42 Tex. 596 | Tex. | 1874
The appellees, children of C. H. Sterne, deceased, joined by their mother, Emeline D. Taylor, brought this suit to recover of the appellant, Edmonson, part of out-lot Ho. 62, in the city of Galveston, claiming that at the death of their father, in March, 1853, it was his homestead. In the original petition Mrs. Taylor, formerly Mrs. Sterne, claimed in her own right, as lawful wife of C. H. Sterne at the time of his death, but, by amendment before final trial, she abandoned any other claim for herself than as heir of one of the children deceased
On the 10th day of July, 1852, Sterne and wife, intending a separation, conveyed the property in controversy, then being their homestead, to Lewis L. Chiles, the deed reciting the payment of the purchase-money being duly acknowledged, and, on April 26, 1854, duly recorded. The consideration of this conveyance, which embraced other lands, was six thousand dollars, which the evidence shows was in part paid to Mrs. Sterne by her husband at the time of the conveyance, and the balance collected for her out of his estate. The deed recites amongst other matters as follows: “ said Emeline D. Sterne being desi- “ rous to sell and relinquish all the right, title, and interest “ which she has in any manner in the place now constituting “ the homestead of said Emeline D. and C. II. Sterne, and said C. H. Sterne being willing that said Emeline D. should sell “ and relinquish, and convey her interest in all the property and “ in others hereinbefore mentioned, and also being willing to sell and convey his interest in the homestead aforesaid.” Also, “ said Emeline D., hereby intending to sell and convey “ all of her interest in said community as fully and effectually “ and to the same extent as though the bonds of matrimony “ between her and her said husband had been dissolved by the “ death of said C. H. Sterne, and her share of interest in said “ community had been duly and legally set apart to her after “ such death,” and conveys “ all the right, title, and interest of “ said Emeline D. and O. H. Sterne in any manner in and to “ the aforesaid homestead property.”
A separation at once ensued between Mr. and Mrs. Sterne, each taking two of their four children. It is alleged by defendant and denied by plaintiffs that Sterne subsequently obtained a divorce. The evidence is that a suit for' divorce was brought, but there is no evidence as to its result. Mrs. Sterne went to California and remained till after his death. He remained on the place till the following fall, when he put his children to
The position of appellees is that Chiles only held the lot in trust for Sterne; that Sterne’s homestead right in the place continued, notwithstanding the deed, up to his death; that the legal effect of the deed by Chiles was to vest the legal estate in Sterne’s heirs, who already had the equitable title; and that defendant had constructive notice of their rights.
Appellant alleged that the place was not the homestead of Sterne at his death, setting up the deed to Chiles, and claiming that the homestead was abandoned ; also that he had bought and paid for the property without notice of any homestead claim thereon.
The material part of the charge of the court is as follows: “ And if the jury believe, from the proof, that the premises in “ question were so conveyed to Chiles to hold the same in trust “ for Sterne, and that Sterne occupied or controlled the premi- “ ses as his homestead up to the time of his death, you will find “for the plaintiff the land described in the pleadings as sought “ to be recovered in this suit.”
The defendant requested the following instruction, which
There was a verdict and-judgment for plaintiffs, from which défendant appealed.
It was the right of the defendant to have the jury instructed as to the legal effect of the deed to Chiles. We think the evident intention of that deed was to divest both Sterne and wife of all homestead rights in the premises, and that such was its legal effect at the time of its execution. The parties jointly had full control of the homestead, and having voluntarily conveyed it, with the formalities prescribed by law, with the design of divesting it of its homestead character, no reason is perceived why the conveyance was not at the time effectual to accomplish their purpose. In Cox v. Shropshire (25 Texas, 123), the court, speaking of a deed made by Cox and wife without consideration, conveying their homestead to his brother, and containing no such recitals as does the deed in question, showing that the homestead character of the property was considered, says: “ But the deed is evidence, certainly of a very “ decisive character, that the grantors had relinquished their “ title, and no longer had any claim to the property as a home- “ stead.” Sterne and wife were doubtless aware that so long as they were husband and wife, one of them could not have a homestead in which the other had no rights. To accomplish their purpose the conveyance must amount to an abandonment of their homestead, and we think that such was its legal effect.
The court should have instructed the jury as to the effect of
For this reason, without passing on other questions raised, the judgment is reversed, and the cause remanded.
Reversed and remanded.