60 Tex. 94 | Tex. | 1883
From the evidence found in the record it appears that Thomas F. and Haney Jane Harrison were married in August, 1847. At that time Thomas and Francis Harrison owned the land in controversy as tenants in common. Immediately after their marriage Thomas commenced to improve it, and when he had completed a cabin he and his wife moved upon and occupied the land as their homestead, and continued to so occupy it until their respective deaths in 1850 and 1851.
Thomas and Francis Harrison executed a mortgage in March, 1848; the wife of Thomas did not join therein, and in May, 1848, Francis conveyed his undivided one-half interest in the land to the wife of Thomas, by such deed as presumptively made the land the common property of Thomas and his wife. In a suit against Francis and Thomas Harrison on a note and the mortgage, judgment was rendered April 6, 1849, for the amount of the note, and a foreclosure of the mortgage was decreed. Mrs. Haney Jane Harrison was not a party to that suit. Defendants in error claim through a sale made under the foreclosure judgment by the sheriff, December 4, 1849.
As to the undivided half interest of Thomas Harrison, the homestead right of himself and wife had attached before the mortgage was executed by Thomas and Francis Harrison. And the first question for determination is as to that interest. What effect, if any, did the foreclosure of the mortgage and the sheriff’s sale thereunder have upon the rights of Thomas and Haney Jane Harrison as to that interest?
The case of Campbell v. Elliott, 52 Tex., 151, which is almost identical with the one under consideration, fully settles the question. For it was there held that a sale under a judgment foreclosing a mortgage upon the homestead, the wife not being a party to the suit, was void, and that a purchaser under such decree could acquire no title to the property. That such foreclosure and sale did not preclude a recovery of the land from the purchaser by the heirs after the death of their father and mother. Hobby’s Texas Land Law, sec. 785.
Considering the decree foreclosing the mortgage and sale thereunder as being inhibited bjr the constitution and therefore void as to that interest in the land, then there is nothing shown by the record that ought to preclude a recovery of that undivided interest by the plaintiffs in error.
So far as the other interest is concerned, as appears from the record, it was the common property of Thomas and Haney Jane
The judgment ought to be reversed and the cause remanded.
Reversed and remanded.
[Opinion adopted June 26, 1883.]
Associate Justice West did not sit in this case.
