107 F. 33 | 5th Cir. | 1901
This is an action of trespass to try title, and was brought July 9, 1898, in the district court of Bosque county, Tex., by H. G. McConnell, Mrs. M. A. Hudson, and her husband, W. T. Hudson, citizens of Texas, against W. C. Thompson and others. The defendants in possession of the land sued for were the tenants of L. V. F. Randolph, who, on motion, was made party defendant as landlord. Rev. St. Tex. 1895, art. 5253. Randolph is a citizen of the state of New Jersey. On his petition the case was removed to the circuit court of the United States for the Northern district of Texas. It was alleged in the petition that the plaintiff M. A. Hudson was, on January 1, 1897, lawfully seised and possessed of 200 acres of land, with improvements thereon, described in the petition, situated on the Brazos river, Bosque county, Tex. It is averred that for a valuable consideration, on the 12th of November, 1897, she and her husband sold and conveyed an undivided one-half interest in the lands to her co-plaintiff, H. G. McConnell. The defendants answered, denying all the allegations contained in the petition, and pleaded the statute of limitations of five years. In response to the plea of the statute of limitations the plaintiffs filed a supplemental petition, alleging that the plaintiff M. A. Hud
The evidence showed that W. T. Hudson became tbe owner in fee simple of the real estate sued for on January 1, 1875. He was the common source of title of both the plaintiffs and the defendants. On February 18,1887, L. V. F. Randolph obtained a judgment against W. T. Hudson in the United States circuit court for the Northern district of Texas for $57,928.66. On February 20, 1889, W. T. Hudson, in consideration of one dollar and love and affection, conveyed to his wife, M. A. Hudson, the real estate in question, describing it by metes and bounds, and stating that it contained 200 acres. This conveyance was properly acknowledged and recorded- on January 5, 1891. On January 28, 1893, an execution was issued on the judgment in "the case of Randolph against W. T. Hudson, which was levied on the land in controversy. The land was sold on this execution, and the marshal conveyed it to L. V. F. Randolph by deed dated the 27th day of March, 1893. At the time W. T. Hudson conveyed the land in the suit to his wife, he and his family lived on it in a two-story house. He continued to occupy the house with his family until about the 1st of May, 1889, when he and his family moved to Haskell county, Tex. At the lime he made the conveyance to his wife, he was insolvent, and owned no other real estate. Before moving to Haskell county, W. T. Hudson negotiated a trade with E. Y. Brown to the effect that Brown, in consideration of a sum of money and the conveyance to him of the real estate sued for, was to transfer to Mrs. M. A. Hudson a herd of cattle. Possession of the cattle was turned over to W. T. Hudson, who placed John Brown, a son of E. Y. Brown, in possession of the land. Brown occupied the land under this agreement for several years, and Hudson held possession of the cattle. The trade, however, was never completed. No deed was ever delivered conveying the land to Brown, nor a bill of sale transferring the cattle. Brown paid (axes, but no rent, on the land. The trade was finally abandoned, and the herd — at least a part of it — surrendered to Brown or his agents. During this time, John Brown, being sued or threatened with suit by Bandolph, surrendered possession of the land to him, and Bandolph placed Thompson and the other defendants in possession as his tenants. The evidence tended to show that, if the trade between W. T. Hudson and Brown had been consummated, the cattle would have been transferred to Mrs. M. A. Hudson. The evidence was conflicting as to whether the Hudsons intended to and did acquire another homestead in Haskell county. .It was shown by survey that the tract of land described as 200 acres really contained 220 acres. The court instructed the jury to find for the plaintiffs for an undivided 200 acres out of the land in controversy. The defendants excepted to this charge. A verdict was rendered in accordance with the instructions of the court, and to reverse a judgment thereon this writ of error was sued out.
2. What real estate is to be subject to and exempt from execution issuing from the United States courts is governed by the local law where the real estate is situated. Fink v. O’Neil, 106 U. S. 272, 1 Sup. Ct. 325, 27 L. Ed. 196; Nichols v. Levy, 5 Wall. 433, 18 L. Ed. 596; Spindle v. Shreve, 111 U. S. 542, 4 Sup. Ct. 522, 28 L. Ed. 512; Rev. St. U. S. 916. This case is, therefore, to be examined in the light of the Texas law. The homestead of a family, not in a town or city, under the Texas statute and constitution, consists of not more than 200 acres, with the improvements thereon. Rev. St. 1895, art. 2396; Const, art. 16, § 51. It has been the constant policy of the state, in its constitution and legislation, as construed by many decisions of its supreme court, to favor by liberal interpretations the exemptions in favor of the debtor. These decisions construing the state’s constitution and statutes are as binding on this court as the constitution and statutes themselves. Elmendorf v. Taylor, 10 Wheat. 152, 6 L. Ed. 289; Post v. Supervisors, 105 U. S. 667, 26 L. Ed. 1204.
3. At the time W. T. Hudson made the deed to his wife, Eandolph, as his judgment creditor, had no claim on the homestead of 200 acres, which were embraced in the conveyance. As Wheeler, C. J., in Martel v. Somers, 26 Tex. 551, said: “The conveyance cannot be deemed fraudulent as to creditors, because the homestead was not liable to be taken in execution or to forced sale for the payment of debts.” The husband clearly has the right to give his homestead to the wife. His creditors cannot complain, because they are not injured. This is distinctly held in Blum v. Light, 81 Tex. 414, 16 S. W. 1090, where it is said that the husband may make a voluntary conveyance of the homestead to the wife, and his creditors cannof complain. The deed, therefore, of W. T. Hudson to his wife, was not made invalid by the fact that Eandolph held an unsatisfied judgment against the former. Hargadene v. Whitfield, 71 Tex. 482, 9 S. W. 475. Was there anything else in the transaction to make it voidable? If Hudson had the right to give his wife the homestead, she had the right, the husband joining in the deed, to convey it to Brown in exchange for cattle. This trade, however, was never completed, and has no bearing on the question involved in the case, except as evidence tending to show the intention of W. T. Hudson in making the deed to his wife. If she had attempted to sell the
4. It is contended that the deed is made void because it contains 20 acres in excess of the homestead. The conveyance to M. A. Hudson being prior in date to the marshal’s conveyance to Randolph, the former had prima facie the better right. On the record evidence, the plaintiffs below, after proving that the land sued for was the homestead at the date of the conveyance by Hudson to his wife, were entitled to recover. The defendants below became the actors in the attack on the deed to Mrs. Hudson. It called for only “200; acres” apparently — only for the homestead. It required the survey
5. It is conceded in the brief for the plaintiffs in error that “the nusband can convey directly to the wife Ms separate estate as well as community realty, neither being a homestead.” Story v. Marshall, 24 Tex. 306, 307. The learned counsel contends, however, that the husband cannot convey the homestead directly to the wife, because the constitution and statutes of Texas provide that the wife must consent to and join in the conveyance of the homestead. Const, art. 16, § 50; Rev. St. 1895, art. 636. When the wife joins in such conveyance, the statutes provide for an acknowledgment by her on privy examination. Rev. St. 1.895, arts. 635, 4618. It is urged that, these provisions not being complied with, the deed by Hudson, conveying the homestead to his wife, is void. The statutes requiring the privy examination of the wife as to conveyances of the husband and of her separate property are for her protection and benefit. They are not applicable, we think, to a conveyance of real estate by the husband to the wife. It being conceded that the husband, under the Texas law, can convey his real estate direct to the wife, there is no reason why he cannot convey to her the homestead to which he has the title. The consent and privy examination of the wife are required only when the conveyance is made to another. As she does not sign, it is not necessary for her to acknowledge a deed to herself. Her acceptance of the conveyance and
■ 6. It remains for us to consider the defense of the statute of limitations of five years. Peaceable and adverse possession of real estate fof five years bars a recovery. Rev. St. Tex. 1895, art. 3342. Brown went into possession in May, 1889. This suit was brought July 9, 1898. The evidence shows that the plaintiff below, M. A. Hudson, wras a married woman when the land was conveyed to her ;and when the adverse possession commenced, and has remained á married woman to the present time. Article 3201 of the Revised Státutes of Texas of 1879 provided that this statute of limitations . should not run against a married woman. This exception in favor of-married women remained the law until April 1, 1895, when the statute was so amended as to permit the limitation to run against married women. The amending statute left out married women in the list of those against whom the statute was not to run pending the disability. This language is then used:
“Provided that limitation shall not begin to run against married women, until they arrive at the age of twenty-one years; and, further, that their dis-ability shall continue one year from and after the passage of this article, and that they shall have thereafter the same time allowed others by the provisions hereof.” Rev. St. 1895, art. 3352.
Until April 1, 1895, article 3201, supra, made the disability of coverture complete. The amending act of April 1, 1895, removes the disability as to married women over 21 years of age, but it is provided that the disability shall continue for one year after the act takes effect. One year after the amending act took effect married women had no disabilities. Prom that period, — one year after the act took effect, — they start even with men and single women, and then they are to “have the same time allowed others by the provisions hereof.” The act gives the married woman over 21 years of agé one year to learn that her disabilities are removed, and it is .then applied to her as to men and single women. One year after . the passage of the amendment it began to apply equally to married and single women;-Five years had not elapsed when this suit was brought from the removal of Mrs. M. A. Hudson’s disabilities of coverture. We are advised that this statute has not been construed "by the supreme court of Texas. We cannot concur in the contention of the plaintiff in error that the time elapsing before the adoption Of the amendment should be counted against married women, giving them only one year to sue after the adoption of the amendment.
7. The material facts in the case are proved by record evidence or by uncontradicted, evidence. The conflict is about matters that are immaterial. Where the case depends on evidence about which there is no conflict, and of a kind from which different inferences cannot be- reasonably drawn, the court may direct the verdict. If it would be the plain duty of the court to set aside a verdict if given for the defendants, the court should direct the jury to find for the plaintiffs. Pleasants v. Fant, 22 Wall. 116, 22 L. Ed. 780. The court properly directed the verdict for the plaintiffs. The judgment of the circuit court is affirmed.