| Tex. | Jul 1, 1871
This case is brought before this court for a revision of the judgment of the district court.
The defendant in error, Matilda Tiemann, filed her petition in the court below for a divorce from the bonds of matrimony between herself and her husband, L. Tiemann. The petition alleges the marriage of the parties ; that they had one child, the issue of the marriage; and real and personal property, included in which was lot five in block thirty-seven of the inner lots of the town of Seguin, which was claimed by the plaintiff to be community property, and the homestead of the parties. The -cause was tried at the May term, 1870, and a decree entered by the court, dissolving the bonds of matrimony between the parties, and giving to the plaintiff the custody and control of the child, and also decreeing to her the lot in the town of Reguin, mentioned in the petition.
• The defendant moved for a new trial, which was overruled, and he sued out a writ of error, and assigns as one ground of error that the decree disposes. of and dispossesses him of his homestead, contrary to law and without his consent. The decree contains the following language: “ The house and lot on hand, which constituted the homestead at the separation, situated in the town of Seguin, to-wit, lot number five in block number thirty-seven, of the inner lots of Seguin, be and the same is hereby decreed to the plaintiff, and all title or claim set up to
We are of opinion that this decree cannot be supported by the law, in that it does operate to divest the title of the defendant in the house and lot in Seguin. (Paschal’s Digest, article 3452.)
There is no statement of facts in the record from which we can derive a knowledge of the true light in which the parties placed themselves before the court.
We gather from the decree that the plaintiff was entrusted with the custody of the child, named in the petition as the fruit of the marriage. This virtually considers her the head of the family, and we think the court very properly decreed her the use of the homestead; but it was not in the power of the district court to give her more than a life estate in it, and it must therefore be amended so that the plaintiff shall take under it the sole use and right to occupy the said house and lot in the town of Seguin, for and during the term of her natural life, and the decree of the district court, being thus amended, is affirmed.
Judgment reformed.