Chipman v. McKinney

41 Tex. 76 | Tex. | 1874

Moore, Associate Justice.

In the view we take of the leading question presented by the record in this case, it is unnecessary to determine whether a threatened sale of a homestead, under a trust deed which is not a valid charge upon the property at the date of the proposed sale, will be restrained by injunction on the application of the wife, without the husband being a party to the suit, though it appears from the petition that he refused to join therein.

The lots which the trustee advertised for sale are admitted to be the community property of appellant and her husband; and there is no pretense that they are the homestead, or were intended to be appropriated for this purpose, at the date of the execution by the husband of the trust deed under which it is alleged in the petition they were about being sold. Unquestionably, the property was at the date of the deed subject to alienation, or any bona fide disposition which the husband might see fit to make of it. Unless the bare fact that the lots subsequently improved, with the knowledge of the beneficiaries in the deed, in part with the separate funds of the wife, have since the execution of the trust deed been appropriated as a homestead, exempts the property from sale in payment of the debt secured by the deed, there is no equity in the petition, and the judgment of the court below dissolving the injunction must be affirmed. That this proposition must be answered in the affirmative, admits, we think, of no doubt. The constitution, subject to the qualifications therein stated, exempts from forced sale or alienation by the owner, if a married man, unless with the consent of the wife in such manner as may be prescribed by law, the homestead of the family. But it is sufficient for the disposition of this case for us to say, that as there is no pretense under the construction placed upon this section of the constitution, that this is a forced sale, and as the deed was executed in manner and form prescribed by law, appellant plainly fails to show that she is entitled to the protection of the court which she asks. And as it is now settled, a sale by the trustee'under a deed, such as alleged in the petition, to raise money secured upon a homestead, in the execution of which the wife has joined as prescribed by the statute, will pass the title of the homestead, it must also be held, as the deed here in question was executed as required by law, it also created a trust upon the property, by. which, in case of default, it is subject to sale with like consequence.

There is no error in the judgment, and it is therefore

Affirmed.