283 S.W. 923 | Tex. App. | 1926
This is the second appeal in this case. For opinion on former appeal, see 258 S.W. 231. As originally brought, it was a suit by appellee against appellant, her husband, for a divorce, and for the recovery of certain real estate, alleged to be her separate property, in that she had paid the purchase money for same. The case was affirmed as to the divorce, but was reversed and remanded as to the division of the property. The last trial was had upon appellee's amended petition, in which she alleged: That a few weeks prior to her marriage to appellant she advanced to him $25 to pay on the real estate in controversy, describing same, and that appellant did so use same; that, after her marriage with appellant, she and appellant expended about $500 of community funds in improving said property, and also, with community funds, paid a $100 purchase-money note, amounting to $110, including interest. She alleged that said lot was community property, and was not susceptible of partition in kind, and asked that it be sold and the proceeds divided, or that she have judgment against appellant for the money advanced by her and for her interest in the community funds used in paying for said lot and improving same, and that a lien be fixed on said property to secure its payment, etc.
The appellant, after many special exceptions, pleaded a general denial, and also by special answer alleged that he was a married *924 man at the time of filing said amended answer (October 15th, 1925) and prior thereto, and the head of a family, and that said property was his homestead, and not subject to any lien as alleged by appellee, nor to partition, etc. The case was tried before the court without a jury and judgment rendered for appellee for her interest in the improvements made on the real estate in the sum of $174.65, and a lien fixed on said real estate and foreclosed, etc.
Appellant also complains of the judgment of the trial court in fixing and foreclosing a lien on the real estate involved in this case for the $174.65 recovered by appellee as her interest in the community funds used in improving said property, because, as contended by appellant, said property was his homestead, and the court was powerless to create or fix such lien on the homestead. If said property was appellant's homestead at the time the divorce was granted, and if said property continued to be homestead property from the date the divorce was granted — in other words, if the granting of the divorce did not destroy the family entitled to be protected in the use of the homestead — then appellant's proposition would be correct. Barber v. Barber (Tex.Civ.App.)
We have examined all of appellant's assignments, and, finding no reversible error, overrule same, and affirm the judgment of the trial court.