Brown v. McLennan

60 Tex. 43, 1883 Tex. LEXIS 257

Opinion

Watts, J. Com. App.

Admitting that the tract of land about which this controversy arose contained three hundred acres, still it appears that appellant Morrell only owned an undivided one-third interest in the tract. He claimed, and the court found, that his entire interest in the tract was his homestead, and had become such prior to the accrual of appellants’ asserted rights.

That Morrell and family had a homestead on the land is not seriously contested, but is in fact tacitly admitted. Appellants, however, contend that the homestead was limited to his interest .in two hundred acres of the land, including his improvements, and that his interest in the remaining one hundred acres was not protected as part of the homestead. In support of this proposition they cite the case of Clements v. Lacy, 51 Tex., 161. That was a peculiar case, decided with reference to its facts. The court did not there announce any general rule to be applied in subsequent cases.

In Jenkins v. Volz, 54 Tex., 639, the very question here under consideration was considered and determined against the view insisted upon by appellants. It was there said: “But we are further of opinion that the homestead right of appellants was not confined to their undivided interest in the two hundred acres, including their improvements, but extended to an undivided interest of two hundred acres of the five hundred and twenty acre tract, and that until partition had, it was out of their power to designate their homestead by metes and bounds.”

That case is decisive of the proposition urged by appellants.

The effect of the foreclosure of the judicial attachment upon the land, as precluding the assertion of the homestead right by appellee Morrell, is not made a question in the case, and will not be considered further than to remark that whatever might have been the effect as to him, as his wife was no party to that proceeding, it could not preclude her from asserting the homestead right.

As it satisfactorily appears that all the interest appellee Morrell ever had in the land was protected from forced sale because of its homestead character, other errors complained about are immaterial, for under the facts of the case the appellants could not rightfully recover the property.

In other words, the rulings assigned as error could, considering the entire case, work no injury to appellants. The judgment, therefore, ought to be affirmed.

Affirmed.

[Opinion approved June 15, 1883.]