased nor paid for it.

The segregation of excess in the tract over and above the two hundred acres constituting the homestead, by its sale, as completely separated the original tract into two distinct parcels, as if they had never been united; and if the division line between them was marked and defined, it would be unnecessary, in a suit for partition of the land sold, to make any reference whatever to the title or ownership of the homestead tract.

The judgment is reversed and the cause remanded.

Reversed and remanded.