45 Tex. 574 | Tex. | 1876
On the trial, of this case in the District Court, the judge instructed the jury to the effect that if they believed from the evidence that the defendant failed to pay the amount of principal and interest, as stipulated and agreed in the deed of trust, as the first payment for the share in the land, mills, machinery, &c., situated thereon, sold him by Reed, and had not secured the second year’s interest by his note with good and satisfactory security, as also agreed, then the sum of twelve hundred and fifty dollars was due Reed, and the trustee was authorized to sell sufficient of the trust property, selling one sixteenth at a time, to raise that amount.
This instruction is clearly erroneous, and was calculated to mislead the jury to the manifest injury of appellants. It is evident from this, as well as the succeeding portions of the charge, that the court misconceived the true import and purpose of the trust deed. For although it is said in the deed that, if Ferguson shall “ pay each and every of the sums of money, both principal and interest * * * to he by him paid to the said E. T. Reed at the time the same became due and payable, then the deed shall become null and void,” and it may therefore he well held that the deed ivas intended as a security for the payment of the several sums mentioned in it as interest as well as principal, yet it must he remembered that the annual installments of interest up to 1876 were to be secured at the first of each year by a note with good and satisfactory personal security, while the subsequent interest was not to be secured otherwise than by the deed. And in providing for the sale of the trust property in case of a default, it is expressly declared that should Ferguson “ fail and refuse to pay the small sums above described, to be paid
The court also erred in giving judgment for a larger amount of principal than Reed claimed in his petition. This seems to have occurred by the jury deducting a hundred and
The court also erred in giving judgment against Mrs. Ferguson for the balance due to Eeed for his interest in the partnership property. It is not shown that she undertook or bound herself in any way for its payment, if, indeed, it was permissible for her to have done so.
The objection that the two tracts of land referred to in the trust deed were a part of the homestead of the appellant, and therefore the court could not order their sale for partition, although the plaintiff below might be the owner of an interest in them, is, we think, without force. If it is conceded that appellants owned the hundred-acre tract, upon which the statement of facts shows they resided when the undivided half of the two tracts upon which the mills are situated was sold by them to Eeed in December, 1866, though it appears that their deed for it, which is the only evidence of title in the record, is of a subsequent date, and that these three tracts Were part and parcel of their homestead; still, we think, it must be admitted that by this deed they vested an interest in the land therein described of which the purchaser cannot be deprived by reason of their pre-existing right in it. While a homestead, no doubt, may include two’ hundred acres of land, though parts of it may haWe been acquired at different times and from different persons, still the Constitution does not fix or prescribe the number of acres of which it shall consist, or require that it shall always contain the quantity of land which may have been once appropriated to this purpose ; and it cannot he questioned that the owners may sell
An absolute right to an undivided half of the land having become vested in Beed, the title which appellants- subsequently acquired by his sale to Ferguson of his interest in the partnership property, was liable for the purchase-money before the homestead rights could reattach to it. Certainly it cannot be objected that security was taken for the payment of the purchase-money by the trust-deed upon five sixteenths of the tract, when by law the vendor could have claimed a lien upon half of it.
The objection that the land is a part of appellant’s homestead resolves itself into the assertion of this broad proposition, that, where there is not more than two hundred acres in the entire tract, if one tenant in • common goes into possession and resides upon the land with his family, it becomes his homestead, and a partition cannot be had at the instance of the other part owners through the court. And especially
The judgment is reversed and the cause remanded.
Reversed and remanded.