This is an appeal from, a judgment of the district court of Travis county on eight vendor’s lien notes, executed *618 by James E. Medearis .to P. B. Buratti, and foreclosing the lien on 64 acres of land situated in Travis county.
James E. and Pearl Medearis married in 1908, moved onto .tbe land in question, and lived in tbe bouse with James E. Medearis’. father and mpther, George and Ann Medear-is, until tbe fall of 1912, when James E. Medearis built on this land at bis own expense, out of community funds, a bouse about 100 yards away from that of bis parents. In 1913, Ann Medearis died and left surviving ber husband, George Medearis, and eight children, including James E. Me-dearis. Thereafter, George Medearis died, leaving a will in which be devised to James E. Medearis all his property. Including what be inherited from bis mother, James E. Medearis thus became tbe owner of a nine-sixteenths ox- 36-aere undivided interest in tbe 64-acre tract. In 1919 thе other heirs of Ann Medearis sued James E. Medearis and bis brother, Green Medearis for partition of their mother’s estate, alleging that tbe 64 acres was not susceptible of partition, and asked that it be sоld and the proceeds divided. James E. Medearis answered, confessing such allegations and joined in the prayer for tbe sale of tbe 64 acres. Only tbe original petition of this partition suit, James E. Medearis’ answer thereto, and tbe deed of tbe receiver appointed by tbe court to make tbe sale, were introduced in evidence. This deed from tbe receiver, dated July 29, 1919, conveyed the 64 acres- to.D. B. Buratti, ap-pellee, for a recited cash consideration of $6,400. On August 1, 1919, Buratti recon-veyed -this land to James E. Medearis for a recited consideration of $6,400, $1,900 cash and eight vendor’s lien notes for tbe aggregate sum of $4,600 due one ea.ch year respectively from November 1, 1921, to November 1, 1928. Both of these deeds wei'e filed for ■record on tbe same day. Upon failure to pay notеs 1 and 2 appellee, under their terms, élected to mature all of said notes and brought suit thereon, making James E. and Pearl Medearis parties.
Appellants defended on three, grounds: First, against pei'sonаl liability of James E. Medeai-is because of bis discharge in bankruptcy; second, on tbe ground that at tbe time of tbe partition suit appellants owned an undivided 36-acre interest in this land, were occupying аnd using it as a homestead, and that tbe partition suit was merely a simulated transaction, and so known to Buratti at tbe time for the purpose of creating, a lien on their homestead interest in said 36 acres, to secure money furnished James E. Medearis by Buratti to purchase the 28-acre interest of the' other heirs; and, third, on the ground that Pearl Medearis, having a homestead interest therein at the time was a neсessary party to the partition suit, but was not made a party, and that such partition decree, as to her, was therefore void. They also by cross-action asked that the lien be annulled, their homestеad right in the 36 acres established, and the land partitioned.
Plaintiff introduced in evidence his notes and the deed from him to Medearis. At the close of defendants’ evidence and without any rebuttal evidence the court, upon motion of plaintiff, gave the jury peremptory in-stnxctions to find for the plaintiff.
Opinion.
Appellants’ first contention is that, since the judgment made no express disposition of their cross-action, but only awarded appellee judgment for his debt with foreclosure of his lien, it is not a final judgment. There is no merit in this. A judgment is final when it expressly or by necessary implication disposes of all the. issues raised in a case, and a judgment in general terms in favor of one party has been held to dispose of the cross-action or counterclaim of the opposing party even though same is not expressly mentioned. Trammell v. Rosen,
The next contention, raised in numerous propositions, relates to the homestead claims of Pearl Medearis in the land. The court, in giving peremptory instructions to the jury,' in effect, held thаt there was no evidence as a matter of law.to support the defenses pleaded. To wrongfully withdraw a case from a jury on peremptory instruction has been held to be fundamental error. Rowe v. Railway Co. (Tex. Civ. App.)
And even if they had not owned the land on which it was situated, the house built by Jamеs and Pearl Medearis with community funds in 1912, was, under the evidence, their homestead, exempt as such, in which Pearl Medearis had a vital interest. See Cullers v. James,
While a homestead right in, one cotenant cаnnot prejudice the rights of other co-tenants in the property (Clements v. Lacy,
“If there' was any defense that could have been urged growing out of her homestead rights which would have defeated the action, then she was a necessary defendant in the cause.”
See, also, Cooley v. Miller (Tex. Com. App.)
If in fact she was not a party to the partition suit, and could have defeated such action, then she was entitled to set up such defenses to the suit of appellee. We doubt, however, if there was any competent evidence that she was not a party to the partition suit. The partition decree, which would have conclusively settled the question, was not introduced. The original petition, which wаs introduced, is not conclusive, as such pleading could have been amended so as to include her, or she could have intervened. Her own testimony that she “did not know anything about a suit filed by Kate Kavanаugh against Jim and Green Medearis,” does not necessarily show that she was not a party to such suit. She could, have been served with a citation, or waived service, as is often done in friendly partition suits, and still hаve truthfully given the same testimony. . 1
We have reached the conclusion, however, that the trial court erred in giving the peremptory instruction for another reason. When the appellee introducеd the notes and the deed from himself to James E. Medearis, he made out a prima fade case. Appellants’ evidence, however, showed that Pearl Medearis had, with her husband and children, lived upоn the 64-acre tract of land as their homestead since 1912, and that such use and occupancy was not in fact broken nor interrupted by the partition suit, and that the nature and extent of such occupancy was known to appellant Buratti all along. The proof also showed that they lived in a house ' built by James and Pearl Medearis, from community funds. In other words, it appears that she had been in possession of the property as a homestead continuously, and there was no evidence of abandonment. Pearl Medearis was not named in the deed' from Buratti to James E. Medearis, nor did she join in the nоtes executed by her husband. Having shown such continued possession of the property claiming same as her homestead, and not being a party to any of the instruments introduced by appellee on whiсh he seeks to recover, we think it was incumbent on the appellee, as plaintiff, to show either that she had no homestead right, or that his asserted rights were superior thereto.
In Welborne v. Downing,
The other contentions, raised by appellants, relate to issues which need not occur again upon another trial, and we preter-mit a discussion of them here. For the error discussed, the judgment of the trial court will be reversed, and the cause remanded for another trial.
Reversed and remanded.