text:
    S. C. McReynolds et als. v. S. Bowlby et als.
    (Case No. 3057.)
    1. Peters’ colony, land granted in—Separate property of the husband.— Land acquired by a surviving husband under an act of the legislature granting land to settlers in Peters’ colony, passed after • the death of the wife, is the separate property of the husband, and the children of the deceased wife have no interest in it, the wife'having died before she or they possessed either a title to the land or any rightful legal or equitable claim against the state for it.
    Appeal from Collin. Tried below before the Hon. W. H. Andrews.
    The opinion states the facts.

      R. Maltbie and Jenkins <& Ooodner, for appellants.

      Throckmorton, Brown db Bro. and J. R. Burns, for appellees.
   Walker, P. J.

This suit was instituted by S. C. McReynolds, the appellant, against the appellees, in form of an action of trespass to try title, on the 9th day of May, 1874, to recover six hundred and forty acres of land situated in Collin county and described by metes and bounds.

It- was averred in substance in the petition that appellant’s ancestors, J.. M. McReynolds and his wife, Eliza A. McReynolds, as husband and wife, emigrated from the state of Arkansas to Texas in the year 1843, and settled the same year in Peters’ colony on vacant land, which was the land in controversy, in the limits of what is now Collin county; that they made improvements on the land required by law of colonists in order to entitle them to a certificate, and continued to reside on it until the spring of the year A. D. 1849, when they removed a short distance to the house', of J. M. McBeynolds’ mother, but continued to exercise acts of ownership over the land until the death of Eliza A., in the fall of the same year, and that J. M. McBeynolds from that time on continued to exercise acts of ownership over the land; that a certificate was issued to him, by authority of the state of Texas, for six hundred and forty acres of land, on the- day of -, A. D. 185-, on. account of his immigration to and settlement in Peters’ colony, as the head of a family, prior to the 1st day of July, A. D. 1848, and his residence therein the required time, and that he located the certificate for six hundred and forty acres of land upon the identical land settled upon by himself and Eliza A.; that a patent to the land was issued to him by the state of Texas on the-day of-, A. D. 1854, five-twelfths of which appellant claimed as heir of his mother, Eliza* A., as heir of his deceased sister, Cornelia, and as assignee of Fanny M. Farris and her husband, J. L. Farris.

James M. McBeynolds (joined by his second wife), plaintiff’s said father, conveyed one-half of the land to Beese P. Murray on the 15th of September, 1854, and they conveyed the other half of said tract of land to S. Bowlby on the 4th day of February, 1857. The defendants claim through these two conveyances, either directly, or derivatively through said James M. McBeynolds, who conveyed as aforesaid by deeds of warranty. The defenses set up by the defendants were that:

1st. The land sued for was never the community property of J. M. McBeynolds and the mother of the appellant.

2d. If it was ever the community property of J. M. and Eliza McBeynolds, that S. C. McBeynolds and his sister, Mrs. Farris, received from the estate of J. M. McBeynolds other property in lieu of their interest in it.

3d. That appellees hold under a warranty deed from J. M. McBeynolds; and.as his heirs, S. C. McBeynolds and Mrs. Farris have received property to an amount greater than the value of the property claimed by them in this suit.

4th. That the plaintiff is barred by limitation.

5th. That the matters have been adjudicated in another ■suit between the parties.

It was agreed at the trial that James M. McReynolds and Eliza McReynolds were married in 1842; that S. C. McReynolds, Fanny M. Farris and Cornelia M. McReynolds were the only children of that marriage; that Eliza McReynolds died in the year 1849, leaving said children her only heirs at law. That Cornelia died 17th February, 1853, ■leaving her father, J. M. McReynolds, and S. C. McReynolds and Fanny McReynolds, brother and sister of the whole blood, and George D. McReynolds, brother of the half blood, her only heirs at law.

That James M. and Eliza McReynolds, as husband and wife, emigrated to Peters’ colony as colonists and settled ■upon the land in controversy in October, 1843, and continued ■to reside upon the same until February, 1849, having made the improvements required by the colony contract, when they removed to the residence of Mary Standifer in McKinney, but still holding and claiming said land, when said Eliza died in April, 1849.

Also, that the certificate afterwards obtained by James M. McReynolds was applied to the said section of land, and that ■the patent issued in his name, dated 11th day of May, 1854.

It was further agreed that the land in controversy was an even section, being section 22. Also, that at the sale to Reese P. Murray there were no improvements upon the portion conveyed to them. That Mary Ann Carr was the ■surviving wife of said Murray; that he died leaving no children; that his said widow afterwards marriedR.B. Carr; ■that she died on 31st December, 1873, leaving defendant R. B. Carr, her surviving husband, and Lee and Lou Carr, her only children and heirs at law. That the defendants and R. P. Murray went into possession of said land immediately after making said purchases, and have continued in possession to the institution of this suit. That R. P. Murray and S. Bowlby each paid the purchase money to J. M. McReynolds, and that defendants and R. P. Murray have paid all taxes assessed against the land since their purchase.

That plaintiff, S. C. McReynolds, was born on the 7th of May, 1848, and Fanny M. McReynolds (Mrs. Farris) was born on the 10th of November, 1843; that she intermarried with-Looney in the year 1864, was divorced from him in 1865, and married J. L. Farris on the 1st of October, 1866.

The cause was submitted to a jury; there was much testimony adduced in addition to the facts agreed to, bearing mainly upon the second, third and fifth grounds of defense, which have been heretofore specified.

Several bills of exceptions were taken by the plaintiff to the rulings of the court on questions of evidence which arose during a protracted trial, and also a bill of exceptions, which excepted to the entire charge of the court as given, except certain instructions which he had asked and were given; it also excepted to the refusal of the court to give one of the instructions which plaintiff asked to be given, and which the court declined to give. The instruction asked for by plaintiff and given embraces about one page of the transcript, to which, of course, no exception is taken; the remainder of the charge given, and excepted to, constitutes the bulk of the judge’s charge, which embraces elaborate and detailed instructions on every branch of the case, and is quite lengthy. The giving of these charges asked by defendants, and refusal to give that one asked by plaintiff and refused, is assigned as error. Counter instructions were not asked by the plaintiff, nor grounds of exceptions specified in the bill of exceptions or assignment of errors, pointing out defects or errors in the charge.

Verdict and judgment for the defendants; motion for a new trial filed by the plaintiff, which was overruled, and he appealed to the supreme court.

The assignment of errors presents fully, for revision, the ruling of the court which overruled the plaintiff’s exceptions to the amended answer of the defendants, setting up the aforesaid defenses;"and it presents points made on exceptions to rulings on questions of evidence, that the court erred in giving the charges and refusing to give the charge before referred to, and in refusing to grant a new trial; also that the verdict was against the law and the evidence.

In respect-to the errors complained of in the charge of the court we do not deem it necessary to consider them for the want of a proper assignment. “ Where the assignment of errors indicates no particular charge or ruling of the court upon instructions which is complained of, but refers in general terms to ‘the several charges refused,’ and ‘each several charge and instruction given,’ and, on reference to them, they are found to be numerous (as they are in this case), the court will not deem it necessary to revise them, unless the right and justice of the case may demand it.” Fisk v. Wilson, 15 Tex., 430. “The assignment should specify the particular charge objected to.” 18 Tex., 658; 28 Tex., 105; and id., 134.

There was manifest error in that part of the charge of the court, on the subject of the equitable defense that the plaintiff and Mrs. Farris had received from their father’s estate an amount of property equal in value to their interest in the land sued for, in requiring the plaintiff to establish those facts by evidence to the satisfaction of the jury, and failing so to do, instructing the jury to find for the defendants. “ In a suit for land by the heirs of a deceased wife against vendees of the husband, subsequent to the wife’s death, the heirship being established, and that the land was community property at the death of the parent, the children of the deceased are entitled to recover, unless some equitable defense be made.” Johnson v. Harrison, 48 Tex., 258; limiting the case of Burleson v. Burleson, 28 Tex., 418. The burden rests upon the vendees of the husband and father to prove facts which authorize a sale, and if the case made be such that the heirs of the mother are entitled, prima facie, to recover, and the vendees would avoid such prima facie case by showing satisfaction out of the estate of the father, the proof of such affirmative fact devolves upon the party alleging its existence. The reverse of this proposition, so far as the burden of proof is concerned, was, in effect, given in charge to the jury; but it does not appear that any injustice in this case could have resulted to the appellant from the transposition made by the court, as the evidence showedx in what consisted the -community property of the first mar. ital partnership, and also the partition which was made of the property belonging to the second, after Lthe father’s death.

Hence, under the evidence before the jury, it is not apparent that the charge which was given influenced the jury to the injury of the appellant.

We do not deem it necessary, in order to arrive at a correct result in "this case, to consider any other than the first proposition of the defendants, viz., that the land sued for was never the community property of J. H. HcReynolds and the mother of the plaintiff.

The facts upon which the solution of the question depend are not contested, but are admitted by the parties; they have already been stated. Questions have arisen under our system of marital rights, from time to time, in our history, involving inquiries as to the community rights of a wife dying before the completion of the title, under various laws under which the government granted lands to the heads of families. Under the land policy of the government, from its inception as a republic, and under the colonization law of 1823 (Yates v. Houston, 3 Tex., 433), community rights of husband and wife have been recognized, and inducements offered to husband and wife jointly to emigrate and settle upon public lands, by granting to them, as their joint property, large estates in land. The death of the one or the other before the completion of the title by a grant or patent from the government has often presented questions as to when and under what circumstances the community right of the deceased matrimonial partner would attach, and when it would not have attached. A review of the cases shows that the courts have determined them under, their varying aspects, and under different classes of grants to land, upon broad and comprehensive principles, under which, it has been held, that if they both had become equitably entitled to the grant by virtue of their compliance with the conditions upon which land was promised to them by the government, the death of one of the objects of the bounty would not extinguish nor affect the right of the heirs of the deceased; that the title when acquired afterwards by the survivor would be held in trust for the heirs of the deceased husband or wife, as the case might be. “The grants of land made to married men (colonists) under the colonization law of 1823 are community property, and as such subject to division between the surviving and the heirs of the deceased partner of the marriage.” Yates v. Houston, 3 Tex., 433. It was remarked in that case by Chief Justice Hemphill: “ The fact that the grant was made to the head of the family is an immaterial circumstance, provided it was founded on considerations which impress upon it the character of a purchase, or of property acquired by onerous title.

“ The headright grants, under the state colonization laws, in which some consideration was paid for the land itself, were made to the heads of families. And if, by law, lands were expressly directed to be sold to families, to a greater .or less amount, according to the merits and circumstances of the applicants, and the grant were made in the name of the heads of the families, it could not be contended that such lands were the separate property of the husband.” The facts of that case showed a grant to the husband as the head of a family, who had, with his family, emigrated to Texas, and settled in Austin’s colony as a colonist. The title was held to vest as community property in the husband and wife, and not in the husband merely. A conveyance made by the surviving wife, after the husband’s death, of one-half interest in the land, was held valid against the claim of the husband’s children and heirs by a former wife who was not a colonist.

It was decided in Wilkinson v. Wilkinson, 20 Tex., 237, that land acquired by the husband, the head of a family, under the act of January 4, 1839, formed a part of the community; it was there held that, where the husband had obtained a conditional certificate, under the act of January 4, 1839, and had the land in controversy surveyed thereon during the life-time of the wife, and the latter lived three years after the issue of the conditional certificate, so that, before her death, the husband became entitled to the grant of the unconditional, it was held that the wife had acquired such an interest in the land as descended to her heirs, although the unconditional certificate and patent were not obtained until several years after the wife’s death.

In that case, the court, in the opinion delivered by Chief Justice Hemphill, refer to the case of Yates v. Houston, 3 Tex., 433, and rest the construction placed upon the laws as applied to the community rights of the deceased spouse, upon their equal rights and equities to the bounty of the government, when they shall both have performed the conditions prescribed by the law; and in Wilkinson v. Wilkinson, in determining the question whether any such right had vested in the wife in the land, at the time of her death, as would descend to her heirs, the opinion makes a clear discrimination between cases where the wife had, on her part, complied with the terms of the law, and thereby became entitled equitably to the land, and cases where, by reason of death, or other cause, she had foiled to thus comply, and thereby forfeited such equitable claim against the government.

It is said in the opinion referred to, “The conditional certificate was issued and surveyed in the life-time of the wife. She lived for three years after the issue of this certificate; and before her death, the husband was clearly entitled to the grant of the unconditional certificate. He had the control of the community; and her rights, and those of her heirs, cannot be affected by his laches in applying for the certificate. The case is clearly distinguishable from that of Webb v. Webb in 15 Texas. In that case nothing had been done, before the death of the wife, which would attach an equity in favor of the heirs of the wife upon the grant issued after her death to the husband. It was not shown that any legal step had been taken before her death to secure the land or a title.”

The case of Webb v. Webb was decided upon these facts, viz.: The husband and wife emigrated to Texas in January, 1833, and the wife died in July, 1834, leaving two children by her husband, and title was extended to the husband for a league of land as the head of a family in 1835, and it further appeared that the husband had selected the land before the-wife’s death, but that the extension of the title was delayed by the refusal of the empresario to assent to it, he claiming the land as premium land. The court held that the land was not community property, and that the heirs of the wife were not therefore entitled. In disposing of the question, Justice Lipscomb says: “The statement of facts shows conclusively that the title to the land was not obtained until after the dissolution of the matrimonial relations by the death of the wife. Does it show that anything had been done before the dissolution giving a right, in law, to demand the title that subsequently issued to the husband, on which an equity could be raised in favor of the heirs of the wife, and attach to the land. . . . Had the children died before the .date of the title, or adjudication of his qualification by the commissioner, he would not have been entitled to. more than the portion of a single man. The children in this case were necessary to constitute the family, but they did not constitute the community.” Webb v. Webb, 15 Tex., 276. Thus is sufficiently presented the distinguishing principle which separates two classes of cases; in the one, where the wife, as in Webb v. Webb, or the husband, as in Edwards v. Beavers, 19 Tex., 506, died, without at the time of the death being entitled to demand the title from the government, and without possessing the equitable interest derived from a performance of such conditions prescribed by the law, as would have entitled him or her, as the case might be, to a right in law to demand the title that subsequently issued to the survivor as the head of a family, there would exist no community rights in the land, and the heirs of the deceased parent would inherit no interest in right thereof. In the other class, as illustrated in Yates v. Houston, 3 Tex., and Wilkinson v. Wilkinson, 20 Tex., where the deceased matrimonial partner had become entitled to demand, before her or his death, a title to the land, an equity would be raised in favor of the heirs of such deceased person, and would attach to the land; the survivor who afterwards acquired the title from the government would hold the same in trust for the heirs. Edwards v. Beavers, 19 Tex., 507; Fishback v. Young, 19 Tex., 515.

It appears from the statement of' facts that the colony contract between Peters and the republic of Texas contained a reservation to the said republic of every alternate section of six hundred and forty acres, which should not be subject to settlement by the contractors, nor to selection by them as premium lands, under the provisions of the said contract. It is admitted that the settlement which McReynolds and his wife made was upon one of those reserved sections. The settlement thus made was in direct derogation of the law under which their settlement was made, and as colonists they could acquire no title to the land; none could be conferred by the colony contractor; none could be claimed in law or equity from the republic. At the time of the death of Mrs. McReynolds she had done nothing “ which gave her a right in law to demand the title that subsequently issued to her husband, on which an equity could be raised in favor of her heirs, and attach to the land.” There was not existing in the husband and wife, or either of them, any right to the land to form the subject of community property. The contract with Peters expired by its own limitation on the 1st day of July, 1848. The contractors had acquired no title to the land, and there was no law by which the colonists, as such, under them, could acquire it. Such seems to be the fair conclusion, even if the settlement had been made on a section which was not reserved to the republic from settlement; but surely no pretense of equitable or legal claim can be set up in favor of a settlement made as a colonist on lands which the law (colonial contract made under, and therefore a part of the law) expressly prohibited being settled on. Mrs. McReynolds died, therefore, without possessing either a title to the land, or any rightful legal or equitable claim against the government for such.

The act of January 21, 1850, “ to secure to all actual settlers within the limits of the colony granted to Peters and others, commonly known as Peters’ colony, the land to which they are entitled as colonists,” provided that “ all actual settlers who have emigrated to this state as colonists, and settled within the limits of the colony granted to Peters and others, commonly known as Peters’ colony, prior to the 1st day of July, A. D. 1848, shall be entitled to the quantity of land hereinafter stated, to wit: Each head of a family shall be entitled to six hundred and forty acres of land, including his or her improvements; and each single man . . . shall be entitled to three hundred and twenty acres of land, including his improvements.”

There being no right to the land previous to this date in McReynolds and his wife, the above provision must be regarded as a legislative grant, and one, too, which was not made in discharge of an obligation of the government, but an act of sovereign grace and bounty on the part of the political authority. Causici v. La Coste, 20 Tex., 269. Mrs. Eliza McReynolds having died before the enactment of the law, her rights, or rather the rights of her heirs, cannot be made to depend on what privileges and benefits might have been acquired by her had she survived to reap the advantages of the legislation in question, but must depend upon what rights to the land existed at her death, and what were given by the act, and to whom were they given.

The legislative grant was made to the head of the family; J. M. McReynolds fully met this description; he "was then the head of a family, he having then living three children, “ who constituted,” as was said in Webb v. Webb, “ the family, but they did not constitute the community.” The land granted under the act referred to was a donation by the government to a very meritorious class of persons; the traditional policy of the government from its foundation has been to encourage them in accepting the bounty offered to them, and to protect and maintain them, in acquiring and holding the benefits promised.

The construction which we have given to the act of 1850, and the conclusion we have deduced as to the rights of the heirs of Mrs. Eliza McReynolds to the.land, harmonize with the views which have been taken by our supreme court in regard to the community interests of the husband and wife under other laws similar in character to the act of 1850, and the laws and contracts made by the republic of Texas relating to Peters’ colony grants. A construction which would deprive the husband and head of the family of an equal one-half portion of the land granted to him as the head of a family would be inconsistent with the general theory and practice in regard to community rights. And yet, if it be a correct proposition that the community rights of Mrs. Eliza McReynolds have survived the dissolution of the marital relation and attach to rights granted to J. M. McReynolds afterwards as the head of a family, by virtue of the equitable and meritorious considerations arising from her sharing with him the toils and privations of a colonist from 1842 until her death, it would follow that if during the period intervening between the date of the "law of 1841, granting lands to emigrants in Peters’ colony, and the passage of the law of 21st January, 1850, which granted six hundred and forty acres of land to heads of families, such colonist had had the misfortune to lose by death a first, second, third, or, as it might be, even a fourth wife, it would result that the heirs of the first wife would acquire one-half of the land granted, whilst the remaining half would be subject to be subdivided between the heirs of the succeeding wives, and but a fractional moiety would remain for the head of the family, or else the rights would have to be ascertained upon such equitable principles of apportionment of the respective interests of the several families as the courts might be able to establish as a proper rule of right.

Such an incongruous result militates against the more simple policy of the land laws, to grant lands to the head of a family, who represents, under that description, either a certain specific matrimonial union, or else, if that has been dissolved by death, representing his deceased partner, if she was in fact entitled, or, if not entitled, representing the family which actually existed at the time of the grant.

[Opinion delivered June 21, 1880.]

The question which is involved in this case has been variously decided in the cases of Murphy v. Cannon, 31 Tex., 405; Caudle v. Weldon, 32 Tex., 357, and Carter v. Wise, 39 Tex., 273. The cases here cited in 31 Tex., and 39 Tex., held views adverse to those which we have expressed, whilst the case in 32 Tex. coincides with our conclusions, and upon much the same reasoning. We cannot regard the adjudications thus made as settling the law on the subject, especially in view of the principles and rules laid down in all the antecedent' cases to which we have referred, and therefore we think it proper to follow and adopt that conclusion which appears to us to be best supported by the weight of authority, the analogies to be drawn from all the adjudications made by our supreme court, and the best reasons applicable to the subject.

The view which we take of the merits of the plaintiff’s cause of action necessarily disposes of the case, without the necessity of considering any collateral or incidental question involved in the assignment of errors. Where a ruling cannot affect the result of a case it cannot be revised. Woods v. Durrett, 28 Tex., 431.

The briefs and arguments of the counsel on both sides are quite exhaustive and interesting; the discussion of the legal questions which are presented under the defense of res adjudicata, made by one of the able counsel of the appellees, deserves commendation for its research and clearness. We do not find it necessary, however, to determine the event of this appeal upon other grounds than that on which we have based our conclusions.

We are of opinion, therefore, that the judgment ought to be affirmed, and shall award accordingly.

Affirmed.


source: Caselaw Access Project

author: Quinan, J.

license: Public Domain

text:
    J. M. Campbell, Executor, v. L. D. Pucket.
    (Case No. 2825.)
    1. Statute of frauds — "Verbal promise.— The verbal promise to hold one harmless if the-promisee would become surety on the appeal bond of a third party is not within the statute of frauds, and may be enforced against the promisor when the surety is compelled to pay the bond. Pas. Dig., art. 3875; Throop’s Treatise, ch. 13, art. II; Lucas v. Chamberlain, 8 B. Monroe, 276; Jones v. Letcher, 13 B. Monroe, 363; Jones v. Adm’r of Shorter, 1 Kelly, 294.
    Appeal from Williamson. Tried below before the Hon. E. B. Turner.
    The opinion states the case.
    Peeler, Montgomery dé Fisher, for appellant.

      Malcemson dé Posey and Walton, Green dé Hill, for appellee.
   Quinan, J.

This suit was instituted by Pucket against Campbell, executor of Campbell, Sr., for the recovery of a sum of money paid by Pucket on a judgment against R. D. Smith in favor of one Rapier under these circumstances:

The petition sets out, in substance, that the wife of Smith was the daughter of Campbell, who was interested in her pecuniary welfare; that a judgment being rendered against Smith, the execution was levied on thirty head of horses, alleged to be the property of Smith’s wife, who made claim to the propcrtir, but upon trial of the right thereto were ad# judged subject to the execution; that then Campbell, her father, became indignant at the decision of the court, and declared that before said property should be sold he would exhaust his entire estate; ” that he was determined to take the case to the supreme court by writ of error; that Campbell applied to Pucket to go on the bond with him; to prevent the sale of his daughter’s property, “ and promised that if he, Pucket, would go on said bond he would take it as a great personal favor; that he would indemnify/him. and hold him harmless; that he should not lose one cent, and that if said judgment had to be paid he expected and intended to pay the same.” Pucket avers that, relying upon the representations and assurances of Campbell, he was induced to become surety on said writ of error bond; that he gave no credit to said E. D. Smith, and had no conversation with him about it, but that he signed the bond relying alone upon the assurance of Campbell that he would indemnify and hold him harmless from all loss and damage growing out of it. The case was taken to the supreme court, and in that court the judgment against Smith was affirmed, with ten per cent, damages against him and his sureties on the writ of error bond. Smith being insolvent Pucket was compelled to pay the amount.

The claim for this amount was presented to Campbell’s executor, and by him rejected.

The defendant demurred to the petition, and pleaded specially that the promise declared on was a verbal promise to answer for the debt or default of another, within the statute of frauds, and insufficient to support the action. This demurrer was overruled, a jury was waived and the cause submitted to the court, who, upon the pleadings and evidence, gave judgment for the plaintiff, from which Campbell appeals. There is no statement of facts. A bill of exceptions taken to the admission of testimony shows that the averments of the petition were sustained by the proof.

The assignments of error present the question whether, upon the case as stated, the undertaking of Campbell to indemnify Pucket was within the statute of frauds.

The first section of the act provides that no action shall be brought . . . whereby to charge the defendant upon any promise to answer for the debt, default or miscarriage of another person, . . . unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith, or some person by him thereunto lawfully authorized. Pas. Dig., art. 3875. Is Campbell’s undertaking, then, a promise to be answerable for the default of Smith which must be in writing?

The question presented is by no means free from difficulty. The authorities upon the subject are conflicting and cannot be reconciled. An excellent collation of them will be found in Throop’s treatise upon the validity of verbal agreements (ch. 13, art. II), and the conclusion is reached, “ as the result of the conflict of authority, that nothing can be regarded as definitely settled except, perhaps, that where the promisor and the promisee are about to unite in an instrument as sureties for the third person, the promise to indemnify is not within the statute.”

Lucas v. Chamberlain, 8 B. Monroe, 276, a case cited, is strongly analogous to the present case. There the defendant promised to indemnify the plaintiffs for executing, as sureties, an injunction bond with J. & J. Stephens, to stay execution upon a judgment against them, and it was held that the undertaking was not within the statute. So in Jones v. Letcher, 13 B. Monroe, 363, it was held that one xvho had requested another to become jointly bound with him as surety upon a third person’s bond as executor, and had verbally promised to indemnify him for so doing, was liable upon the promise, although the objection was taken that the statute prevented a recovery.

In a Georgia case (Jones v. Adm’r of Shorter, 1 Kelly, 294), the plaintiff filed a bill to compel the defendant to execute a bond of indemnity to secure him against any amount which might be recovered against him on a suit pending upon an administration bond, alleging that he had executed the bond upon the agreement of defendant to indemnify him against any loss for so doing. The court held that the plaintiff had an adequate remedy at law and could recover in an action upon the verbal promise, and so dismissed the bill.

In Massachusetts, Connecticut, Iowa, Mew Hampshire, Maine and other states the same rule has obtained, while in New York the decisions have been both ways; and in Ohio and ¡North Carolina and Indiana the contrary has been maintained.

[Opinion delivered June 10, 1880.]

In this conflict of decisions, however, we are of opinion that the weight of authority is that an undertaking like that of Campbell in the present case is not within the statute.

It seems to us that the promise of Campbell to Pucket was an original undertaking to hold him harmless from any loss he might sustain in consequence of signing the writ of error bond with him; that Pucket’s signing was a service rendered to Campbell and for Campbell’s benefit, to aid him in suspending the execution against his daughter’s property, :and upon his special request, and not upon any understanding with Smith; that Campbell’s liability resulting from the transaction with Pucket was not so much a liability to be answerable for Smith’s debt, but directly upon his own ■obligation to Pucket. He bound himself to indemnify ■Pucket from loss, not in the event thaf Smith did not do so, but primarily and absolutely in the event that Pucket had ■to pay the judgment; Campbell’s liability was .for the discharge of his own duty to fulfil this obligation and not to be answerable for Smith’s default. With Smith, Pucket had nothing to do. His dealings were altogóther with Campbell, and the liability he incurred was incurred on Campbell’s •account and on the faith of Campbell’s undertaking to hold him harmless.

We hold, therefore, that there is no error in the judgment and that it ought to be affirmed.

Affibhed.


text:
    Charles Cunio v. H. G. Burland et als.
    (Case No. 3698.)
    1. Land — Resulting trust.—To control the evidence of a deed and establish a resulting trust-in land by parol, from, -the payment of the purchase money, the trust must be proved with great clearness and certainty by evidence full, positive and satisfactory; if the testimony is conflicting, it lacks the precision which the law in such cases requires. >• ■
    2. Parol agreement.— No agreement by parol, subsequent to the puiy chase, will create a trust in land. The trust results, if at all, the instant the deed is taken, and the legal title vests in the vendee.
    Appeal from Travis. Tried below before the Hon. E.- B. Turner. ■
    This suit was brought in the district court of Travi§ county, December 14, 1874, by the children and heirs of Mary Marianna, against Coney, the' appellant, to recover an interest in the lots 1, 2, 3 and 4, in block 25, in Austin City. They claim four-fifths of the property on the ground that Carlo and Mary had purchased the property together, at the price of $2,500, of which $1,500 cash was advanced by Mary, and that it was agreed between them that the re^ Draining $1,000 should be made and paid by their joint labor. The deed was taken in the name of Coney, and the $1,000 paid, as is alleged by plaintiffs, by their joint labor.
    . Coney answered, denying the trust; averred a loan of money to him by Mary, which he had repaid, and pleaded also limitations.
    There was a verdict for the plaintiffs for four-fifths of the property, and judgment accordingly. The defendant moved, for a new trial, which being overruled, he appealed.
    . The defendant has assigned for error b 1. That the court erred in refusing the charges asked by him, numbered 1, 2, 3, 4, 5 and 13.
    . 2. That the court erred in charging, in effect, “that a trust could be established by evidence of a parol agreement subsequent to. the deed, but prior to the date funds were contributed under such agreement, to pay the balance of the purchase money.” , ...

      3. In overruling the motion for a new trial.
    4. The evidence failed to show a trust in the land in favor of appellees’ mother.

      Terrell & Walker, for appellant.

      Sheeks & Sneed, for appellees.
   Quinan, J.

As to the first assignment we are of opinion that the charge of the court to the jury was in the main correct. The issues in the case were fairly submitted to them, whether, as contended by plaintiffs, there was a resulting trust in their favor in the land in controversy from the payment of any part of the purchase money by their mother, or whether the money, if any of hers went to the payment of it, was as á loan to the defendant. The charges asked by defendant, and refused, were, in fact, so far as they should have been, embraced in the judge’s charge. The law as given was correctly given. In two points only we consider the charge open to criticism. “ It became a material question in the case, whether, as to that part of the purchase money of the land not paid at the taking of the deed, there had been any understanding or agreement between Mary and Cunio, before the purchase of the land, that they should pay jointly. The charge upon this point instructed the jury to inquire whether Mary aided to any extent in paying for the property after the first payment, and whether it was agreed between her and Coney that they should both have an interest in the land in proportion to the funds contributed, and that such agreement preceded the investment, and upon its faith funds were contributed — if so, then that would create a trust in her favor.” Now this language, though perhaps not so intended, leaves it in doubt whether the agreement referred to should be had before the first payment, or whether it was meant that the agreement must simply precede the investment of the funds subsequently invested. For, in the latter case, it is well settled that no agreement by parol, subsequent to the purchase, will create a trust. The trust must result, if at all, at the instant the deed is taken and the legal title vests in the grantee.. Perry on Trusts, 105; Rogers v. Murray, 3 Paige, 390. But in our judgment a more serious objection to the charge is the omission to instruct the jury that the proof to establish a resulting trust must be exact, “clear and positive;” and especially as the attention of the court was directed to this by instructions asked by defendant, though in the form in which they were asked, it was perhaps not error to refuse them. Where the trust does not arise on the face of the deed the parol evidence must prove the fact of the advance of the purchase money very clearly. 1 L. C. in Eq., 265.

And it is said “ the evidence must be full, clear and satisfactory.” 1 Johns. Ch., 582. “The doctrine of resulting trusts from the payment of the purchase money is admitted to be a very questionable one, and is acted upon only with great caution, and the circumstances from which such a trust is to be raised must be clearly proved.” 4 Maryland Ch., 33.

And so it is said by Mr. Justice Gould, in Markham v. Carothers, 47 Tex., 27, of instructions, “ that a verbal trust in lauds must be established with clearness and certainty. The charge was correct and appropriate. The principle involved is one of the first importance to the stability and certainty of titles, and it is a principle which it is the duty of the court to enforce by granting new trials where it has been disregarded by juries.” Had the jury been so charged in the present case it is probable that a different result would have been reached.

The third and fourth assignments may be considered together, and in our opinion are well taken.

We have examined the testimony with great care, and are constrained to say that the trust as alleged in the plaintiffs’ petition has not been proven with that “ clearness and certainty” which the law requires and which would warrant the jury in establishing it by their verdict, and the court in decreeing its performance.

The land in controversy was purchased by Cunio from Patterson on the 4th May, 1872, for the price of §2,500, of' which $1,500 was paid down. Cunio gave his note payable in twelve months thereafter for the balance, $1,000, and took -the deed to the property to himself.

This $1,500, the proof tends strongly to show, was the money of Mary, but whether it was obtained as a loan by Cunio, or for the purpose of investment in the land for Mary’s benefit, the testimony is directly conflicting. The plaintiff Bosa testifies: “ My mother let Charley have that money to buy the place from Mr. Patterson, and Charley told her, when she let him have the money, that they would buy the place and would live on it, and work together and would make a good living, and would make the money and" pay Mr. Patterson the balance. My mother then let him have the money under that arrangement.” And this is the only witness whose testimony tends to prove a, specific agreement'for the investment of the money for Mary’s benefit in the land.

Mrs. Borland, the sister of Mary, for the plaintiff testifies to a conversation between Mary and Charley some four or five months before her death. “Mary told Charley she wanted the $1,500 of'her money which went into the place.” Charley then went to a trunk, took out some papers, threw them in Mary’s face and said: “ Here, take the papers and go and sell the place.” “ She wanted the money.” He said, “if you will live like a lady, let us pay for the place, and we can sell it and get you the money, and you can do as you like.” “You have money in the land; I can’t pay you.” ‘■‘When we have paid for the place, sell it, and I’ll pay you.” “I don’t want to cheat you out of a cent. I’ll pay you all back.” Charley said he was willing to give her her money when he was- able, and would sell the place, when paid for, and give her her money.”

; Patterson, for the plaintiff, also testified: “Charley told me that the $1,500 he was paying for the lots was Mary’s money; that his money was out at interest. He spoke of buying the place for himself, and told me he had to get the money from Mary. Some time after this Mary called upon me. She and Charley were quarreling. Charley also called. Mary said Charley had $1,500 of her money and would not pay it. lie acknowledged that he had and would pay it. Charley then called on me to bear witness that he had $1,500 of Mary’s money, and would pay it. She then seemed satisfied. This referred to the $1,500 used in the first pay-, ment for the property, and was ten to thirteen months after-the date of the deed from me.”

This is the substance of the plaintiffs’ evidence which throws any light upon the character of the transaction between Charley and Mary as respects the purchase of the land.

On the other hand, the testimony for the defense was in direct conflict with this:

Coney swore: “The money I paid to Patterson was mine. I had money to buy it myself, and more; nobody was interested in the purchase but myself. "When I bought the place Alf. Smith had $2,300 borrowed; I had other money. I got money from Nalle and-New, and used it paying Patterson.”

Blomelce proved that Charley got $500 or $600 from him when he was buying the place from Patterson. That a short time before her death Mary brought to his store an apron full of money; said Charley had paid her off, and wanted me to keep her money.”

Silva testified that “Mary told him she had her money from Charley.”

Connova swore Mary said, “ I am all right, Charley has paid me my money.”

And as to the note, Coney testified that he had paid it, and showed where he had gotten the money — from his brother, $300, from Henry New, $200, from Blomeke, $800 or $900, and Patterson said that Coney paid him the note.

Now, from this review of the testimony in the case, we think it manifest that it falls far short of that precision and certainty required to establish a parol trust in lands. As to the $1,500 paid to Patterson, conceding that to have been Mary’s money, we think the bearing of the testimony leads to the‘conclusion that it was a loan from her to Charley, and that both parties looked upon it as a debt. As to the-$1,000 note, there is no proof whatever that Mary paid any part of it, and there is proof that Charley paid it all, and from what sources he obtained the money.

[Opinion delivered June 21, 1880.]

Again, in relation, to the testimony of the witness Rosa, to prove the declarations of Charley, made before or at the time of the purchase of the property, though that sort of testimony was admissible in connection with the payment of money, the $1,500 which she saw, and though even then it is said, “ to be most unsatisfactory on account of the facility with which it may be fabricated, and the total alteration of the eifect which the slightest mistake or failure of recollection may cause,” yet her statements of Charley’s declarations how the balance of the purchase money was to be paid, uncorroborated as it was by a single fact or circumstance or ¿witness, and denied by the oath of Charley, was incompetent proof to establish any trust in the two-fifths of the land unpaid for then. Hall v. Layton, 16 Tex., 262; 1 Leading Cases in Equity, 273.

To establish a resulting trust in lands, from the payment of the purchase money, the law is, that in the bill the trust must be clearly alleged, not only in terms, but all the facts must be set out from which it is claimed to result. And in all cases they must be proved with great clearness and certainty. Loose and equivocal facts or declarations ought not to control the evidence of deeds; and two witnesses, or one witness with corroborating circumstances, are required where the trust is denied under oath. Perry on Trusts, 110.

We conclude that in a case of this character, where the principle involved, as said by Judge Gould, is of the first importance to the stability and certainty of titles, it was the duty of the court to have enforced it, where the jury, as we think they have here, disregarded the evidence, by granting a new trial.

And for this cause, we are of opinion the judgment should be reversed and the cause remanded; and we so award.

Reversed and remanded.


author: A. S. Walkee, J.

text:
    A. H. Rippetoe et al. v. T. A. Low.
    (Case No. 3680.)
    1. Streets — Limitation.— Adverse continuous possession of a street in a city or town for ten years will confer title by limitation.
    3. Deed — Five years’ limitation as to streets.— A deed to a lot in a city or town only conveys the land to the line of the street, and the statute of limitation of five years does not apply where the owner takes and holds adverse possession of a portion of the street adjoining.
    8. Rescinding sale of land—Streets.— The purchaser of a brick business house and the lot on which it is situated, and who is in no way at fault in the matter, may have the sale rescinded on discovering a valuable portion of the improvements tobe in the street, the possession of the street not having continued long enough to confer title by limitation.
    Appeal from "Washington. Tried below before the Hon. E. B. Turner.
    This suit was commenced on tbe 19th of July, 1875, by T. A. Low "against A. II. Eippetoe and II. C. McIntyre. The petition alleges that on tbe 5th of June, 1875, plaintiff purchased of defendants a part of lot 51, the boundaries of which are given, situated in the city of Brenham, worth tbe sum of $800, upon which was situated a brick building, worth $1,200; that the price of the house and lot, as agreed upon, ivas $2,000, of which $1,000 was paid in cash, and the note of plaintiff, payable on the 1st of January, 387'6, ivas given for the balance, and a deed of conveyance of the lot and house, with a general warranty of title, was executed by defendants. The petition further alleges that he purchased because the house was suitable for his business, and that the defendants represented that the house was wholly situated upon lot 51; but that, upon a subsequent survey, it was ascertained that the eastern part of the house is twelve feet in Goat Eow, one of the streets of Brenham, as designated by tbe map of the city; that plaintiff, with a knowledge of this fact, cannot safely take possession of the house and make certain necessary repairs upon it, which will cost the sum of $1,500, as he would be liable to eviction by the city of Brenham, or its authorities, and the same would not be covered by the defendants’ warranty; that at the time of his purchase plaintiff did not know, and could not reasonably anticipate, the facts in regard to the location of the house, which were well known to defendants, who fraudulently concealed the facts; that he has not taken possession of the house, and has offered to cancel the trade and reconvey the property, which defendants refuse to do.
    • Plaintiff prays judgment for rescission of the contract of sale, offering to reconvey the lot, and for the return of his purchase money and for damages.
    On the 10th of September, 1875, defendants answered by a general demurrer and by a special plea, admitting the conveyance, the payment of the purchase money, and execution of the notes as alleged; denying that they had made any representations as to the location of the house on the lot, and averring that plaintiff, before his purchase, had examined the house and lot, and had all the means of information as to their location possessed by defendants; that the lot and improvements are in the possession of the plaintiff, and no proceedings have been instituted by the city of Brenham or its authorities to eject plaintiff.
    The defendants further allege that the house is wholly on the lot conveyed by them, the eastern line of the house being coincident with the eastern line of the lot, and that no part of it is in the street; that they have had possession of the lot conveyed to plaintiff, and of that part upon which the house is situated, claiming title thereto, for more than twenty years, before the execution of their conveyance to plaintiff. They also allege peaceable, continuous, uninterrupted and exclusive adverse possession under deeds duly registered, with payment of taxes, for more than five years prior to their conveyance, and like possession, under title from the government; for more than three years, of the lot conveyed by them, and specially of that part of the lot upon which the house is situated.
    The defendants further allege that the west line of Goat Bow has, for more than twenty yearsj been -recognized as coincident with the eastern wall of the house on lot 51, and that for all that time the public have been, by the buildings, fences and other improvements erected thereon, excluded from the use, as a street or highway, of any portion of said lot within the boundaries claimed by defendants; and that the city of Brenham and its authorities have never set up any such right, or threatened to eject therefrom the defendants or the plaintiff.
    The defendants further deny all facts alleged by the plaintiff, not expressly admitted in his plea.
    By an amended petition, filed February 8, 1876, plaintiff alleges the institution of suit in this court upon his note for the deferred payment; that the lot without the house is valueless to him; that, to carry on his business, costly repairs of the house are necessary.
    - By a second amended petition, filed February 3,1877, it is alleged that the value of the property is depreciated one-half by the location of the house within the street; that the alignment of the street is destroyed, and the width of the street diminished thereby.
    By an amended answer filed July 2, 1877, the defendants allege that the house on lot 51 was erected in 1866; that the eastern wall of the house is coterminous with the east- ' ern boundary of lot 51, as claimed by them; that at the • same time they had inclosed with a fence all that part of lot 51 north of the house, and have held continuous possession of the lot so defined until the sale to plaintiff, excluding the public from the use of the lot as defined by said improvements; that the western line of Goat Bow was then (in 1866) defined by buildings and fences erected on. the lots fronting on said street, and the line so defined corresponded with the eastern wall of the house and fence on lot 51, and that during said time the corporate authorities and citizens of .Brenham acquiesced in said line as the true western boundary of Goat Bow; that before the conveyance to plaintiff, the eastern and western lines of Goat Bow were clearly defined by buildings, fences and other improvements thereon, and plaintiff had the same means of information as the defendants in regard to the-width of said street. -

      By an amended petition filed July 26, 1877, it is alleged that defendants, as an inducement to the purchase by plaintiff, represented to him that the lot conveyed was bounded on the north and east by two streets sixty feet wide; .that plaintiff made .the purchase relying .upon the truth of this representation, which was false and designedly made with intent to deceive, and that Goat Row was but forty-seven feet xvide, as defined by the buildings on each side of the street; that the value of the lo.t for plaintiff’s business purposes was greatly diminished, and that, with a knowledge of .the actual width of the street, plaintiff would not have purchased .at any price.
    By an amended answer filed January 1, 1878, defendant excepted to .the last amended petition on the ground that the matters therein alleged were barred by limitation, and pleaded a general denial,
    'On the 7th .of July, 1876, there was a trial, and verdict and judgment for the plaintiff, which was set aside and a new trial granted.
    On the 7fch of February, 1877, there was another trial, and verdict and judgment for the plaintiff, xvhich was also set .aside and a nexv trial granted. 4
    On the 21st of January, 1878, there was a third trial.
    The evidence was voluminous, and on all material issues was conflicting. Special issues were submitted by the court •with the charge.
    A map of the town.formed part of the record.
    The folloxving is the charge given to the jury:
    “ I charge you that there is no such evidence in this case as will justify the setting .aside the deed to plaintiff on account of statements as to the xvidth of the streets Goat Roxv and Quitman, as such statements are simply descriptive, if •.the same place is enjoyable as a street by the persons as appeared to be at the time he purchased, and therefore you •should discharge this evidence as affecting the rights of the parties to this suit.”
    “ I have in the folloxving part of the charge stated upon what findings "you should return a general verdict for the defendants; still, if in folloxving those directions you do not find for defendants, but find a verdict for plaintiff, then he is entitled to recover the $1,000 paid by him, and the interest thereon from payment to this date at eight per cent, per annum. You are the exclusive judges of the weight of the evidence admitted in this case.

      ‘•’•First. On the 5th of June, 1875, the defendant conveyed to plaintiff the eastern portion of lot 51, bounded by Groat Eow and Quitman streets, in the city of Brenham, and paid $1,000, the balance of the purchase money payable on the 1st day of January, 1876.
    “ The plaintiff now seeks by this suit to rescind the contract of sale and to recover back the money paid by him, on the ground that the brick house standing upon lot 51 is partly within the street named Goat Eow. In order to entitle the plaintiff to a judgment rescinding and setting aside his contract for the purchase of said lot, he must show beyond a reasonable doubt that a part of the brick building on the lot conveyed to him is within a street in the city of Brenham, and that he is liable to be evicted therefrom.

      ‘'•.Second. You must find from all the evidence whether or not any portion of the brick building on lot 51 is in the street. On this question the best evidence of the location of the lot is the designation of its corners by natural or artificial objects. If you find from the evidence that the corners of lot 51 or of other lots on the west side of Goat Eow were, in laying off the town of Brenham, designated by stakes or stubs, and that the eastern line of the brick building on lot 51 is substantially the same as the line designated in laying off the town, you will find for the defendants.
    “ Third. It is also competent to show boundary lines by the acquiescence of parties owning lots on the same street, continued for a period of ten years or more, and by the general recognition of and acquiescence in such line by the public, and by the city authorities of Brenham. And if, from such evidence, you find that the brick building is on the general alignment of the lots on the west side of Goat Eow, you will find for defendants.

      “Fourth. If, under the preceding charges, you find for the defendants, you will not proceed any further in your examination of the evidence, and will return your verdict that you find for the defendants. If, on the contrary, you find that the brick building on lot 51 is partly within the street named Goat Row, you will then return answers to the following questions, writing your answers immediately below the question:
    “First question. Is the brick building on lot 51, or any part of it, in Goat Row? If you say it is, state how far? To this the jury said that the' house was in Goat Row about six and a half feet.
    ■ “ Second question. When was the brick building on lot 51 erected, and by whom? What is its length and width, and what is the length of the wall on Goat Row?
    “Answer. In the fall of 1865, by H. C. McIntyre and Dr. Rippetoe — thirty by sixty feet. Length of wall on Goat Row sixty feet.
    “Third question. Who has exercised ownership and control over the brick building on lot 51 from the time it was built to Jane 5, 1875?
    “ Answer. McIntyre and Rippetoe.
    “ Fourth question. Has any fence been erected on that part of lot 51 on a line with the building on the east back to its intersection with Quitman street?
    “Answer. Tes.
    “ Fifth question. If you say ‘ yes,’ then state when it was built, and how long the land inclosed between the'north -end of the brick building and Quitman street remained continuously in the exclusive possession of defendants and those under whom they claim, before they sold to plaintiff?
    , “Answer. In the spring of ’73. Remained under the exclusive possession of defendants about two years.
    “ Sixth question. Have the taxes been paid on lot 51, and .for what length of time and by whom?
    “ Answer. By McIntyre and Rippetoe from the time of purchase until sold to Low.
    “If, as I have said before, you find that the building is on lot 51 as originally staked off, then you will find for the defendants. But if you pass beyond this inquiry apd find that the house is in part on the street Goat Row, then answer all the questions above submitted; and if you answer to the fifth question (adverse possession) five years or more, ■then find for the defendants.
    “In stating the time the fence, if any, has been around the lot north of the building, you will state whether they were so continuously or exclusively occupied, and what period anterior to 28th of January, 1861; and again for what length of time since the 3dth March, 1870, has it been so occupied by defendants and those under whom they claim before they sold to plaintiff.”
    •The jury returned also.their general verdict as follows:
    “ We, the jury, find for plaintiff, as per questions answered within; that it is to say, he is entitled to the $1,000 with interest, amounting to $1,209.99.”
    Judgment was rendered rescinding the sale and for the sum found for plaintiff.
    Motion for new trial was overruled and the defendants appealed.
    The errors assigned were numerous. Those discussed by counsel for appellants are:
    1. Exclusion from computation the facts in relation to possession of the lot in controversy between 28th January, 1861, and 30th March, 1870.
    2. What would constitute possession adverse to the city, of a street, and what abandonment.
    4. Title to a lot in a city originally subject to the public easement, or right to use as a street, can be acquired by adverse possession, etc.
    5. A conveyance of a town or city lot abutting on a street conveys title to the center of the street, subject to the public easement or right to use the same as a street.
    6. Title to land dedicated as a street can be acquired under five years’ statute, etc.
    7. That the erection of the house was an invasion of the street, etc., and adverse possession.

      . . . 12. Judgment should have been rendered for the defendants upon the verdict.
    13. The finding of the jury as to the location of the lot is contrary to the evidence.

      Sayles dé Bassett, for appellants.

      Shepard db Garrett, for appellee.
   A. S. Walkee, J.

The town plat of Bren ham showed the usual subdivisions of a town or city; streets and squares; blocks, and their subdivisions into lots; made'and marked by actual surveys. The public squares and streets, by the map, and sales of lots with reference to the map, became and were reserved for public use. Lamar Co. v. Clements, 49 Tex., 354, and cases cited; Dillon on Mun. Corp., §§ 516, 518, 520, and authorities. From the dedication to the public it would follow that the public, during the existence of the city or the need for the street, has as perfect right to the streets, or to the use of the land covered by them, as the lot owner has to the part of the city tract inclosed within the lines of his lot. As against the right to the street, and as basis for title under limitation against the city or public, the deed to the lot is limited to the line of the street. This line marks the limit of the street as against the lot and of the lot against the street. A holding under the deed or grant of the lot could not extend beyond its lines. Therefore the requisites of the five years’ statute of limitations would not be met by the extension of improvements beyond a lot and into the street adjoining such lot. The holding may be adverse to the city or to the public, but it is 'not under deed.

We recognize that adverse continuous possession for ten years under the statute would confer title; as would a compliance with any other of the articles of the laws of limitation.

From this we deduce conclusions upon the propositions .raised in the appeal:

1. It is immaterial whether or not the suspension of the statutes of limitation in the constitution of 1869 was repealed by the constitution of 1876. The verdict fails to find any connected adverse possession before the war with the possession in 1865. From the erection of the house in the fall of 1865 to the filing of the suit was less than ten years. Appellant could not receive any benefit from the possession subsequent to the suit as an adverse holding.

2. The inclosure of part of the street adjoining the lot Mo. 51 would, if continued long enough, and adverse to the city or to the public, confer title by limitation; but only under the conditions prescribed in the several statutes.

3. What would as a fact constitute a break in the possession the court cannot dictate. In this case, for purposes evidently temporary, an inclosure was extended across a public street and into another block; and such inclosure, from decay or other reason, was destroyed or ceased to obstruct the use of the street, which had been occupied by such inclosure; such facts might be evidence of an abandonment of the lot beyond such street, when, under similar external facts applied to parts of a farm, inclosure of which was destroyed, would not even tend to show an abandonment.

Upon abandonment of the street as a highway, the rule insisted on may exist here as at common law. Still the implied guaranty to the public in laying off the town into blocks with well defined streets, that the streets shall be public highways, forbids that, as a basis of limitation against the public, the deed to the city lot could include the street to its center." As against the right to use the street, and which is the concern here, the lot is bounded by the street line, and possession held under a deed for the lot adjoining a street would be limited by such line.

6. The verdict finds the fact of occupancy over upon the the street, ownership of lot 51, payment of taxes from 1861, to July, 1875, being a term, and with conditions importing to such possession the force of title, but not beyond its limits. The judgment, therefore, was properly rendered upon the facts found by the verdict.

7. The verdict was sufficiently sustained by testimony. The charge of the court was quite favorable to the appellant. The jury were allowed as against him no latitude beyond the strict limits of the law.

[Opinion delivered June 21, 1880.]

8. If, as found by the jury, a part of the building which formed the more valuable part of the purchase was on the street, and the purchaser in no fault in the contract, he was entitled to a rescission. It is “a substantial error between the parties concerning the subject-matter of the contract.” 2 Kent, 471.

The judgment below should be affirmed.

Affirmed


author: A. S. Walker, J.

text:
    R. Stinnett v. T. W. House.
    (Case No. 3913.)
    1. Certificate of authentication.—A certificate in the following form is a substantial compliance with.the statute:
    “The State of Texas, Robertson County.

      “ Personally came and appeared before me, Samuel B. Killough, chief justice, ex officio notary public said county, John J. Loftin, known to me,, and, after being duly sworn, saith on oath that Josiah Taylor signed, sealed and delivered the foregoing deed for the purposes therein expressed, and that he signed the above and foregoing deed from Josiah Taylor to Wm. B. Loftin as a subscribing witness at the request of the said Josiah Taylor. All of which I certify under my hand and seal of office at Wlieelock, this 11th day of November, 1854 Saml. B. Killough,
    “Chief Justice and ex officio Notary Public, Robertson Co.” 15 Tex., 65.
    3, Deed — Record of.—It is sufficient to record a deed with its certificate of authentication, and the clerk need not copy into the record the certificate of record of another county. 47 Tex., 458.
    Common source.— Proof that defendant claims title under an heir Of plaintiff’s grantor is sufficient evidence prima facie of common source to maintain the plaintiff’s title against the defendant, if otherwise good.
    Appeal from Erath. Tried below before the Hon. J. E. Fleming. ' : . . . . /

      This was an action of trespass to try title, filed on the 4th day of November, A. D. 1876, by T. W. House, against Bufus Stinnett, for a portion of the Josiah Taylor survey in Erath county. The defendant pleaded a general demurrer and general denial. A jury was waived and the issue submitted to the court. Plaintiff introduced in evidence a deed from Josiah Taylor to W. B. Loftin, to the land in controversy, dated 13th October, 1854; also a deed from said Loftin to plaintiff dated the-day of-, 1866. Plaint-tiff also introduced in evidence a deed from Wm. Taylor, son of Josiah Taylor, to Bufus Stinnett for the same land, dated-day of-, 1875, and closed.
    Defendant claimed the land under the last-mentioned deed.
    The court gave judgment for the plaintiff, and defendant appealed. The errors assigned are:
    1. The deed from Taylor to Loftin was improperly admitted in evidence, it not having been duly recorded nor its execution proved. (The certificate regarded as imperfect authority for registration is set out hereafter.)
    2. Said deed was not properly recorded, in that certificates of prior date, indorsed on the deed, of its registration in Bobertson and B osque counties, were not recorded in the records of Erath county. (The certificate of record in Bobertson county bore date November 15, 1854, and in Bosque county, May 10, 1855. Both were shown to have b.een indorsed on the deed, and to have been omitte d by the clerk of Erath county in his registration.)
    3. In not requiring plaintiff to deraign title from the state. (The plaintiff read a deed from Wm. Taylor, a son. of Josiah Taylor, under whom the plaintiff held.)

      Martin <& Kennedy, for appellant.

      Ward & Pendexter, for appellee.
   A. S. Walker, J.

We are required to pass upon the sufficiency of the proof of a deed under the registration laws certified by the following certificate:

“ The State oe Texas, Robertson County.

“Personally came and appeared before me, Samuel B. Killough, chief justice, ex officio notary public said county, John J. Loftin, known to me, and, after being duly sworn, saith, on oath, that Josiah Taylor signed, sealed and delivered the foregoing deed for the purposes therein expressed, and that he signed the above and foregoing deed from Josiah Taylor to Wm. B. Loftin as a subscribing witness at the request of the said Josiah Taylor. All of which I certify under my hand and seal of office at Wheelock, this 11th day of November, 1854. Saml. B. Killough,

“ Chief Justice and ex officio Notary Public, Robertson Co.”

It was admitted that John J. Loftin was a subscribing witness to the deed, and that the deed and authentication had been recorded 13th July, 1876.

Under the statutes subscribing witnesses may perform an important part in the execution of deeds. A strict construction of the statute has led eminent members of the legal profession to the opinion that such witnesses are necessary to pass the legal title. Pas. Dig., 1000.

Whatever of aid a deed may have from such witnesses was afforded at the execution of this deed.

The witness John J. Loftin was, in fact, a subscribing witness. His affidavit before the chief justice, Killough, further.shows that “he (John J.Loftin)signed the foregoing deed from Josiah Taylor to William B. as a subscribing "witness at the request of said Josiah Taylor.” This testimony necessarily supports: (1) that the deedfrom Taylor to Loftin was before the witness at his signature in his participation in its execution; (2) that Taylor also was present, and as grantor requested the witness, Loftin, to attest its execution by signing as a witness; and (3) that the witness signed it, thereby attesting its execution by the grantor.

The witness had already stated “ that Josiah Taylor signed, sealed and delivered the deed for the purposes therein expressed.” This last statement is defective as a compliance with the registration law only in failure to state the means of the witness’ knowledge of the fact, whether from his seeing the grantor sign, or from his acknowledging it. But this statement of the witness, taken in connection with the facts detailed by him as already noticed, of his own participation in the execution of the deed, and at request of the grantor, connects the grantor, the witness and the instrument in its execution at its date, so that necessarily the signing, sealing, etc., at the time were in the witness’ presence.

The affidavit as a whole means that Loftin, a subscribing witness, was present at the execution of the deed, and after its signature by Taylor, and at his instance signed the same as a witness, and that Taylor signed, sealed and delivered it in the presence of the witness; a substantial compliance with the statute.

In this ruling we do not go beyond the authorities. Dorn v. Best, 15 Tex., 65, held that a deed was sufficiently proved for record by the affidavit “ that the grantor executed the deed in his (the witness’) presence, and acknowledged she had done the same for the purposes therein expressed;” the court holding that such proof was satisfied when the witness could show that he saw the grantor subscribe the same. “ And as the witness was present at the execution of the instrument and subscribed his name as witness, it was not necessary” further (p. 66).

Deen v. Wills, 21 Tex., 645, held that such certificates should be liberally construed, and a substantial compliance would be sufficient.

Monroe v. Arledge, 23 Tex., 481, held that the object to be ascertained from the proof was whether the grantor did execute the deed.

Belcher v. Weaver, 46 Tex., 298, held, even in the privy acknowledgment of - a married woman, a substantial compliance would be sustained, and a literal exactness would not be required.

2. As to the omission of the county (or district) clerk to record the certificate of registration indorsed on the deed by the clerk of Bobertson county.

The statute authorizes the registration of deeds, etc., relating to lands where authenticated for record. The record must show the deed and the certificate authorizing such record. Upon such registration the deed is duly recorded. Taylor v. Harrison, 47 Tex., 458.

[Opinion delivered June 21, 1880.]

The failure of the clerk in copying what else is made his duty will not vitiate the record of the deed. We consider the statute but directory in prescribing what the clerk shall copy into the record books beyond the essential parts of the record, viz., the instrument and the certificate of authentication. The registration of a deed, as in this case, in a county other than where the land affected by it wTas situated, would in no way affect the rights of any party. As the registration in Eobertson county was in law a nullity, the certificate of it would have no greater effect.

3. That the defendant claimed title to the land under an heir of Josiah Taylor, under whom the plaintiff held, was sufficient evidence, prima fade, of common source, to maintain the-plaintiff’s title as against the defendant, if otherwise good.

Finding no error, the judgment below should be affirmed.

Affirmed


author: A. S. Walkek, J.

text:
    Richard S. and Easter E. Skaggs v. S. H. Mulkey.
    (Case No. 4196.)
    1. Homestead.—The defendant, Eichard S. Skaggs, exchanged an interest in a mill for a tract of land in Johnson county, and, because it was rented out for that year, took a-bond for title. Before occupying the land he purchased of S. H. Mulkey, on a credit, a half interest in a mill at Fort Worth, for $1,600, assigning as additional security the title bond for the Johnson county land, and afterward caused a deed to be made to Mulkey therefor. Failing to pay for the mill property, his interest in it was sold under foreclosure proceedings, leaving a large portion of the debt unpaid. Skaggs separated from his wife, and she, after a time, moved on the Johnson county land. Afterwards tlie husband returned to his family, and they were living on the land when Mulkey brought suit for it. The land never having been occupied as a homestead before the title bond to it had been assigned and used as a credit in making the purchase of the Fort Worth mill property, the claim of Mulkey was superior to any homestead rights of Skaggs or his family, and the judgment of the court holding the deed to Mulkey a mortgage for the balance due on the mill, and ordering a sale of the land to satisfy it, was not erroneous. Baird v. Trice, 51 Tex., 555; Thompson on Homestead, secs. 244, 245, 255.
    Appeal from Johnson. Tried below before the Hon. Jo. Abbott.
    On the 10th day of June, A. D. 1876, Mulkey, in the district court of Johnson county, Texas, brought an action of trespass to try title against E. S. Skaggs, one of the appellants, for two hundred acres of land, situated in Johnson county, a part of the B. S. Jenkins survey Ho. 28, and fully described in the original petition. On the 23d day of June, E. S. Skaggs, one of the appellants, filed a general demurrer and general denial. On the 20th day of December, 1877, Easter E. Skaggs, one of the appellants, and wife of E. S. Skaggs, by leave of the court made herself a party defendant, and they filed their amended answer, in which they alleged: That in' 1874 they owned a one-half interest in certain property, situated in Hill county, Texas, known as the Winney Mills, upon which they then resided as their homestead. That on the 3d day of February, A. D. 1874, they exchanged the said mill property for the land in controversy with one John Winney, and that said Winney, not being in an attitude to make a deed, executed to E. S. Skaggs his bond for title. That E. S. Skaggs traded for the land in controversy with the intention of. making the same his homestead, and as an evidence of this that they sent some of their plunder upon the said land, etc., and would have taken possession but that one Knight held it as tenant of John Winney.
    That E. S. Skaggs then purchased of appellee a one-half interest in certain property situated in Fort Worth, Tarrant county, Texas, known as the “ Fort Worth Mills,” for which he agreed to pay him $1,600, for which sum E. S. Skaggs executed his note for $1,600, and to secure its payment transferred the said title bond which he had gotten from Winney for the land in question to appellee. That when John Winney got ready to make an absolute deed to the land in question, E. S. Skaggs procured John Winney to make the deed to appellee, but that the same was done without the consent or knowledge of Easter E. Skaggs; and further, that said deed was only intended as a mortgage to secure appellee in the payment of the said $1,600. That at the June term of the district court of Tarrant county, Texas, appellee instituted suit against E. S. Skaggs on the $1,600 note, and procured judgment with decree of foreclosure on the Fort Worth mill property, had the same sold and bought in at $600, etc., and failed to give appellants credit for the said $600. A copy of judgment and execution, etc., is made part of answer. That at the time of the transfer of the title bond and the making of the deed, the land in controversy was the homestead of appellants, and that they were in possession thereof, etc.
    On the 6th day of June, A. D. 1879, appellee filed his supplemental petition, alleging the following, to wit:
    1st. Admitting the sale of the Hill county mill property to John Winney, the purchase of the land in question and the execution of the title bond, etc.
    2d. Denying that the land in question was purchased for a homestead by appellants, or that the same was or ever had been the homestead of appellants.
    3d. Admitting the sale of his one-half interest in the Fort Worth mill property to appellant E. S. Skaggs for $1,600; the execution of the note, transfer of the title bond, and the execution of the deed from John Winney to appellee; that all this was done with the knowledge and implied consent of Easter E. Skaggs.
    4th. That E. S. Skaggs was a miller by profession, and that his sole object and purpose of exchanging the Hill county mill property for the land in question was to enable him to purchase appellee’s interest in the Fort Worth mill property and not for the purpose of a homestead.
    5th. That, immediately upon the trade with appellee, appellants removed to Fort Worth, Tarrant county, Texas, and took possession of the mill, and that in the month of Kovember, A. D. 1874, B. S. Skaggs, finding that he could not pay appellee the $1,600 note, caused John Winney to execute to appellee his deed to the land in controversy, the consideration expressed in the deed being $1,600, but with the understanding that if appellee could sell the land for $1,600 he would give up the note; otherwise he would give him a credit of $1,000 on the note.
    6th. That appellants continued to reside near and control the Fort Worth mill till in 1876, when they separated, and B. S. Skaggs left the state; that after the separation Easter E. Skaggs continued to live at Fort Worth, and off of the income derived from the mill, for several months, and then she left Fort Worth and went upon the land in controversy, and claimed it for the first time as a homestead; that prior to 1876 they had never claimed or held possession of the same as a homestead by tenant or otherwise.
    7th. That appellee did bring suit on the $1,600 in Tarrant county and foreclose his vendor’s lien on the mill property, and buy same in at $300, for which amount he gave appellants credit, and that appellant, B. S. Skaggs, was still indebted to him in the sum of $1,200.
    8th. Concluding with prayer as in his original petition, and with an alternative prayer to the effect that in case the court should construe the deed from John Winney to appellee as a mortgage, for judgment for debt,, with decree of foreclosure, etc.
    The statement of facts shows substantially the following: Mulkey, the plaintiff, testified “that he resided in Fort Worth. Knows defendants. In the spring of 1874 they resided in Johnson county, living in Cleburne, keeping house; defendant B. S. Skaggs working at Lott’s mill. In the spring of 1874 defendant B. S. Skaggs came to Fort Worth, and proposed buying of witness his half-interest in the Fort Worth mill property. ... A short time afterwards witness and his brother visited the land in controversy, on which a tenant, Knight by name, was residing. We went to Cleburne, where defendants were residing, and E. S. Skaggs agreed upon the trade. I sold him the Fort Worth mill property for $1,600, and took his note for the amount, with the vendor’s lien; and, as additional security for its payment, the defendant transferred to me the title bond which he held from John Winney for the land in controversy. The trade was made in town, but the note was written in the dwelling-house of defendant, and the transfer of the title bond was made in writing, and at the same time and place; and were both delivered to me in the said house of defendants, in Cleburne, Texas. It was in the spring or summer of 1874. Soon after the trade, defendants, with their children, removed to Fort Worth, Tarrant, county, Texas, and rented a dwelling-house near the mill; and defendant E. S. Skaggs went to work in the mill, and in a short time I executed to him my deed to a half-interest in the Fort Worth mill property, retaining a lien for the purchase money.
    “In a few months defendant E. S. Skaggs found he would be unable to pay, and, learning that Winney was ready to make a deed to the land in controversy, came to me and requested me to have the deed to the land made direct to me. This I consented to do, and gave the bond to defendant, and requested him to go to Hill county and have Winney to make the deed. This he (Skaggs) did, and in a few days returned and delivered me the deed of- John Winney, together with the title bond. . . .
    “ I took possession of the land, and rented it in the year 1875. Collected the rent, and paid some of the debts of defendant with it for which I was surety. The defendants, Skaggs and family, continued to reside in Fort Worth till the beginning of the year 1876. The defendant B. S. Skaggs and his wife separated, and E. S. Skaggs left the country. His wife remained two or three months, and then left and came down to Johnson county and took possession of the land. In that year defendant E. S. Skaggs returned to his wife, and they were in possession of the land at the time of the institution of the suit. . . . Defendants, nor either of them, ever told witness the land was bought by them for a homestead. They were not living on it at the time of my purchase, and had never lived upon it at all. The land is about fifteen miles southwest of Cleburne, where they resided at the time. Did not speak to Mrs. Skaggs. Don’t know whether she knew anj'thing of the trade, though I supposed she did, as we all talked the trade over in her house. She came into the room one time; can’t say she heard us. She made no objection to the trade. She moved with her husband to Fort Worth, and lived there with him. . . . After Skaggs left the mill was rented at $50 per month — the money going to pay mill debts and debts of Skaggs for which plaintiff was surety. . . . The vendor’s lien was foreclosed, and $300 realized. Mo credit was allowed in the suit for the land. Witness could not get possession of it,” etc.
    It was agreed that both parties claimed under Winney. The title bond from Winney to Skaggs bore date 3d February, 1814, and acknowledged payment. The assignment by Skaggs of the title bond was read in evidence; also deed from Winney to plaintiff of date November 3, 1814, for the land. Also Mulkey’s deed to Skaggs for one-half interest in Fort Worth mill property, of date August 10, 1814.
    The testimony for defendants, in substance, is as follows (from brief for them):
    E. S. Skaggs testified that he fully paid John Winney the purchase price of said land; that when he acquired it be was a. married man, had four children, and that E. E. Skaggs then was and now is his wife; that he bought it with the intention of making it his home, but that it was rented to one Knight for that year; that Knight became his tenant, and that he sent him on the premises a bedstead, some chickens, and other articles, until he should return to the place, which he intended doing as soon as Knight’s term of lease was out; that he afterwards came to Cleburne, and, while living there in a rented house, made this trade with plaintiff for the Fort Worth mill property, and that, when he returned to the land, the dog, and chickens, and bedstead, were gone.
    • Mrs. E. E. Skaggs testified that Skaggs traded for said land for a homestead, and would have moved upon it instead of coining to Cleburne in the spring of 1874, but that he could not get possession; that defendants intended to move upon it as soon as Mr. Knight’s lease was out, which was the following winter, and that with this intention she sent some of her things over there when defendants moved to Cleburne in the spring or summer of 1874; that she always intended to move back upon .the land and hold it as her homestead.
    Mr. Knight testified that he lived on the land when defendants bought it from Winney; that B. S. Skaggs and Winney came to him in his field and told him of the trade, and he agreed to become Skaggs’ tenant; that Skaggs said to him that he was getting old and had bought this place for a home for his wife and children; that he intended for them to live there while he run the mill business. This was before defendants removed from the Winney mill property to Cleburne; that about the time they started from thefe to Cleburne, witness came by their house and they asked him to take home with him part of their things; that he brought one bedstead, a gun, some chickens, and a box with something in it; that defendants told him to take care of them until they should call for them, which, from what B. S. Skaggs had previously said in the field, witness understood to mean when they moved on the land, which he supposed they would do when he got off. Witness left the place in the fall of 1874.
    Mr. Hopkins testified that while defendants were residing in Cleburne in the spring of 1874, and soon after they acquired this land, they stated to him that they had bought it for a home.
    In rebutting, Geo. Mulkey, in- substance testified: “Am brother of plaintiff. Knew defendants in 1874, when I resided in Cleburne and ran a mill. In the spring became acquainted with defendant, who was working at Lott’s mill, in Cleburne. He told me had sold his mill property in Hill county and had purchased, some land which he wanted to trade for some good mill property elsewhere. That he wanted to get away from the Brazos, for his family was always sick with the chills. I told him my brother owned a half interest in the Fort Worth mills - and was anxious to sell, and I thought he could make a trade. He said he would go up and see him. I then gave him a letter of introduction to my brother and he went up to the Fort and saw him. In a short time my brother came down and I went with him to look at the land in controversy. We came back and traded with defendant. Defendant gave him $1,600, in a note with vendor’s lien on the Fort Worth mill property, and took a transfer of the title bond which defendant then had for the land in controversy as a security for the payment of the note. I wrote the note and also the transfer of the bond at the house of defendants, in Cleburne. The defendant Mrs. Skaggs was in the room while we were writing and talking of the trade. We talked in an ordinary tone. The room was small, and I think she must have heard what we were talking about. I know she was in the room once. I remember speaking to her about looking so badly and about getting out of that sickly country. She made no objections to the trade and said nothing about it. I do not know that she understood what the trade was. After the trade both defendants removed to Fort Worth and rented a dwelling-house near the mill, and continued to reside there until fall of 1875, when defendant left his family and the state. Two or three months afterwards Mrs. Skaggs sold her hogs about the mill for- a horse, and left, saying she was going to her sister’s, near Cleburne. I never heard of her on the land in Controversy. The deed to the land was executed to plaintiff1 by Winney, at request of defendant.” . . . (Testimony touching conditions of the deed, etc., and same as plaintiff.) “I knew as much about the trade as plaintiff, because I helped to make it. I did not know that defendant drank to excess until six months after he moved to Fort Worth, when he became dissipated, neglected his business, became involved in debt. ... I ran the mill and rented it after defendant left.” . . .
    The case was tried without a jury, and October % 1879, judgment was rendered for plaintiff against Skaggs for $1,600, w'ith decree subjecting the lancl to the debt and ordering sale for costs. The defendants appealed and assigned errors:
    1st and 2d. Error in holding that the deed from Winney to plaintiff was a valid lien in preference to the homestead rights of defendants.
    3d. The pleadings were insufficient to support the judgment as rendered; and
    4th. The judgment is against the law and evidence, the testimony showing that the land was the homestead at the time of the execution of the instrument under which plaintiff claims, and said document is not executed by the wife so as to conclude her rights, nor is there evidence of abandonment.

      Oatis & Kouns, for appellants.

      W. Poindexter, for appellee.
   A. S. Walkek, J.

The questions submitted really constitute but the one issue, whether the court erred in holding the land subject to the debt as against the homestead rights of the defendants.

The testimony shows an exchange of lands made Febru-. ary 3, 1874, in which E. S. Skaggs received a title bond for the land in controversy, acknowledging payment The land was in the possession of a tenant for that year, so' that Skaggs and family could not move upon it. The tenant, however, at once attorned to Skaggs.

Upon this the equitable title to the land became complete; and had the homestead been fixed upon it by any mode recognized by the law, its quality as such would not be changed save by conveyance by husband and wife, with her privy acknowledgment, or by its abandonment as the homestead.

There is testimony of declarations of intént to make the property the homestead — made by both husband and wife. These declarations, and the testimony given as to such intent as a fact, together with the evidence that a few articles of furniture and personal property were sent to and left on the place soon after its purchase, are relied on by the defendants.

On the other hand, is the fact that no residence ever was fixed upon the land until the early part of the year 1876, more than one year after the title bond had been used as a means of credit in the purchase of the Fort Worth mills, and subsequent to the conveyance to plaintiff of the legal title by Winuey.

Add to this, that Skaggs and his family resided, subsequent to his purchase, at Cleburne, in business some distance from the land, and that he, sought out the plaintiff and traded with him, using the title bond as security, without disclosing his intentions respecting the homestead; that contrary declarations touching his intent were made to Geo. Mulkey, that he wished to trade the land for mill property, and had bought it' for that purpose; the subsequent movements of the family; the probability of Mrs. Skaggs’ participation in the trade, etc.

The presumption of the continuance of homestead cannot be invoked until it be shown to have existed. The cases, ■ therefore, of Gouhenant v. Cockerell, and Sylvan v. Coffee, do not apply.

The case of Baird v. Trice, 51 Tex., 555, recognizes the superiority of even an attachment lien, as against an intervening homestead, subsequent to the levy, and prior to the sale.

If the land was not homestead at the date of the assign* ment of the title bond to plaintiff, the subsequent occupancy by the defendants would not avoid his lien.

In the absence of any actual residence (or probably of a record destination), what would be a designation or dedication, and whether it exists, are questions of fact and not of law.

What acts short of occupancy in fact will or will not be evidence of a destination; what public or private expressions of intent as to future occupancy as homestead, will make the property a home, cannot, as matters of law, be decided. The destination as a fact is to be determined by the jury or court, from the testimony in each case.

[Opinion delivered June 21, 1880.]

We consider that there was not necessarily error in the court holding, from the testimony, that the intent to make the place their home, not followed by any actual occupancy, was ineffectual asa destination of it as homestead against the creditor obtaining a lien, knowing the land had- never been so occupied, and ignorant of any intent to constitute .it a homestead at the date of his lien. Thompson on Homestead, §§ 244, 245, 255.

Finding no error, the judgment below should be affirmed.

Affirmed.