135 S.W. 1063 | Tex. App. | 1911
This litigation involves the legal ownership of 73 acres of land *1064 claimed by Charles and Ann Temple as part of their homestead. Several years ago they owned several tracts, as shown by the following plat:
[EDITORS' NOTE: MAP IS ELECTRONICALLY NON-TRANSFERRABLE.]
They borrowed money from appellant, and to secure same mortgaged all but about 200 acres, which 200 acres they designated as their homestead, being the 70, 69, and 50 acre tracts. The 61 and 73 acres tracts designated on the plat were included in the mortgage; but the 61-acre tract has been eliminated from litigation by this suit. The mortgage was foreclosed, and appellant became the purchaser of the land mortgaged.
The head of a family owning more than 200 acres of land impressed with the homestead character may designate what part constitutes the homestead and mortgage the balance, provided this is done in good faith, and not done for the purpose of avoiding the law prohibiting the mortgaging of the homestead. The part so designated must include the dwelling and appurtenances thereto. McGaughey v. Bank,
The question of estoppel on the part of appellees was raised by the evidence.
If both the 69.9-acre and 73-acre tracts were used and impressed with the homestead character, and appellees designated the 69.9-acre tract as part of their homestead, they were estopped from claiming the 73-acre tract, and the court should have presented this issue to the jury. Parrish v. Hawes,
The judgment is reversed, and the cause remanded.