This wаs an action of trespass to try title to one hundred and sixty acres of land, and the defend-ant pleaded that he wаs in possession of a part of the tract, under no claim of his own, but by virtue of a right of his wife under a parol gift from her fathеr, and prayed the suit might abate until his wife should be made a party by the plaintiff. To this plea an exception was prоperly sustained in the court below. The defendant could protect his possession under his wife’s claim as well without as hе could with her, without jeopardizing her rights by any judgment that could be recovered against him. Read v. Allen,
The plаintiff, Oely Quarles, and her first husband, Richard Jasper, settled upon the one hundred and sixty acre tract in 1873 as a homestead. Their children were all grown, and, with the exception of one son, living to themselves. In the summer of 1875 Richard Jasper died. Before his death he made a parol gift of a part of the tract in the southeast corner to his daughter, the wife of dеfendant, and defendant at once commenced to improve it. The defendant says his wife was to have in this part оf the tract one-third of the whole of it, but the boundaries of this part were not fixed, nor was it more definitely identified than as on the east side out of the southeast corner. In the fall after the death of Richard Jasper, defendant moved his family into a house he had built in the southeast corner of the tract, and they continued to reside there from that date withоut interruption until the commencement of this suit on January 13, 1885. The improvement he occupied was known as the Thomas place, and it was matter of general notoriety that Richard Jasper had given to Mrs. Thomas, the wife of defendant, a home on that part of the tract. From time to time, since their occupancy commenced, the defendаnt had put in cultivation thirty acres of the land and made other permanent and valuable improvements. The widow of Riсhard Jasper, who has ever since lived upon the tract as her home, in 1879 married Alfred Quarles, and some two or threе years ago she and the defendant’s family had a falling out over a church quarrel, and then for the first time she questioned thе defendant’s right to occupy the southeast portion of the home tract. The improvements he had made werе in sight of the plaintiff’s residence, and while she testifies that she knew nothing of Mrs. Thomas’ claim of title, it is believed that the fact, if deemed an issue in the court below, would have been found the
First, that the demand is stale. The homestead right asserted o' 0 by the plaintiff is the creature of constitutional and statute law. Its existence and maintenance depend upon no principle of equitable jurisprudence. The equitable dеfense of stale demand, generally applicable only to the assertion of an equity after time has obscurеd its origin, can therefore afford no defense to the purely legal right involved in this controversy.
And second, that the plaintiff had abandoned her homestead claim to this part, of the one hundred and sixty acre tract. We are constrained to believe that the court below, if requested to find upon this issue, would have determined the question in favor of defendant; but as there was no such request we cannot reverse the judgment upon this ground. The findings of law and fact, where a cаse is tried without a jury, take the place of the charge of the court and verdict, and as a judgment for the plaintiff uрon a charge and verdict corresponding to the findings of the court below would not be disturbed, because upon аnother issue not submitted to the jury a different result might have obtained, where the court’s failure to submit such issue has not been called to its attention by a special charge, so the failure of the court to make a finding upon an issue fairly involvеd in the pleading and evidence, where the complaining party has not requested a finding upon it, cannot be madе a ground of error, in effect, for the first time in this court.
In the court below the defendant pleaded improvements in good faith, but on the trial there was no evidence of the value of the land without the improvements, and hence their valuе and defendant’s good faith were not passed upon in the findings. There was proof of the value of the improvements made. But the statute does not award to the defendant such value, but only the difference between the value of thе land with, and its value without, the improvements. The defendant, therefore, in failing to prove the value of the land, left the court below without the means of awarding him
There is no error in the judgment of the court below, and it will therefore be affirmed.
Affirmed.
[Opinion delivered October 23, 1888.]