Mayers v. Paxton, 78 Tex. 196

Mayers v. Paxton

78 Tex. 196 | Tex. | 1890

GAINES, Associate Justice.

This case was before this court at afoz’mer term, and the opinion is reported in 67 Texas, 96. After the case was remanded the defendants filed a pleading which they denonzinated the second suppleznental answer, to which an exception was sustained.

The correctness of the court’s action in that particular is now before-us for consideration. The suit is an action of trespass to try title, and the original petition contained, in addition to- the ordinary allegations-, appropriate to that action when brought in the statutory form, avermentsalleging title in the plaizitilfs by the statutes of limitation.

The defendants in their amended original answer disclaimed as to all the land except a tract of 204 acres, and as to that pleaded not guilty, the statutes of limitation, and specially that Mayers acquired title to the; land by a deed made to him on the 6th day of August, 1862, by one John-B. Freeland, the original grantee from the State.

In reply the plaintiffs alleged that before the conveyance from Free-land to Mayers one Weaver, under whom they claim, had brought suit. *199against Freeland to recover a debt and had caused the land to be attached'; that in such suit Weaver subsequently recovered a judgment foreclosing the attachment lien, and that Freeland having died, his administrator, in pursuance of an order of the District Court sitting in probate, had sold the land in satisfaction of the attachment lien, and had conveyed it tó Weaver, who became the purchaser at that sale. They also averred that the plaintiff Mrs. Paxton was one of the heirs of Weaver, and that all the other heirs had conveyed their interest in the land to her coplaintiff W. G. Paxton.

In reply to these allegations the defendant Mayers filed a supplemental answer in which he averred that at the time of the levy of the attachment the land in controversy was the homestead of John B. Freeland and his wife, and so continued to be their homestead until they conveyed the same to defendant, as previously alleged. It was to this answer that the exception was sustained, and we are of opinion that there was error in the ruling of the court.

If the land in controversy was the homestead of Freeland at the time the attachment was levied upon it, the levy was a nullity as to the 200 acres, including the residence, and no lien was created except upon the excess. Freeland and wife had the right to sell the homestead, notwithstanding the levy, and the purchaser took a good title. FTotwithstanding the purchase by appellant may have been made while the suit was pending and after the attachment was levied, and notwithstanding the judgment subsequently rendered against Freeland expressly ordered the land to be sold in satisfaction of the debt, his rights- in the property were not affected if in fact it was the homestead of his vendor. This was expressly held in Willis v. Matthews, 46 Texas, 478. If the question of homestead or not had been raised by the pleadings in the suit before Mayers’ purchase, as a purchaser pendente lite he would have been concluded by the judgment. But it does not appear that any such issue was made. If the land was the homestead of Freeland, as alleged by appellant, it is well settled by decisions of this court that his title was not affected by the sale made by Freeland’s administrator by virtue of the orders of the Probate Court. Poland v. Davenport, 50 Texas, 278; Schmeltz v. Garey, 49 Texas, 49; Lockhart v. Ward, 45 Texas, 227.

The court below did not err in permitting the plaintiffs to prove a title other than by the statute of limitations. A party who pleads his title specially in the action of trespass to try title is confined in his proof to the title so pleaded. But the rule does not apply where a plaintiff in addition to the statutory averments, or a defendant in addition to his plea of not guilty, has pleaded the statute of limitation. Limitation when relied upon either as a ground of action or of defense must be specially pleaded, and the fact that this has been done should not preclude a plaintiff in an action of trespass to try title from establishing any other title upon which he may *200rely, nor should a defendant who has pleaded not guilty and the statute of limitation be confined to the latter defense.

In regard to appellants’ third assignment of error, we deem it sufficient to say that the only property shown upon the inventory of the estate was 318 acres of land. This is presumably the land sued for in this action, which consisted of a little more than 300 acres. We do not wish to be understood, however, as holding that a failure to put the land upon the ' inventory would render a sale otherwise legal void.

For the error indicated the judgment is reversed and the cause remanded.

Reversed and remanded.

Delivered October 17, 1890.