255 S.W. 237 | Tex. App. | 1923
J. C. Turner owned 50 acres, undivided, out of a tract of 250 acres of land in Motley county, Tex. S. S. McCanless owned a life estate in 200 acres, undivided, out of said tract, and the said J. C. Turner owned the vested remainder in said 200 acres. There were two dwelling houses on the 250-acre tract. J. C. Turner was the head of a family, and he and McCanless lived together in one of these houses; the other house was occupied by a tenant holding under lease from McCanless. The sheriff of Motley county levied an execution, issued on a judgment in favor of R. T. Miller against Turner, on "the undivided 200 acres of land owned in remainder by J. C. Turner and in which S. S. McCanless owns a life estate," and was proceeding to advertise it for sale. J. C. Turner brought this suit against the said Miller and the sheriff to restrain such sale, alleging in substance the foregoing facts, claiming that he was entitled to a homestead of 200 acres out of said 250-acre tract, and further alleging that by reason of the facts stated he could not make designation of the particular 200 acres which should be protected from sale. In the alternative he alleged that he was entitled to a homestead exemption on 50 acres out of said 250-acre tract, which he was unable to designate by metes and bounds, and that "any excess of plaintiff's interest in said land over and above his homestead exemption cannot be legally sold under execution without partition." Plaintiff's application for a temporary injunction was denied on a hearing in chambers, which confirmed the facts above stated, and the appeal is from this action of the trial court.
The appellant concisely states the issue between the parties in this language:
"The defendants concede that appellant was entitled to a homestead in this 250-acre tract of land, and the only issue between the parties is as to the extent of that homestead; the appellant claiming on the one hand that he is entitled to 200 acres in said tract, including his 50-acre undivided interest in fee simple and enough of the remainder to make out his 200 acres, leaving an excess of 50 acres undivided in remainder, and the defendants claiming, on the other hand, that appellant is limited to his 50 acres undivided in fee simple, and that all of the remainder in which McCanless holds a life estate is subject to execution and no part of the homestead." *238
We proceed by general discussion, without reference to the particular propositions, to dispose of the issue thus tendered.
The vested remainder held by Turner was such an interest in land as was the subject of sale under execution. Caples v. Ward,
The case of Jenkins v. Volz,
The case of Jenkins v. Volz, supra, is also relied on to maintain the appellant's proposition that there could be no sale of the 200-acre remainder interest without a partition of the land between him and McCanless. In the Jenkins-Volz Case Jenkins would, after the allowance of the homestead exemption, have been the owner of 112 acres, subject to sale. A suit was brought against Jenkins by Volz to foreclose a mortgage on the 312-acre undivided interest, and he set up the homestead claim heretofore stated, and in the same plea "suggested that the other joint owners be made parties, the land partitioned, and, after the homestead 200 acres had been designated out of the part partitioned to appellants, that the excess be subjected to plaintiff's mortgage," and the court said:
"This, we think, was preferable to selling the undivided interest in the entire tract subject to the homestead. It is desirable to avoid judicial sales of uncertain interests, due regard for the interests, not only of the debtor and creditor, but of the public, who are invited to purchase, requires that the thing to be sold be definitely ascertained."
It is evident that there would be more uncertainty in that case as to what a purchaser would get at a sale without partition than in this case. To the uncertainty as to what land might be awarded Jenkins on partition with the owner of the other interest in the 520-acre tract was added the further uncertainty as to what particular land Jenkins would then designate as his homestead. As a general rule, partition is not necessary to the sale under execution of an undivided interest in land owned by the judgment debtor. Braden v. Gose,
*239Affirmed.