text:
    W. S. McShan v. Jacob Myers.
    (Case No. 3434.)
    1. Verdict—Special issues.—Where the verdict is found upon special issues, the appellate court cannot look beyond it to any fact apparent in the record in aid of the judgment. 29 Tex., 891; 27 Tex., 406; id., 685; 22 Tex., 806; 40 Tex., 288; 44 Tex., 284; id., 626; 45 Tox., 342.
    S. Landlord and tenant. — The rule that a tenant will not be allowed to controvert his landlord’s title extends to the tenant holding over. He may buy in the landlord’s title, or one consistent with it, and defend under such purchase. The purchase of an outstanding title by a tenant may be repudiated, by the landlord, in which event the tenant may assert the title so purchased, subject to the obligations he is under by the terms of his lease, Taylor on Landlord and Tenant, sec. 705.

      3. Mortgagee.—The right of the mortgagee to buy at his own sale, when the mortgage has a power to sell, does not include the right of the mortgagee, while administering the property prior to the foreclosure sale, to deal with the trust property otherwise than as a trustee. 6 Tex., 184; Perry on Trusts, sec. 200.
    4. Homestead — University land.— A purchaser of university land, or his vendee, who has not perfected his title thereto by payment to the state of all the purchase money, may nevertheless, as against creditors, assert his homestead right in the land.
    Appeal from Grayson. Tried below before the Hon. E. E. Gaines.
    September 16, 1875, Myers brought suit in the district court of Grayson county against McShan for the possession of íiftyr acres of land. The petition alleged a lease January 4, 1874, by Myers to McShan, in writing, for one year, the. lease béing made an exhibit, at $250 per year, one-half paid cash and remainder payable at close of year, McShan to make necessary improvements, to be deducted from the rent. That August 10, 1874, the parties had made another contract, also an exhibit, under which defendant claims to hold the possession. That the land was the homestead of plaintiff and his family at the time of the lease and so continued. The second exhibit showed that August 10,1874, Myers had executed to McShan a promissory note for $210, due September 1, 1874, and to bear three per cent, per month interest after maturity, and at the same time Myers executed to McShan a mortgage on the land to secure the note.
    Possession ivas claimed — rent $125 — on account for 1874, and for 1875 the sum of $300; all claimed as damages.
    September 28,1875, defendant answered by general denial; special denial that the land was the homestead of plaintiff; pleaded possession under the mortgage of date August 10, 1874, and alleged that for expense of labor and repairs made on the place no payment had been made, and that their value equaled the rents due, etc.; setting out an exhibit (K) of items, total amount $213.11; alleged an arbitration of matters in part, and the award to him of $262.98, award by Trottinger and Graves, and since the award, money, material and labor expended on the place amounted to $119.65.
    Prayer for judgment and enforcing mortgage.
    August 2, 1876, plaintiff amended, praying additional rent of $300, for year 1876, which he pleads in offset and reconvention against the claims of defendant; this apparently applying to his entire claim for damages.
    August 4, 1876, defendant amended, alleging that he is the just, legal and equitable owner of the land — setting out the history of the title; that the fifty acres formed part of a tract of one hundred and sixty acres, purchased by John Hughes, of university land, and that on February 12; 1876, defendant had bought and Hughes and wife had deeded the said fifty acres to defendant; that Myers had never paid any part of the purchase money to obtain a patent therefor; that plaintiff had frequently been requested to pay by Hughes and by defendant prior to defendant’s purchase from Hughes, and that Myers always refused to pay, and had abandoned his contract of purchase. That the one hundred and sixty acres was part of Hughes’ homestead, etc. Hughes’ death, April, 1876; patent 22d June, 1876, to Hughes’ heirs.
    Prayer that Myers’ contract be annulled, and his claim as cloud be removed, etc.
    August 4, 1876, plaintiff filed exceptions to the several pleadings of defendant.
    August 4th, plaintiff, in replication to last amendment of defendant, alleged his purchase, September 19, 1867, of the fifty acres of John Hughes, and Hughes’ bond to make title when patent should issue (the bond is in $300, and obliges Hughes, he having sold for value, to make title when patent shall issue); that previous to Hughes’ purchase of the one hundred and sixty acres, he had, by parol contract with plaintiff, agreed to buy it and convey the fifty acres to plaintiff; plaintiff had paid Hughes the purchase money, and had erected house and improvements worth $1,000. Hughes was to buy the land; perfect title when patent, etc. Factsi were alleged showing that the fifty acres formed no part of Hughes’ homestead; that defendant took the deed from Hughes and wife with full knowledge of all the facts, and purchased only such right as Hughes had, taking a quitclaim.
    August 8, 1876, defendant amended; that Hughes agreed with Myers that if he would pay $200 and the proportion-able part of the fifty acres to the state, he should have the land. The valuable consideration was that Myers was to pay the purchase money to the state; that Myers refused to do" so and repudiated the contract, and that Hughes was compelled to sell, not being able-to raise money to protect the entire one hundred and sixty acre tract, etc.; asks judgment for purchase money and foreclosure of his vendor’s lien in event plaintiff recovers the land. Also that Myers is insolvent, and represented to defendant that the land was not homestead; that defendant was compelled to buy of Hughes to prevent eviction; that defendant was induced to take possession of the land, loan money, etc., by Myers; liability to Hughes, etc. Upon which pleadings upon special issues the jury found the facts following:
    1. Myers had a family August 10,1874, the wife living.
    2. The land was his homestead then.
    3. He had no other homestead.
    4. He had not abandoned it.
    5. And never since has.
    6. Ho damages from McShan’s acts in 1874.
    7. Hor since then.
    ,8. The value of the rent a year is $250.
    9. Hughes was a married man when he ihade the bond to Myers. (The bond 19th December, 1867, from Hughes- to Myers.)
    10. After Hughes sold Myers fifty he had two hundred left.
    11. Myers was to pay the state (in his trade with Hughes).
    12. McShan paid $210.121- in order to make good Hughes’ title from the state.

      13. McShan has put necessary repairs on the land, value §193.26.
    Upon this verdict the court rendered a decree for plaintiff for the land, for costs, and for defendant against the plaintiff for §304 and three per cent, per month interest.
    Defendant moved for a new trial because:
    1. The judgment is contrary to the verdict.
    2. It is not in conformity to the pleadings.
    3. It is contrary to law, the evidence and the pleadings.
    Motion being overruled the defendant appealed. The assignments are numerous, but they attack the judgment as not supported by the pleadings and the findings of the jury, and the action of the court in excluding evidence of an award offered by the defendant.

      Bledsoe & Head, for appellant.

      A. E. Wilkerson, for appellee.
   A. S. Walker, J.

1. In the view of the case taken by us a reversal becomes necessary because the special verdict, or rather the facts found on the issues submitted, do not authorize the verdict as rendered, nor are they sufficiently full to enable this court to reverse and render such judgment upon it as would do justice to the parties.

On the part of appellant it is insisted that the pleadings and evidence may be looked to, to ascertain the necessary fact that the executory contract for the sale of the land between Hughes and Myers was terminated by Hughes or repudiated by Myers. Time not being on its face of the essence of the contract, it could only be made so, or terminated by Hughes, by giving express notice of such act to Myers. Scarborough v. Arrant, 25 Tex., 136; Hill v. Still, 19 Tex., 85. Such act on part of Hughes is not shown. The repudiation of the obligation to paj^ the state dues, found in the pleadings and evidence, would, in effect, probably be a repudiation of the contract sufficient to authorize Hughes’ sale to McShan.

But neither of these facts is found by the jury.

On the other hand, in support of the verdict, Myers looks to the documentary evidence and to the pleadings to supplement the verdict in a basis for the judgment. As apparent from the verdict, there is in it no foundation for the disposition made of the rents; their amount; what was done with the claim for improvements; how the money judgment was computed, etc. ■ Taken in connection with the pleadings and exhibits (all the documentary evidence formed parts of the pleadings as exhibits), the mode of action in the mind of the court below in reaching the judgment can be understood.

But we are not allowed to look beyond the special verdict.

“ When the verdict is found upon special issues alone, the court" cannot look beyond it to any fact apparent in the record in aid of the judgment.” Kuhlman v. Medlinka, 29 Tex., 391; Ledyard v. Brown, 27 Tex., 406; Rains v. Calloway, 27 Tex., 685; Sharp v. Baker, 22 Tex., 306; Collins v. Cook, 40 Tex., 238; Harrison v. Mabry, 44 Tex., 286; Mussina v. Shepherd, 44 Tex., 626; Frost v. Frost, 45 Tex., 342.

2. The action of the court in excluding the award offered can be remedied on a new trial. The description, if defective, can be corrected by amendment.

3. That the title to the land by Myers was not perfect as against the state or against his vendor,- Hughes, does not prevent homestead rights from attaching to it, under the circumstances provided by the constitution and laws creating such right, as against all others. As against McShan, Avhen this suit Avas brought, Myers could disregard the mortgage, in behalf of the homestead rights of his family.

4. The pleadings of the plaintiff at the time McShan bought of Hughes and wife were clear and pointed that McShan was neither mortgagee nor tenant. Possession and damages for wrongful conversion of the profits were claimed. Ho rights were accorded to McShan under contract. By the petition he Avas a trespasser — mesne profits claimed instead of rents. On the other hand, McShan claimed by his pleadings that his possession was under contract with Myers, both as tenant holding over and having the right to payment in rents of his advances, and as mortgagee having the right to payment of his debt.

There was, however, in the amended petition of August 2, 1876, a partial recognition of McShan’s tenancy as lessee in the prayer to offset the rents against his claims set up in his answer.

But at the date of his purchase from Hughes and wife, February 12, 1876, there was no recognized contract trust relation between the parties. Will the law affect their relations to the property and to each other with reference to it with such relation?

This question we only suggest, it not being before us for decision.

The rule is general that a tenant will not be allowed to controvert his landlord’s title. The rule extends to the tenant holding over. Taylor on Landlord and Tenant, § 705. The tenant may buy in the landlord’s title, or one consistent with it, and defend under such purchase. His resistance in such case is tinder and not against the title under which he entered. Id.; Comley v. Stanfield. The right to purchase does not appear to extend further.

But the purchase of an outstanding title by a tenant-could be repudiated by the landlord, who is not compelled to adopt the acts of the tenant as his agent in the purchase. Should the landlord disaffirm the act the tenant would be remitted to the assertion of the title; and in such case could do so, subject, however, to all the obligations he is under by the terms of his lease; and in this case, should Myers repudiate McShan’s action in the" purchase, and a successful assertion of right to the land under his purchase be made, he would still be liable for rents up to his purchase, and costs, if the allegations in the petition be proven. The right of the mortgagee to buy at his own sale, when the mortgage has a power to sell, does not include the right of the mortgagee, while administering the property prior to the foreclosure sale, to deal with the trust property otherwise than as a trustee. Howard v. Davis, 6 Tex., 184; Perry on Trusts, § 209. To enable the plaintiff to take the benefit of this relation it should be recognized. The recognition and authority to buy in the outstanding title would be presumed, and the court would charge the property with the expense of such purchase to reimburse the outlay.

[Opinion delivered April 26, 1880.]

We believe that in the absence of express repudiation on the part of Myers, the law would attach to McShan in • his purchase the obligation and duty of trustee, both as mortgagor in possession and as tenant. Perry on Trusts, §§ 209, 210.

This relation to the property could be repudiated by Myers, and he could choose to treat McShan as dealing for himself; in which event he could assert whatever right Hughes and wife could convey to him February 12,1876, in their. deed. To obtain the benefit of McShan’s purchase Myers must recognize McShan as having in some capacity acted for him.

It would seem, then, that to prevent McShan from using the Hughes title, his rights as tenant holding over and as mortgagee should be recognized in offsetting rents against his claims, if provided for in the lease and the note, etc., and in paying his outlay in buying the Hughes title.

For the insufficiency of the special verdict under the pleadings and evidence to sustain the judgment below it should be reversed.

Reversed and remanded.


source: Caselaw Access Project

author: Quinan, J.

license: Public Domain

text:
    John Dickerson et al. v. R. A. Abernathy, Adm’r.
    (Case No. 2978.)
    1. Child’s title in community property — Legal and not equitable.— The child who sues for his share in the community property of a deceased parent is not asserting an equity, but a legal title. Johnson v, Harrison, 48 Tex., 268.

      2. Conveyance or community property by surviving husband.— A conveyance of the community property belonging to himself and deceased wife by the surviving husband, except where he has given bond, or where it is made in discharge of a community obligation, or in the settlement of community debts, is simply a conveyance of his own interest in the property, and in no way affects thé heirs of his deceased wife. Kirkland v. Little, 41 Tex., 460.
    3. Surviving husband not a trustee.— After the death of the wife, a surviving husband exchanged lots in a city, belonging to the community estate of himself and his deceased wife, for a tract of land. ' The sale passed only his title to the lots, in no way dispossessed his children, and being in no way the trustee of their interest in the community property, they cannot elect to have their interest in the lots set apart to them out of the land so acquired in exchange therefor. Perry on Trusts, 127. It would be otherwise were he to buy land after the death of his wife with money belonging to the community estate, in which case the surviving husband would be a tenant in common with the heirs of the deceased wife, in the property so acquired. McAlister v. Farley, 39 Tex., 552.
    Appeal from. Fannin. Tried below before the Hon. Jno. 0. Easton.
    A statement of the case will be found in the opinion.

      Richard B. Semple, for appellants.

      W. A. Evans and II. G. Evans, for appellee.
   Quinan, J.

John Dickerson, for himself and as next friend of Jesse Dickerson, a minor, instituted this suit against Abernathy, the administrator of the estate of their father, S. B. Dickerson, to recover one hundred and twenty acres of land, which they alleged they are entitled to as sole heirs of their deceased mother, for this; that after her death their father exchanged for it certain lots in McKinney, which were the community estate of the said S. B. Dickerson and Margaret, their mother.

They allege that, when their mother died, neither she nor their father, S. B., owed any debts; that no administration was ever had on her estate, there being no necessity therefor; that said S. B. Dickerson never filed any bond or inventory of the community estate. They set out in the petition fully how the property sued for was acquired; how much they had received from their mother’s community estate; what other property of the community had been sold, and aver that the one hundred and twenty acres is the mother’-s share in the community remaining, and that they have received no estate from their father. In an amended petition they allege that their father made an absolute conveyance of the whole lots in McKinney, purporting to convey the interest of himself and plaintiffs; that they elect to sue for the one hundred and twenty acres; that they never have resorted to any interest they might claim in the McKinney lots; have never received any benefit from them, and are looking solely to the property in controversy in this suit for their remuneration, etc.; that the estate of their father is insolvent, and the property in the hands of his administrator.

To this "petition the administrator filed a general demurrer, which was sustained, and judgment was* then rendered for the defendant, and that the cause be dismissed.

The plaintiffs have appealed from this judgment, and assign for error that the court erred in entering judgment final on demurrer and dismissing their suit.

The question presented is whether in the case stated the heirs of Margaret Dickerson are entitled to recover of the estate of S. B. Dickerson the property purchased by him with community property, or received in exchange for the community property of himself and Margaret, conveyed by him after her death; whether they can elect for which property they shall sue, and follow, if they see fit, the property or that purchased with it?

It is now the settled law of this state that “ community property," upon the death of either husband or wife; vests by the statute in the survivor and the children of the deceased. The interest of the survivor is the same — each one-half of the remainder. The legal title is in the survivor and the children. The child who sues for his share is not asserting an equity, but a legal right.” Johnson v. Harrison, 48 Tex., 268, and cases cited.

A conveyance by the surviving husband of the property except where he has given bond and filed an inventory under the act of 1856, or where it is made in discharge of community obligations, or in the settlement of the com-' munity debts, is simply a conveyance of his own interest in the property, and in no way affects the title of the heirs of the deceased wife. He has no power, in such case, over their half of the property. They have the absolute right to sell and dispose of it, as fully and amply as the surviving husband. Kirkland v. Little, 41 Tex., 460. So in the present case, as it is alleged that, at the time of the death of Mrs. Dickerson, there existed no debts against her or her husband; that there has never been administration upon her estate; that Mr. Dickerson never filed any bond or inventory under the law of 1856; that the children of Margaret Dickerson have received nothing from the estate of their father, and have not received their full share of the estate of their mother, and that the McKinne\7 property was community estate of their father and mother at the time of their mother’s death, the absolute legal title to one-half of that property vested in them, and not a mere equity.

Their father, having no power over it, or right of disposition of it, was chargeable with no duty or obligation concerning it. During the life-time of Mrs. Dickerson, because of their marital relations, he occupied towards her and her estate a fiduciary capacity, but upon her death, in the case stated, such relation did not exist between himself and her heirs. And unless such fiduciary relation existed, or was implied by the law, there would be no resulting trust from any disposition he might attempt to make of their property.

The rule is stated in Perry on Trusts, 127, that if a person having a fiduciary character purchase property with the fiduciary funds in his hands and take the title in his own name, a trust in the property will result to the person entitled to the beneficial interest in the fund with which the property was paid fori” And the instances given are where trustees, guardians, administrators, husbands, and the like, purchase property with the money in their hands belonging to the persons to whom they bear a fiduciary relation.

But it is said: “If one who stands in no fiduciary relation to another appropriates the other’s money and invests it in real estate or other property, no trust results to the owner of the money.”

And again: If one standing in no fiduciary relation obtains another’s property wrongfully and invests it in land in his own name, or if a clerk appropriates his master’s money and buys real estate in his own name, there is no resulting trust, p. 107.

It follows from this that the heirs of Mrs. Dickerson, having in themselves the legal ownership of the McKinney-property, of which they have never been dispossessed by any act of their father, they have the undoubted right to sue for and recovef it.

And, consequently, and inasmuch as it was purchased during the existence of the marriage, and was not acquired by the investment of any money or fund belonging to them, that they have no right to elect to consider themselves dispossessed of the title to that property and recover from the administrator of their father the property for which it is alleged he exchanged it by a conveyance invalid to effect a transfer of their title in it.

This case does not involve the consideration of what might be the. rule applicable, where the surviving husband remains in possession of funds belonging to the community, and invests that money after the death of the wife in real property. In such case we do not doubt, as held in McAlister v. Farley, 39 Tex., 552, the surviving husband, or his administrator, could be tenants- in common with the heirs of the deceased wife in the property, or the heirs might sue the husband or his administrator for the money. But this results from the fact that be holds that money in a fiduciary character until the affairs of the conjugal partnership are settled, and the same rules do not apply as in the ease before us, where the property involved is real property acquired during the continuance of the marriage, and remaining at its dissolution, and in which the legal title to one-half vests at once in the heirs, not subject to his control, except in the cases indicated and in the mode provided by law.

[Opinion delivered April 26, 1880.]

We conclude, therefore, that the demurrer was properly sustained, and there being no error in the judgment, it ought to be affirmed, and we so award.

Affirmed.


author: A. S. Walker, J.

text:
    H. H. Dahoney v. Allison & Moore.
    (Case No. 3646.)
    1. Jurisdiction — Amount in litigation.— Where the demand sued for amounted to $466, and §200 consequent, additional and necessary damages was also claimed, the subject of litigation,was within the jurisdiction of the district court.
    3. Levying attachment on mortgaged property,— A levy of an attachment may be made on mortgaged property, subject to the prior incumbrance of the mortgage, and upon the sale of the property under the mortgage, the attachment lien follows the surplus after satisfying the mortgage.
    3. Pleadings.— Allegations that by the joint acts of a trustee, under a deed of trust upon property, and a constable having process in his hands against the mortgagor, the plaintiff has been prevented from obtaining satisfaction of his demand, show a cause of action against the trustee and constable, and a demurrer thereto was properly overruled.
    Appeal from Lamar. Tried below before the Hon. E. E. Gaines.
    January 8, 1875, in justice precinct Ho. 1, in Lamar county (having jurisdiction), Allison & Moore brought suit against H. II. Dahoney and P. M. Spears, who was a constable, and his sureties, Jas. O. Walker and P. M. Price. The defendants recovered judgment, August, 1875, in the justice’s court. The case was appealed to the district court, and there filed October 20, 1875. May, 1877, the cause was tried, resulting in judgment for plaintiffs against Dahoney, the other defendants recovering judgment and costs.

      In the transcript what purports to be a statement of facts is not signed or approved by the district judge. It cannot, therefore, be considered as part of the record.
    The assignments of error present several questions requiring a move full statement of the pleadings of the plaintiffs than we usually regard as necessary. The petition alleged that plaintiffs had, on May 15, 1875, recovered a judgment in the same court against F. F. Dodd for $466 and costs; that in the suit, on 8th January, 1875, an attachment had been issued, which was on the same day levied by the constable, Spears, on certain personal property (mill machinery) of said Dodd, the property being described; that the attachment lien created by said levy upon the property was duly foreclosed in the judgment aforesaid, and sale of the same ordered to satisfy the judgment; that the attachment was levied on said property subject to a deed of trust made therefor by said Dodd to H. H. Dahoney, trustee, to secure a debt therein described; that on April 6, 1875, the trustee, Dahoney, made a sale of said property under the trust to one Ward for $1,275 cash, all of which sum was paid to the trustee, and that, after satisfying the debt for which the trust was executed and all costs of sale, there remained in the hands of Dahoney $650, subject to plaintiffs’ attachment lien, of which Dahoney had actual and constructive notice; that plaintiffs made demand on Dahoney, who fraudulently withholds the same; that the constable, Spears, wilfully and fraudulently permitted said property so levied on and taken possession of as aforesaid, which had not beenreplevied, to be taken from his possession and removed to - some place unknown, without first subjecting the excess .in the sale to the payment of the said judgment and plaintiffs’' attachment lien.
    That said Spears wrongfully failed and refused to take-care of and account for said property levied on as aforesaid as the law requires, whereby he became liable, etc.
    That the constable, Spears, and the trustee, Dahoney,.combined together to fraudulently and forcibly violate the law and their duties for the purpose of depriving, plaintiffs of their rights, and to convert the proceeds of the. sale of said property to purposes other than to the payment of plaintiffs’ debt aforesaid against Dodd; that at Dahoney’s sale Spears auctioned off the said property; that Dodd is wholly insolvent and has left the country, léaving no other property than that so levied upon and taken possession of as aforesaid.
    That Dahoney and Spears have damaged plaintiffs by keeping them out of their said money and compelling them to institute other suits therefor, in the sum of $200 additional.
    Judgment asked against Dahoney for the money, and in the alternative against Spears and his said sureties.
    By amendment plaintiffs set out acts charged to be in fraud of the rights of plaintiffs in procuring, as one of a law firm, the attorneys of one Ward,-the issuance and service on himself of a writ of garnishment long subsequent to the levy and lien of plaintiffs, so fixed upon said property; repeated the charge that Dahoney and Spears confederated together to practice a fraud upon plaintiffs, and to wrong them out of the said $650 in the hands of Dahoney of proceeds of the sale of said property on which plaintiffs had an attachment lien, and by reason of such wrong plaintiffs have been necessarily compelled to bring other suits, etc.
    Dahoney demurred; specially excepted because the petition joined two separate and distinct causes of action which have no connection with each other, and that he is improperly joined with Spears and his sureties; general denial and special defenses.
    May 1§, 1877, the demurrer to the petition was overruled. The cause was submitted to the court and judgment rendered for plaintiffs against Dahoney for $569.22, and ten per cent, interest, and costs in the district court; against plaintiffs in favor of Spears and his sureties for costs, and that plaintiffs pay all costs of suit in the justice court.
    Dahoney moved in arrest of judgment:
    1. For misjoinder as to Spears and his sureties.
    2. Want of jurisdiction of district court; the amount being within the jurisdiction of the. county court.

      3. For matters appearing in the evidence and not necessary to be set out.
    The motion was overruled and Dahoney appealed, assigning errors:
    1. Error in overruling the demurrer of defendant.
    2. Error in not sustaining the plea of misjoinder.
    3. Want of jurisdiction of the district court, by reason of the amount in controversy being only $466, and overruling the motion in arrest of judgment. The other errors cannot be considered for want of a statement of facts duly certified.
    jEl L. Dahoney, for appellant.

      Male <& Scott and B. J. Baldwin, Jr., for appellees.
   A. S. Walker, J.

The demurrer puts in question the right of plaintiffs to satisfaction of their judgment out of the. excess of moneys received by the trustee on his sale under ;the prior lien, and whether defendant is shown to be liable in the action. . '

The right to levy an execution or attachment upon mortgaged property is recognized by our courts. Gillian v. Henderson, 12 Tex., 47; Wooten v. Wheeler, 22 Tex., 338; Belt v. Raguet, 27 Tex., 482; Sayles’ Treat., § 566.

The levy was made subject to the prior incumbrance by the trust deed, and did not in fact prevent the sale by the trustee. ■

Upon the sale, the surplus, after the satisfaction of the mortgage and the attachment lien, followed the funds. Merkley v. Langley, 2 Otto, 142; Olcott v. Bynam, 17 Wall., 63; Purdy v. Doyle, 1 Paige, 557; Burchard v. Philips, 11 Paige, 70.

The property, as alleged, was left in the possession of the constable, who subsequently was present at and assisted in the trust sale, on which was realized an excess, subject to the attachment lien.

The rights of plaintiffs in this fund were denied. .The petition alleges joint acts of the trustee, Dahoney, and of the constable, Spears, in preventing plaintiffs from obtaining such satisfaction; the acts of Spears being also a breach of official duty for which his sureties were bound.

[Opinion delivered April 26, 1880.]

There was therefore alleged a right, its invasion by the joint and wrongful acts of the defendants, and consequent additional and necessary damages. These allegations show a cause of action against appellant, and the demurrer was properly overruled.

2. The plea of misjoinder does not appear to have been called to the attention of the court below save in the motion in arrest of judgment. This motion required an inspection of the record to see if it was so defective as not to support the judgment as rendered. Dennison v. League, 16 Tex., 405.

The judgment having been rendered against plaintiffs for all costs incurred by the suit as against Spears and his sureties, and the litigation thus ending without injury as to Dahoney, the sole question was as on general demurrer and as against Dahoney. The decision of the general demurrer is decisive of the motion in arrest as urged.

3. .The case was by appeal in the district court before the adoption of the constitution of 1876. It was retained in the district court, while the actual recovery was upon a claim, when suit was brought, of less than $500; yet there was a claim for $200 additional as damages, the natural result of the alleged wrongful acts of the defendants. This claim was part of the matter in controversy, and increased the subject of litigation to an amount within the jurisdiction of the district court.

The other matters assigned, and which are discussed in the briefs of the parties, are applicable to matters that can only be presented upon a statement of facts. The merits of the defense are not before us in the condition of the record.

The matters discussed are not grounds for reversal, and the judgment should be affirmed.

Affirmed.


text:
    W. L. Mitchell v. Geo. W. Adams, Jr., et al.
    (Case No. 4066.)
    1. Pleadings—Continuing to make parties.—An answer filed on the day of trial, asking that the heirs of the original grantee of the land in controversy be made parties defendant, comes too late where partition is not sought, nor the heirs shown to have any interest in the land, and there is no direct connection between the heirs and the defendants as warrantors and warrantees.
    2. Jurisdiction —Special judge—Void judgment.—Under article 4, section 14, of the constitution of 1845, where the district judge had been of counsel, and was disqualified, the parties could, by consent, appoint a proper person to try the cause. In a suit by publication, the judge being disqualified, the plaintiff selected a special judge, who proceeded to render judgment by default. The selection by the plaintiff not being an appointment by the parties, there was no jurisdiction, and the judgment rendered in the cause was void.
    3. Minor — Power of attorney of one acting for.— It is not error to exclude a power of attorney when offered in evidence, which purports to have been executed by one acting for a minor, when it ’ does not appear that the minor ever received any benefit from the labor of the agent so appointed.
    Appeal from Ellis. Tried below before the Hon. Geo. ÜST. Aldridge.
    May 4, 1878, Geo. W. Adams brought suit in the district ■court of Ellis county for his one-seventh interest in a tract of one-third of a league of land, patented in the name of his grandfather, B. F. Adams. Plaintiff was joined by his mother and her husband, claiming a life estate in one-third interest of the land sued for.
    The defendants, Mitchell, Davis & Blasingame, pleaded not guilty, purchase of one-third of the grant under a decree for a locative interest in the land, and as to the remainder, purchase under the heirs of B. F. Adams, the original grantee of the land. June 6, 1879, the day of trial, the defendants, by amendment, asked that all of the above named heirs at law of Benj. F. Adams be made parties to this suit, and required to defend their title to the land in controversy. The alleged heirs were named, and their residences given. The answer did not set out the facts of their purchase under or from the said parties. The defendants did not ask partition. They contested the right of plaintiffs to partition and to any interest in the land. - There was a trial June 6, 1879, before the judge without a jury. Judgment for plaintiff for one-seventh interest in the land; and commissioners were appointed to make partition. Defendants filed a motion for new trial, which was overruled, and they appealed. They assign the following errors:
    1. “ The court erred in sustaining the plaintiff’s exception to that part1 of the defendants’ answer praying that the heirs of B. F. Adams be made parties.
    2. “The court erred in holding that the judgment of the district court establishing a locative interest of one-third of the land in controversy was null and void, because B. F. Adams was dead before the institution of said suit. ‘
    3. “The court erred in refusing to allow defendant to read in evidence the power of attorney to Bartlett W. Brown, from the heirs of Benj. F. Adams,, and also in refusing to allow defendant to read in evidence the deed from said Brown to James Hogue, upon the ground -that the plaintiff was a minor at the time of their execution.”
    Other matters are also earnestly and ably discussed in the brief of the appellants.

      A. Bradshaw, for appellants.

      F. N. Read, for appellees.
   A. S. Walker, J.

I. As to the refusal to allow the request of defendants to make the heirs of B. F. Adams parties.

The right was not based upon their having any direct interest in the land; the defense claimed ownership by the defendants. They did not ask partition, but resisted the claim of plaintiffs to recover any of the land; -no partition being asked, they had no right to make the new parties based upon the rule in such cases, that all the co-tenants be made parties; besides the heirs were not alleged to be, at the time, co-tenants in the land.

The pleadings of defendants did not show that the other heirs of B. F. Adams were their warrantors. Ho warranty-can be inferred from the pleadings, save from the effect of the general allegation that the heirs had made a partition of the estate of their ancestor, and that plaintiff had appropriated his share, without giving the details of such partition or stating what the plaintiff had received, or to whom the land in controversy had been allotted.

The common law right of voucher does not exist in Texas (Pas. Dig., 1468), and even with pleadings sufficiently full to show a cause of action against the warrantor, the right to make such warrantor a party, in a case like this, would not be clear. If warrantors at all, they were remote, not being the vendors of the defendants. The intimation by Judge Hemphill, in Garrett v. Gaines, 6 Tex., 446, does not appear to have been followed in the actual practice.

But there being no direct connection between the said heirs and the defendants as warrantors and warrantees, nor any facts showing any interest in them in the land, the answer praying that they be made parties was properly stricken out. They were at most not necessary parties, and as the request to bring them into the case was filed on the day of trial the court could refuse because the application came too late.

II. As to the action of the court upon the effect of the judgment for the locative interest relied upon in defense.

The record does not show upon what ground the district judge disregarded the decree in evidence for the locative interest. The decree bore date December 19, 1856; the suit was styled “The heirs of W. R. Howe, deceased, by their guardian, Guy Stokes, v. Benjamin F. Adams.” In the body of the decree it appeared that the heirs were Mary Jane, Frances Ann and Wm. G. Howe. The decree recited:

“ This cause having been regularly reached on the docket, and the presiding judge of this court having been of counsel for the plaintiff, E. H. Tarrant was selected by the plaintiff as special judge to try and determine the above cause. Whereupon Edward IT. Tarrant took the oath prescribed by the constitution and law of this state as special judge selected under the statute in such cases made and provided. And after having taken the oath as aforesaid, proceeded with the adjudication of the above entitled cause. Whereupon the plaintiffs in the above entitled cause came by their attorney, and defendant, who having been cited by publication as the law directs, as will appear by the return on the original writ made on the 5th day of April, 1855, by the sheriff of Ellis county. And it appearing to the satisfaction of the court that the defendant having been regularly cited as the law directs, and that one term of this court has elapsed since said defendant was regularly cited by publication; and the defendant having failed to appear and answer to the complaint of plaintiff and show cause, if any he could, why the prayer of petitioners should not be granted, on motion of the plaintiff, pray judgment by default against the defendant for the land sued for,” etc. Then follows judgment by default, writ of inquiry, testimony, and decree for one-third of the land, writ of partition, their report allotting the north one-third of the tract to plaintiffs and confirmation of report. Signed by E. H. Tarrant, special judge.”

The plaintiff in this suit had proved that B. F. Adams died in 1843 or 1844, and that, July, 1844, an administration was pending on his estate in the probate court of Robertson county, Texas.

Without expressing an opinion upon the effect upon the proceedings by the previous death of Adams and pendency of administration on his estate, we are of opinion, that the record discloses the want of jurisdiction in the court, for the want of a judge presiding. The district judge had been of counsel and was disqualified. "Under the constitution and laws then in force, “The parties could by consent appoint a proper person to try said case.” Const. of 1845, art. 4, sec. 14; Pas. Dig., 1419.

The plaintiffs selected E. H. Tarrant, who, after being sworn, entered judgment by default against the defendant. This “ selection ” by the plaintiffs was not an appointment by the parties. This defect is regarded as fatal to the jurisdiction, and the court below was not required to give the decree any effect. Lawrence v. Underwood, 1 Tex., 48; Horan v. Wahrenberger, 9 Tex., 319; Castles v. Barney, 34 Tex., 470.

III. The refusal of the court to admit the power of attorney and deed named in third assignment.

The bill of exceptions preserving the action of the court upon those instruments is as follows:

3d. “ The defendants offered as evidence the power of attorney from the heirs of Ben. F. Adams, deceased, to Bartlett W. Brown, dated May 30, 1859, to which plaintiffs excepted, and after argument had, said exceptions were sustained by the court, to which ruling defendants excepted.”

4th. “ The defendants offered as evidence the deed from Bartlett W. Brown to James Hogue, to one-half the land in controversy, dated October 8, 1872, to which exceptions were made, and the court, after hearing argument, sustained said exceptions, to which. ruling the defendants excepted.”

An inspection of the power of attorney shows that in Union county, Arkansas., May 30,1859, “John Q. Adams, W. B. Adams, Alabama Smith, and Wm. M. Smith, her husband, M. E. Hill, and George W. Hammond, as guardian for George W. Adams” (minor heir of George W. Adams, deceased), styled “ heirs of the estate of B. F. Adams, deceased, of Bobertson county, Texas,” empowered Bartlett W. Brown to take possession, lease, sell, etc., all lands of the estate of Ben. F. Adams, deceased, of Bobertson county, Texas. The document is signed by “ G. W. Hammond,” and the others named in the body of the instrument, and was acknowledged in Arkansas before a justice of the peace.

It is not shown upon what objection the document was excluded. It does not appear to have been proven; it was not properly acknowledged for record. “ George W. Hammond,” who purported, in the body of the instrument, to act for “ George W. Adams, a minor,” could not sell the minor’s property, and of course could empower no one else to do so. There is no evidence of any benefit accruing to the minor from the labor of Brown, or any act of recognition of his acts. We could find no error in the exclusion of the power of attorney by Hammond and others when offered as against the plaintiff, who was, as is claimed by the minor, represented by Hammond.

The transfer from Brown was a deed by himself as maker for half of the land, claimed under his contract of May 30, 1859, with the heirs of B. F. Adams. The power of attorney does not disclose such interest, nor would it in any way, whether as the basis of Brown’s interest or as a power to sell, conclude the plaintiff; its exclusion, therefore, was not error.

Other matters are discussed in the briefs, but there are no fundamental errors apparent requiring attention.

The evidence of title in defendants under a power of attorney subsequently made by persons recognized as the heirs of B. F. Adams to Hogan, as to all but the plaintiff, is not disputed. The conveyance under Hogan is for two-thirds of the survey, being that remaining after the locative interest allotted to the heirs of Howe in the decree already noticed, which seems to have been recognized by the other heirs of Adams.

Defendants also show conveyances from the Howe heirs for the locative interest. The owners of the entire interest in the tract of land were thus before the court as parties, so that partition could be ordered.

The testimony shows that plaintiff was born in April, 1855, and was in Texas in 1872, 1873 and 1874, and took some action about his landed interests in Texas. There is contradictory testimony as to bis participation while in Texas in some kind of partition, the terms of which are not shown.

It also appears that he has made transfers for lands since his majority in 1876. The nature of those transfers, as bearing upon or evidencing a ratification of an alleged partition, is not apparent.

[Opinion delivered April 26, 1880.]

But restricting our action to the errors assigned, we find no error requiring a reversal.

The judgment below should therefore be affirmed.

Affirmed.


text:
    C. D. Ward’s Heirs v. A. J. Ward, Adm’r.
    (Case No. 3085.)
    1. Right to sue—Parties.— Title to the property of an estate vests in the heirs, where the estate is vacant, by the removal of the administrator, no debts remaining unpaid by the estate, and they may sue and be sued in relation thereto.
    2. Pleadings—Revising proceedings in administration.— A peti- . tion which seeks to revise proceedings in the administration of an estate is defective unless accompanied by a copy of the proceedings complained of. Pas. Dig., 1382,1383 ; 50 Tex., 598; 44Tex., 133, 539, 573.
    3. Administrator’s bond — Right of heirs to sue thereon.—An administrator’s bond is for the protection of creditors, devisees and heirs, and they have a right to sue for a breach thereof. An administrator da bonis non can only sue for the estate remaining unadministered, as shown by the administrator.
    4. Pleadings — Demurrer.—That an imperfectly stated cause of action is joined with one properly set out is no ground for demurrer to the cause of action well pleaded.
    Error from Lamar. Tried below before the Hon. John C. Easton.
    March 20, 1869, Caroline Coles with her husband Wm. H., Ann, Elizabeth and Allen Ward, and Mary Brown with her husband Peter, as heirs at law of Commodore D. Ward, deceased, brought suit in the district court of Lamar county against A. J. Ward and his sureties, Sam’l H. Williams and Seth Ward, upon the administration bond of A. J. Ward, executed as administrator of the estate of C. D. Ward, deceased.
    The suit as originally brought was in part to set aside some of the proceedings allowing certain vouchers and credits to said administrator in the course of the administration, specified in the petition; and in part for the maladministration of said A. J. Ward in squandering and appropriating certain specified property of the estate, negligent failure to collect claims, etc.
    The defendants demurred and pleaded general denial and special defenses.
    Amendments were from time to time made by plaintiffs, adding to their specifications of property, etc., squandered; adding exhibits of the bond, inventory, return of sales, etc.
    July 16, 1874, the demurrer of defendants was sustained and the plaintiffs again, August 10, 1874, amended.
    The amendment specified more particularly that C. D. Ward died October, 1858; the appointment of A. J. Ward as administrator in 1869; the execution of the bond; return of inventory; that in 1868 the administrator had been removed from the administration; that all the debts of the estate had been paid before the filing of the original petition; that there were no debts owing by the estate; that the deceased died intestate, and that plaintiffs were his heirs; specifying more in detail the articles of property and their value, squandered, lost and converted to his own use by the defendant, A. J.
    Ward, while administrator; that the estate was vacant, and no necessity existed for administration de bonis non; refusal of Ward to settle; and carefully withdrawing all previous allegations attacking the orders and proceedings in the administration.
    The defendants demurred specially to the petitipn as amended, because not accompanied by a copy of the proceedings had in the probate court. .
    The exceptions were sustained, and plaintiffs declining to further amend, judgment final was rendered for defendants.
    The plaintiffs brought up the case by writ of error, alleging as errors:
    1. Sustaining the demurrers, general and special, of defendants to the petition; and
    2. Eendering judgment for defendants.

      B. F. Fuller, J. B. Davis and W. II. Johnson, for plaintiffs in error.

      V. W. Hale, for defendant in error.
   A. S. Walker, J.

The only question in the' case is whether there is a cause of action contained in the pleadings of the plaintiffs.

1. The plaintiffs showed a right to sue. It was alleged that the estate was vacant by the removal of the administrator; that there were no debts owing by the estate; and that they were heirs of the intestate. Upon such state of facts the estate vested in the heirs.

2. The petition, so far as it sought to revise proceedings in the administration had in the probate court, was defective for the reason given in the exceptions urged. To that extent the demurrer was properly sustained. Pas. Dig., 1382, 1383; 50 Tex., 598; 44 Tex., 133, 539 and 573.

3. The breach of the bond alleged, in the most part of the particulars in the allegations relied on as a breach, was one of which creditors, devisees and heirs alone could complain. Johnson v. Hogan, 37 Tex., 80. The bond is for the protection of creditors, devisees and heirs. An administrator de bonis non could not sue except for the assets remaining unadministered, as shown in the administration. The right of the heirs to sue would follow*their right to the possession of the property of the estate. The trust in the administrator created by the proceedings in administration having been executed, the estate being vacant, the property constituting the estate again vested in the heirs without incumbrance; vested in them the right, carried the legal remedies; and the right to call in question all the acts of the trustee which had not been sanctioned by the action and approval of the probate court in the progress of his administration. The bond was for the purpose of enabling those entitled to the estate to have satisfaction for breach of duty, and the right to sue is expressly given to the heirs. Pas. Dig., 1375.

4. That an imperfectly stated cause of action was joined with the suit for breach of the bond (in squandering the assets, etc.) is no ground for demurrer to the cause of action well pleaded. Edgar v. City of Galveston, 46 Tex., 428. Especially is it so when by amendment the former is abandoned. There is no inconsistency in the facts as given under the two causes originally joined in the suit. We are not called on to say whether they were improperly joined. The defect was cured.

[Opinion delivered May 31, 1880.]

As the case should be reversed, it may be well to suggest that, before another trial, the district court should require the plaintiffs to replead,-—collecting into the amendment all their allegations, omitting, however, all that relate to the attack upon the administration proceedings had in the probate court.

The demurrer was improperly sustained, and the judgment below should be reversed.

Beversbd and remanded.


author: Walker, P. J.

text:
    H. R. Mitchell v. J. C. Nix.
    (Case No. 3638.)
    1. Pre-emption — Vacant land — Agreed line.— Two settlers on vacant land agreed, before a survey was made, on a dividing line, on the faith of which both improved their respective selections. One of them verbally sold his improvements, tlie other at the time representing to the purchaser that he did not claim any of the land sold. The one who did not sell agreed with the purchaser that all the vacant land should be surveyed in his name, he to convey to the purchaser all the land included in the survey, situated on the purchaser’s side of the agreed line, when patented, the purchaser to pay his share of the expenses; under which agreement the purchaser continued to improve the land occupied by him and offered to pay his part of the expenses. One to whom the land was after-wards patented, and who had notice of the agreements concerning it, cannot recover from the first purchaser the land on which he has his improvements, and which he was to have by the agreements concerning the division line, survey and patent.

      2. Pre-emption—Homestead — Husband and wife.—As the head of the family the husband has the right to select the domicile; but as a pre-emptor, he has no vested right in vacant land settled upon by him, until he has lived on it the length of time required by law to obtain a patent, and he may sell or make agreements concerning it without being joined by his wife. Hntil he is entitled to a patent there is, no vested homestead right in land so occupied by him, and he may agree to the appropriation of it between himself and another.
    Appeal from Cooke. Tried below before the Hon. A. J. Carroll.
    This was an action of trespass to try title brought by the appellant for a tract of one hundred and sixty acres of land patented to him as the assignee of A. G-. Harris, granted by virtue of the pre-emption laws in right of the pre-emption claim and occupancy thereof by Harris; said Hams being a married man, entitled to the benefits of the pre-emption laws.
    The defendant claimed a portion of the land by a designated specific boundary line, amounting to about one hundred and thirty acres of land, embracing his improvements, in right of the pre-emption claim and rights of one E. S. Johnson, also a married man, and who had settled upon the land as a pre-emptioner, and who had sold to this defendant (appellee) his right, together with his improvements. The answer alleged that Johnson settled upon the land as vacant public land, July, 1872; that it was then, in fact, unappropriated public land subject to appropriation under the pre-emption laws; was then a married man and head of a family, entitled to a pre-emption; thereupon began in good faith to improve the land by erecting cabins, building fences, lots, cribs, and to break and inclose land, and to make other necessary and permanent improvements thereon, residing with his family thereon until about 30th day of June, 1874, when he sold the preemption claim and the improvements thereon to defendant for the sum of $200, which was paid by defendant to Johnson. Defendant alleged that, at the time of the settlement by Johnson, it was the avowed and well known intention of Johnson to have a hundred and sixty acres of the land, including his improvements thereon, surveyed for him under the pre-emption laws of the state, all of which was well known to Harris, who was also a pre-emption claimant, and who had settled at a point at about the north boundary line of the land which was claimed by the plaintiff under and through the patent of A. Gr. Harris, which includes the same; and that Harris then represented to Johnson that the pre-emption claim of him (Harris) would not include any part of that intended to be appropriated by Johnson, and thereby induced the latter to make his improvements thereon, and otherwise induced and encouraged him to expend his time, labor and money, of great value, to wit, $200, in permanently bettering the land sued for, all the while representing to Johnson and to' others that it was not a part of the land intended to be appropriated by him (Harris), who was then improving land entirely north of and adjacent to the land sued for, and which was then believed by Harris, Johnson, and by others in the neighborhood, to be vacant public land, but a part of which afterwards proved to be already appropriated, including nearly all of the improvements of Harris.
    It is further alleged in defendant’s answer, that, at the time of the settlement of Johnson on the land in question, Harris claimed,— and it was then and there agreed between him and Johnson,— and from that time it was the understanding and agreement between Harris and Johnson, and between Harris and the defendant, that the south boundary line of Harris’ pre-emption should be defined as follows, viz.: “ That a stream called Mountain creek, which enters the survey sued for by the plaintiff from the west, at a point near midway between its southwest and northwest corners, and runs westerly to near the center of said survey, as now made, whence it curves and runs in a more northern direction, and the said stream running through the same, as the dividinof line between the said E. S. Johnson and the said O A. G-. Harris, from the west boundary of the same, thence' east with the said stream to a cottonwood in the bend of said creek, and that from said bend thence eastwardly to the east boundary line of said land at or near a forked black jack on the hill.” That it was agreed between said parties that the dividing line between them should be continued down Mountain creek from the western boundary to the cottonwood at said bend, thence due east to the east boundary line, at or near said black jack, as it was then suppqsed it would reach the same.
    Defendant alleged that, up to the time when he had bought and removed upon the pre-emption claim of Johnson, both parties acted upon the above agreement concerning the boundary line of their respective pre-emption claims, and regarded it in good faith; and that Johnson continued to improve his part of the land, and that the defendant purchased from him with a full knowledge of all the facts and with the consent of Harris that defendant should be substituted to all the rights of Johnson under the agreement; that defendant, acting upon the understanding thus had between the parties, the division line being pointed out to him by both parties, paid Johnson $200 for his improvements, and he continued to put other and valuable permanent improvements on the land in good faith of the value of $500, and has continued to reside on, cultivate and improve the same from the time of his purchase until the institution of the suit.
    Defendant further alleged that after the boundary line had been agreed upon, it was discovered by the parties that a large portion of the land supposed to be vacant and to be included within Harris’ pre-emption was appropriated by other surveys, whereupon it was agreed between Johnson and Harris that, for convenience and economy, they would have both their pre-emptions included within the same survey to be made by and in the name of either of them as convenience suited, and that after the same was patented they would divide the same on the same line agreed upon, and the expenses of surveying and patenting according to equity. That at divers times after defendant removed upon said pre-emption, and before the survey and patenting, Harris and defendant made the same agreement. That relying upon the good faith of Harris, defendant consented to a surrender of all pre-emption claim acquired either by himself or Johnson on that portion of the land lying north of the line agreed upon by Harris and Johnson, and he took no steps to secure the same to himself. ■
    That in pursuance of such understanding, Harris surveyed in the land and improvements of the defendant, agreeing to convey the same, with the land claimed by defendant, to him whenever the defendant should demand a deed therefor, and tender Harris one-half of his reasonable expenses in surveying and patenting. That after Harris had procured the survey of the land and the patent thereon, in fraud of the rights of the defendant, he attempted to convey away the whole of the land to plaintiff, including the house and improvements thereon made and bought by defendant. The answer charged that the plaintiff took or acquired the land .with full knowledge of all the facts, and that defendant with his family resided thereon, and was claiming the same as a. pre-emption under the agreement as to the boundary before stated. The answer disclaimed all claim or right to any part of the pre-emption survey lying north of the boundary line, prayed to be quieted in his possession of the land claimed by him, and for general relief. By an amended answer defendant alleged all the material facts essential to entitle Johnson to the rights of a pre-emptioner at the time of defendant’s purchase, and that, relying upon the contract between Johnson and Harris in regard to the surveying and patenting, he, defendant, took no steps to perfect his title by filing upon the land and having it surveyed until about the 8th day of February, 1876, when, learning that Harris was seeking and intending to violate his contract by appropriating all of the land to himself, and refusing to convey to him, in accordance with the contract, his, defendant’s, part of the land, he made his file upon the land and requested the surveyor of' Cooke county to survey the same for him as a pre-emptioner, and tendered him all necessary fees, who refused to survey it because it was covered by the survey of Harris. That so relying upon the good faith of Harris, defendant not only permitted him to have the land surveyed in his own name, but he expended labor and money upon his part of the land after it was surveyed, by erecting valuable and permanent improvements thereon," which was done with the knowledge of and without objection from Harris, he knowing, too, at the time, that the defendant was claiming the land and was expecting him to convey his portion of the land to him, as soon as a patent was procured. The amendment alleged that a patent had issued to the plaintiff as assignee of Harris, but that neither Harris nor the plaintiff had made or offered to make a conveyance to him. In a separate answer the defendant suggested improvements, good faith, etc., with prayer to be allowed their value. Defendant alleged a tender of his part of the expenses of surveying, patenting, etc., and tendered the money into court.

      W. A. Davis, for appellant.

      G. G. & G. L. Potter, for appellee.
   Walker, P. J.

This cause was submitted to a jury, under a charge of the court, which in effect maintained, as a legal proposition, that the facts set up by the defendant’s answer constituted a valid defense to the plaintiff’s action. The evidence relating to the main facts of the defense was conflicting; the verdict of the jury was rendered for the defendant, and there was ample testimony to support it; indeed, the preponderance of the evidence may be fairly said to be in favor of the verdict. It was the peculiar province of the jury to weigh the evidence and to judge of the credibility of the statements of all the witnesses. The court refused to grant a new trial, and, therefore, so far as concerns the facts, we will not consider them otherwise than as being determined by the verdict of the jury; and the only questions left properly for our consideration are involved in the inquiry whether there was or was not error in the charge given by the court, or in the refusal of the judge to give instructions asked for by the plaintiff.

The appellant’s first assignment of errors is as follows, viz.: The land in question being the homestead of A. Gf. Harris, the court erred in holding, in the charges given and refused, that said Harris could, without the consent of his wife, confer a right or title to any portion of said land upon defendant J. C. Nix.” Although this assignment is succeeded by six others specifically referring to the above charge of the court given, pointing out the objectionable portion thereof, and doing likewise in respect to the particular instructions which were refused, it is believed that a due consideration of the merits of this, the first assignment, and the legal proposition involved in it applicable to the facts of the case, will properly dispose of this appeal, and sufficiently embrace all that need be said in respect to the other assignments of error.

The charge of the court maintained the validity of agreements made between A. Gr. Harris and E. S. Johnson, and between said Harris and the defendant, as set forth in the pleadings and shown in the evidence, and as being binding upon said Harris, and that if such agreements were made, such boundary lines established, under such understanding as alleged with respect to the patenting of the land to inure to the mutual benefit of the respective pre-emptors as claimed by the defendant, and if the said agreements had been acted upon as alleged, that such contracts would be enforced beneficially to the defendant, and that the plaintiff could not recover. The charge further, in effect, maintained that if the agreement between Harris and Johnson was conditional in respect to the boundary or division lino, and was only to have been observed and carried out (as the plaintiff insisted) on the condition that Harris could obtain a sufficiency of vacant land to give him one hundred and sixty acres north of said line, and, failing therein, that he should have the privilege of going south of said line to make up his complement, and that after Johnson had removed off from said land that the said Harris had his survey made including the land in controversy, and that Harris had lived upon said land for three years prior to the date of the agreement between Harris and the defendant Mix, in respect to the contract of patenting for their mutual benefit, that in such case the homestead right would have vested in Harris and wife, and that her conveyance and acknowledgment thereof would be necessary to divest the plaintiff, and the defendant could not recover. Under the facts evidently Harris had not lived upon the land for the period of three years prior to the date of the supposed agreement between Harris and Mix above referred to, and this view of the law applicable to the plaintiff’s case could not enable him to recover. The instructions asked by the plaintiffs, and which were refused, presented the counter view of that proposition, to this effect, viz,: “If you should believe from the evidence that the agreement between Harris and Johnson was conditional, and that the land claimed by Mix was only to be the line between Harris and Johnson in the event that Harris could obtain one hundred and sixty acres north of the said line, and that after Johnson moved off the premises, and before Mix moved on the land, Harris had his survey made, then the one hundred and sixty acres mentioned in the field notes belong to Harris, and any contract afterwards made between Harris and Mix, unless in writing, signed by Mrs. Harris, would be a nullity, and would confer no right upon Mix. ... If Harris was a married man and had a right to one hundred and sixty acres prior to Johnson, then Harris could not by his own agreement deprive himself of any part of the one hundred and sixty acres of land he was entitled to under the law; said land would be the homestead of Harris, and he could not, while living on it, dispose of any part of the land without a deed in writing in which his wife joined.”

The other instructions asked by the plaintiff presented the same question in other language and phases, but they need not be stated with further elaboration.

The eighth and last assignment of errors is, that the verdict of the jury is contrary to the law and the evidence; the proof showing that the land was the homestead of A. Gk Harris, and that he was not joined by his wife in any contract made by him with defendant Mix or Johnson.

The legal questions upon which the case is made to depend, according to the presentation of it under the assignments of error, involve two propositions, viz.:

1st. Where two married men, each entitled to a preemption of one hundred and sixty acres, settle upon vacant public land with the intention of perfecting their rights thereto; establish a boundary line between their respective settlements before a survey has been made, and in ignorance of whether there is a sufficiency of vacant land to satisfy both claims, on the faith of which both parties cultivate and improve their respective selections; and where one of said parties verbally sells his improvements and claim to a third person, and the other pre-emptioner, at the time of the sale, representing that he did not claim any of the land embraced within the boundary line claimed by the said vendor; and where the purchaser was induced to make the purchase by reason of such representations; and that afterwards the other pre-emptioner, who had not sold, procured all of the land to be surveyed in his own name as his pre-emption claim, under an agreement with said purchaser that he would convey to him, the said purchaser, all the portion of the land thus purchased by him situated within the line which had been agreed upon between the aforesaid two pre-emptioners, whenever he should procure title upon the same; said purchaser to pay the expenses of procuring the title; said proposition being accepted, and the purchaser induced thereupon to make permanent and valuable improvements on said land thus stipulated to be conveyed; and that after the title was obtained, said purchaser tendered the amount of said expenses according to the terms of the offer,— on that state of ‘facts, can the original grantee of the whole tract, or his assignee, acquiring the patent as assignee, with full knowledge at the time of the transfer to him of all these facts, recover from said purchaser of the said improvements and claim that portion of the patented land which was thus agreed to be conveyed to him when the patent should be issued? The court charged the jury that the plaintiff, under such state of case,,could not recover; which proposition is embraced in the fourth paragraph of the charge of the court, and the appellant assigns the giving thereof as error.

The remaining question is whether, at the time of making said agreement thus to convey to the said purchaser, the wife of said pre-emption grantee had such a homestead right in the land as to render the agreement invalid without her consent, properly expressed in writing, under the forms of law requisite to divest her thereof.

Harris and Johnson went on the land together, with like intentions of appropriating one hundred and sixty acres of land for the benefit of each of them as homesteads; without definite information as to the extent of public land in that locality to satisfy the expectations of both, they were satisfied to mutually act upon the assumption that this was at their several respective risks by a satisfactory conventional boundary line, which both bound themselves to respect in making their surveys, and it was not known to the disadvantage of which one of them, if either, such disposition of the land, as between themselves, would result in. Upon the faith of it, in good faith, both expended time, labor and material in building houses, fences and other improvements, and in the cultivation of the soil, thereby entitling themselves, in the letter apd spirit, to the bounty of the government. After a time Johnson leaves his improvement for a few months, and again returns to it, and continues his course of life there as a settler as before. In the mean time no intimation is given of any probable deficiency of vacant land to enable the parties to secure their respective settlements of one hundred and sixty acres each, nor does either party procure or seek to obtain a survey of either allotment, nor any other steps taken by designations of filing, making declarations of intention with the surveyor or other action contemplated to be taken in order to secure any specific lines or boundaries of the land in question. Harris and Johnson remain thus living close neighbors, evidently contentedly relying each on the good faith of the other in respect to the observance of the agreement that Harris’ land, when it should be run out or surveyed, should lie north of the agreed line, whilst Johnson’s should lie south of it, let the result as to the advantage to the one or the other turn out as it might. In this condition of things, Johnson sells his improvement and claim to defendant J. C. Nix, who purchases with full knowledge of all the facts, and with affirmance by Harris, made to him at the time of the sale, of the agreement respecting the boundary line between the actual improvements, and which was destined to be the line dividing the prospective titles, at that time in process of formation. The sale, although a verbal one, was valid. Bledsoe v. Cains, 10 Tex., 455; Fowler v. Allred, 24 Tex., 186. Nix succeeded to the rights of Johnson. If, however, he failed to become an actual occupant of the land, it would be subject to pre-emption by another; and, doubtless, if Nix abandoned the land, or failed to remain upon it as an actual occupant, thereby rendering it vacant and unappropriated, Harris would not, in such case, hold the same in trust for him by virtue of said agreement in respect to the boundary, and Harris being thus discharged from the obligation which he had been under to observe towards Johnson, his possession would operate to give him exclusive pre-emption rights to the entire tract, and the assignee of Johnson could not again enter as a pre-emptionist, except in subordination to the superior right of Harris. Cravens v. Brooke, 17 Tex., 274; Jennings v. Cordova, 20 Tex., 513. Yet, in the application of this rule to the evidence, it might nevertheless be a disputable fact, whether, in contemplation of law, the defendant Nix did not immediately succeed to the possession of Johnson as an occupant of the land, in February, 1874, when he purchased, and that his subsequent absence from the land until the fall of 1874 did not constitute an abandonment, nor be construed against him as amounting to non-occupancy of the land.

A temporary absence on business, or on a visit to friends and relatives, will not constitute an abandonment of a preemption claim. Bledsoe v. Cains, 10 Tex., 459. The appellee testified that he did move some of his things to the improvement at once after the purchase, and intended to move on the land when he bought it, but on account of sickness did not get his family moved on the place until the latter part of the year 1874. A continuous and uninterrupted possession by the defendant, thus preserving the integrity of the claim and right of his vendor, would doubtless support a claim to an equitable partition of the land whenever it should be patented, based upon the agreement thus made by joint pre-emptioners, who had thus agreed to appropriate tracts of land contiguous to each other, and which were to be distinguished by a dividing line agreed upon between them, even though the patentee had attempted, by procuring a patent to the whole, to disregard the rights of his neighbor. It is not clear that, even under the strictest view which may be taken of the defendant’s rights under the terms of the preemption law, he may not be entitled to the protection which the verdict of the jury has sought to afford to him. Upon the application of the law governing pre-emption rights, it may be very questionable whether the defendant can claim any part of the land as against the plaintiff in right of his pre-emption claim and purchase from Johnson. However that may be, the merits of the defendant’s case are presented under the facts, upon principles of equity, justice and right, far broader and more comprehensive than those which may be considered within the narrow range of the statutes regulating the subject of pre-emptions. They are involved in the principles applicable to contracts to convey lands generally, and by the rules of law which exact good faith, fair dealing, and require that a man shall so use his own as not to injure another’s, and by maxims whose operation estops him from inducing a confidence whereby another expends his means and labor, only to betrajr it.

The defendant shows the purchase of the improvements and pre-emption claim of Johnson, with full knowledge on the part of Harris that he did so for a valuable consideration, and upon a well-founded belief, induced by the affirmation of Harris himself, that no conflict could arise respecting the boundaries of the two pre-emptions, and that he had no claim and would interpose none incompatible with the boundaries of Johnson’s pre-emption. After making said purchase, Harris made a contract with him, founded on a sufficient consideration moving to each party, whenever a title should be obtained from the government by patent to either of the contracting parties, that a conveyance should be made by the patentee to the other of the land to which he should be entitled according to the aforesaid agreed boundary line. Such a contract for the conveyance of land, if it were in writing, in the form, for instance, of a bond for title, would be certainly enforceable as a legal, valid contract. It would afford a safe reliance for a title, and when the obligee became entitled under it to a deed, such a bond would serve him as a good equitable, in default of obtaining the clear legal, title by deed. The case is not altered in result because the contract was by parol, when considered in connection with all the other facts, notwithstanding that such parol contract is within the statute of frauds. “ Courts of equity will enforce a specific performance of a contract within the statute where the parol agreement has been partly carried into execution. The distinct ground upon which courts of equity interfere in cases of this sort is, that otherwise one party would be enabled to practice a fraud upon the other; and it could never be the intention of the statute to enable any party to commit such a fraud with impunity. Indeed, fraud in all cases constitutes an answer to the most solemn acts and conveyances; and the objects of the statute are promoted instead of being obstructed by such a jurisdiction for discovery and relief. And where one party has executed his part of the agreement in the confidence that the other party would- do the same, it is obvious that, if the latter should refuse, it would be a fraud upon the former to suffer this refusal to Vorle to his prejudice.” 2 Story’s Eq. Jur., sec. 759. Especially will it be held to take a case out of the statute under a parol contract to convey lands, where the party let into possession under it has expended money in building, or repairs, or other improvements; for under such circumstances, if the parol contract were to be deemed a nullity, he would be liable to be treated as a trespasser; and the expenditures would not only operate to his prejudice, but be the direct result of a fraud practiced upon him. 2 Story’s Eq. Jur., sec. 763, and authorities cited. Chancellor Kent says: Such a resort to equity is addressed to the sound judicial discretion of the court. . . . The court will always have an eye to the substantial justice of the case. . . The ground of this interference of chancery is fraud, in resisting the completion of an agreement partly performed, and which part performance would work a fraud upon the party unless the agreement was carried into complete execution. What facts will amount to a part performance sufficient to justify the interference of chancery depends upon circumstances. Generally, it may be observed, that delivery of possession is part performance. So the making of beneficial improvements on the land may be taken for part performance.” 4 Kent’s Comm., 451. See, also, Dugan v. Colville, 8 Tex., 126; Ottenhouse v. Burleson, 11 Tex., 87; Johnson v. Bowden, 37 Tex., 624.

It would not b.e easy to imagine a case more fitting for the application of the foregoing principles of equity, supported as they are by sentiments of such exalted justice, than this now before us.

If the plaintiff may successfully resist the claim of the defendant for a specific performance of his agreement to convey, he will have succeeded not merely in diverting the state’s bounty from one equally entitled to it upon precisely the same services and considerations rendered, and securing it wholly to himself, but he will also have increased the value of his unjust gains, by obtaining, by fraudulent practices and covert concealment of his designs, the toil and labor and capital of his confiding neighbor, who had trusted to his honor. No such transaction can stand in a court of equity.

The next, and only remaining question, has respect to the homestead right of the wife, as has been stated.

No right in the land, other than an inchoate interest, subject to be perfected by three years’ occupancy and otherwise complying with the law, is acquired by a pre-emptioner, until such period of time shall have elapsed as entitles him thereto. A pre-emptor has no vested right to, or fixed and definite interest in, land which he has settled on, until he shall have occupied the same for three years; and a sale by him at any time before he shall have thus become entitled, or shall have acquired such vested right, will not carry with it a vendor’s lien to secure the price or purchase money. Palmer v. Chandler, 47 Tex., 332. At the time, then, that Harris contracted to convey to the defendant NTix the title to the land, he had no other than an inchoate or rudimentary title, but no vested right to, or definite interest in, the land; a sale or conveyance made by deed from himself, joined by his wife, would have vested in the purchaser no greater right than they possessed, viz., a right to occupy the land and complete the title by compliance with the preemption laws. There was no alienable nor vendible homestead right in the land, which could be reached by execution ; the soil belonged to the state, and a purchaser of it at sheriff’s sale, made under execution, against Harris, would not have conveyed any title, legal or equitable, which could have been made available to the purchaser, unless by his occupancy of the land as a,settler, complying with the law of pre-emption. As against creditors the homestead is exempt from execution, irrespective of the character of the title as to its relative strength or weakness; so far as creditors are concerned they have no interest in the subject-matter; it does not concern them whether the homestead of a debtor is held by a perfect or an imperfect title; it is sufficient for them to know that the homestead quality that attaches to the debtor’s domicile exempts it from execution. But there are other classes of persons who may possess not merely equal interests with the occupants of the land claimed as a homestead, but their rights to or in it may be superior and paramount; as, for instance, the vendor of the land, or one having a superior legal or equitable title to that held by the homestead occupants, or one who may possess any other equity in the land superior to that of the possessors of the homestead premises. “Certainly,”said Chief Justice Moore, in Smith v. Chenault, 48 Tex., 462, “ a man cannot acquire a homestead right to land that he doss not own; nor will the bare fact of the owner consenting to the occupancy or settlement by another upon his land prevent its being sold for the payment of his debts.”

Harris and his wife, therefore, had not acquired a homestead right against the owner of the land, which was the state of Texas, at the time of the contract and agreement made between Harris and the defendant; three years’ occupancy by Harris and wife had not transpired at that time. The homestead right to and in the land was then in expectancy, the title thereto merely in fieri. It was competent for Harris, as the head of the family, to direct the selection and locus of his habitation and domicile; “the husband chooses and establishes the homestead ” (Holliman v. Smith, 39 Tex., 357); and as the head of the family he can contract with reference to the acquisition of lands, and agree to the appropriation of public land between himself and another, as was done by him with the defendant; and there being no vested nor acquired homestead right then existing, the defendant would not be prejudiced by the ultimate and intended destination of Harris’ interest to homestead purposes; the equities of the defendant would be protected. “Ho subsequent destination or occupation of premises which have been incumbered by the husband prior to such destination can give to the mortgagor or his family such a homestead in the specific property incumbered as would defeat such incumbrance.” Mabry v. Harrison, 44 Tex., 287.

The wife of Harris acquired no special homestead rights to the land because of the claim being made under the preemption laws, which are designed mainly to secure to families homes and homesteads; for, as a general rule, the wife will not be permitted to make the oath required by the preemption laws to perfect and secure a pre-emption claim. Allen v. Harper, 19 Tex., 501. The nature of the claim to the land does not essentially vary the ordinary principles of law applicable to the acquisition of homestead rights in lands generally.

“ The wife’s interest in the community property is held in privity with the husband. The power of the husband over the community estate by estoppel is not less than that of a partner to estop his firm.” Eanney v. Miller, 51 Tex., 264. “It has long been the settled doctrine of this court that a homestead is not acquired against parties holding prior equities and incumbrances, until the title to the land on which the homestead is sought to be established has been perfected by the payment of the purchase money, and that all liens accruing before the homestead has been established must be raised, or it will be subject to forced sale. As against homestead rights, in the absence of fraud, the husband has the right to renounce lands incumbered to the holders of such liens.” Clements v. Lacey, 51 Tex., 151.

Chief Justice Hemphill, in White v. Shepperd, 16 Tex., 172, said, in regard to the restraint of the husband to dispose of the homestead without the wife’s consent, “this restriction applies where the husband has acquired full property in the land, and not where it is charged with preceding equities or incumbrances. These must be discharged, and they have precedence over the rights of the homestead privilege; and the right of the husband to make arrangements in relation to these incumbrances, or to renounce lands thus burdened or subject to conditions and contingencies, could not be questioned by the wife, in virtue of her remote right which might arise if the incumbrances or conditions were ever discharged or removed, unless in cases where the husband is squandering the property, with the fraudulent design of depriving the wife of a homestead.” See, also, Meyer v. Claus, 15 Tex., 516; Farmer v. Simpson, 6 Tex., 303; George v. Thomas, 16 Tex., 89. The ready application of these principles to the facts of this case are too apparent to require argument or illustration. The wife of Harris had no such homestead rights in the land as to render her consent in writing, or her consent in any other form, essential to the validity of the contract between her husband and the defendant. It was a valid contract, and the performance of it by the defendant gave him equities that will be protected as against Harris and his assignee with notice of them. The plaintiff, when he comes into a court seeking right, himself must do it; if he seeks equity, he must do equity. He now claims the whole tract of land, including the improvements which were placed there in the confidence of the observance of good faith in the. agreements made from the period of the primary settlement by Johnson down to the date of Harris’ effort to disclaim his contract, inducing Johnson to improve the land under an express agreement as to boundaries; encouraging the defendant to do the same by ratifying his former agreement with Johnson, and standing by, witnessing and encouraging the defendant’s expenditure of labor, time and money, under a contract to convey to him the land whenever he should obtain a patent. He is entitled to no relief.

[Opinion delivered May 31, 1880.]

There was no error in the judgment which was rendered, and it will be affirmed.

Affirmed.