Meyer v. Paxton

Court of Appeals of Texas

Meyer v. Paxton

23 S.W. 284, 4 Tex. Civ. App. 29, 1893 Tex. App. LEXIS 352

CourtCourt of Appeals of Texas

DecidedJune 15, 1893

DocketNo. 248.

StatusPublished

This text of 23 S.W. 284 (Meyer v. Paxton) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Meyer v. Paxton, 23 S.W. 284, 4 Tex. Civ. App. 29, 1893 Tex. App. LEXIS 352 (Tex. Ct. App. 1893).

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Opinion

WILLIAMS, Associate Justice.

This case has been twice before the-Supreme Court, and will be found reported in 67 Texas, 96, and 78 Texas, 199. Its character and the questions upon which it depends are sufficiently indicated in those reports.

At the last trial the defendants, who are the present appellants, asked the court to charge the jury as follows: “ If you believe the land in controversy was the home of J. B. Freeland when the attachment was levied, the levy of the attachment was void, and Freeland removing off the-land and to Panola County would not give any validity to said attachment.’ ’ This charge was refused, and the general charge contained no-equivalent instruction. The rule laid down in the requested instruction was a correct application of the ruling of our Supreme Court in the last-appeal of this case, though it does not appear that the question as to the effect of an abandonment of the homestead subsequent to the levy of an attachment was raised before the Supreme Court. The language used in that decision is: “If the land in controversy was the homestead of Free-land at the time the attachment was levied upon it, the levy was a nullity as to the 200 acres including the residence, and no lien was created except upon the excess.’ ’ An abandonment of the homestead subsequent to-the levy would not give validity to a nullity, and would not create a lien where none before existed. The charge should have been given, and the decision of the case should have been made to depend upon the issue whether or not the land was the homestead of Freeland at the date of the-levy.

The plaintiffs showed that G. W. Weaver, under whom they claim, sold the land to Freeland before it was patented, taking Freeland’s note for the purchase money, in which, as well as in the deed which he executed to Freeland, a lien for the purchase money was retained, thus making the contract executory. The land, however, was subsequently, in 1859, patented to Freeland as a pre-emptor by virtue of his possession of same, and the legal title was thereby vested in him, and passed to defendants claiming under him.

The suit in which the attachment was issued was brought upon the note-given for the purchase money. There is some uncertainty about the dates and the chronological order of all these transactions, and much conflict in the evidence as to whether Freeland took possession of the land and made it his homestead under his purchase from Weaver before or after the latter *31 caused the attachment to be levied on it. On another trial the case should be submitted on that issue.

Delivered June 15, 1893.

After this great lapse of time, and in view of the fact that Weaver sued Freeland on the note given for the purchase money and caused an attachment to be levied on the land to secure it, and of the fact that Weaver neither asserted his lien for the purchase money nor rescinded the contract, but directed all of his efforts toward the collection of the note, the plaintiffs can not avail themselves of any right which Weaver had, growing out of the sale to Freeland, but their case must depend upon the title secured through the attachment proceedings.

Reversed and remanded.

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WILLIAMS, Associate Justice.

This case has been twice before the-Supreme Court, and will be found reported in 67 Texas, 96, and 78 Texas, 199. Its character and the questions upon which it depends are sufficiently indicated in those reports.

At the last trial the defendants, who are the present appellants, asked the court to charge the jury as follows: “ If you believe the land in controversy was the home of J. B. Freeland when the attachment was levied, the levy of the attachment was void, and Freeland removing off the-land and to Panola County would not give any validity to said attachment.’ ’ This charge was refused, and the general charge contained no-equivalent instruction. The rule laid down in the requested instruction was a correct application of the ruling of our Supreme Court in the last-appeal of this case, though it does not appear that the question as to the effect of an abandonment of the homestead subsequent to the levy of an attachment was raised before the Supreme Court. The language used in that decision is: “If the land in controversy was the homestead of Free-land at the time the attachment was levied upon it, the levy was a nullity as to the 200 acres including the residence, and no lien was created except upon the excess.’ ’ An abandonment of the homestead subsequent to-the levy would not give validity to a nullity, and would not create a lien where none before existed. The charge should have been given, and the decision of the case should have been made to depend upon the issue whether or not the land was the homestead of Freeland at the date of the-levy.

The plaintiffs showed that G. W. Weaver, under whom they claim, sold the land to Freeland before it was patented, taking Freeland’s note for the purchase money, in which, as well as in the deed which he executed to Freeland, a lien for the purchase money was retained, thus making the contract executory. The land, however, was subsequently, in 1859, patented to Freeland as a pre-emptor by virtue of his possession of same, and the legal title was thereby vested in him, and passed to defendants claiming under him.

The suit in which the attachment was issued was brought upon the note-given for the purchase money. There is some uncertainty about the dates and the chronological order of all these transactions, and much conflict in the evidence as to whether Freeland took possession of the land and made it his homestead under his purchase from Weaver before or after the latter *31 caused the attachment to be levied on it. On another trial the case should be submitted on that issue.

Delivered June 15, 1893.

After this great lapse of time, and in view of the fact that Weaver sued Freeland on the note given for the purchase money and caused an attachment to be levied on the land to secure it, and of the fact that Weaver neither asserted his lien for the purchase money nor rescinded the contract, but directed all of his efforts toward the collection of the note, the plaintiffs can not avail themselves of any right which Weaver had, growing out of the sale to Freeland, but their case must depend upon the title secured through the attachment proceedings.

Reversed and remanded.

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23 S.W. 284, 4 Tex. Civ. App. 29, 1893 Tex. App. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meyer-v-paxton-texapp-1893.

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