Allison v. Shilling

• Decision Date: 01 January 1864
• Citation: 27 Tex. 450
• Parties: J. B. ALLISON AND WIFE v. J. C. SHILLING.
• Court: Texas Supreme Court

27 Tex. 450

J. B. ALLISON AND WIFE

v.J. C. SHILLING.

Supreme Court of Texas.

1864.

It is a general rule in equity pleading that all persons whose interests are to be affected by suit are necessary parties to it.

A. made his title bond for land to B., who subsequently assigned and transferred the same to C. Afterwards, C. executed his own bond for part of the land to D., and the latter subsequently conveyed the same land by his title bond to the plaintiff, who sued A. for a specific performance. Held, that there is no privity of contract between the plaintiff and the defendant, and that the persons through whom the plaintiff derived his equitable title were necessary parties, for the nonjoinder of whom the exception of the defendant to the plaintiff's petition ought to have been sustained.

NOTE.--Huffman v. Cartwright, 44 Tex., 296.

The bond of a husband to convey, at a future day, a tract of land which then was the homestead of himself and wife, is not an unlawful undertaking, though it would not be enforced, against the wife's objection, so long as the land remained the homestead of the family.

NOTE.--He may be sued for damages during the life of his wife, and, at her death, may be compelled to execute the deed in compliance with his previous contract; and more especially where he sets up a claim to the homestead for himself alone. (Wright v. Hays, 34 Tex., 253.)

But, after the wife has voluntarily left the former homestead, and has accompanied the husband to, and accepted, the new homestead provided by him, she can no longer insist that her homestead rights still attach to the abandoned premises.

The object of the constitution in this particular is to secure a home to the wife and family against the improvidence of the husband; but it does not intend to jeopardize the rights of other parties, or to leave the wife in doubt as to what premises her homestead rights attach, if, at different times during coverture, she has removed with her husband from one homestead to another.

APPEAL from Tyler. Tried below before the Hon. J. M. Maxcy.

John C. Shilling, the appellee, brought this suit in the district court of Tyler county, to compel the appellant, Joseph B. Allison, to execute to the plaintiff a “warrantee title” to a tract of one hundred and sixty acres of land, described by metes and bounds.

The petition was filed March 1, 1858, and alleged that the defendant, on the 19th of December, 1851, executed and delivered his title bond to Thomas B. Greenwood, covenanting therein to convey title to said Greenwood to two tracts of land in Tyler county of 160 acres each, so soon as patents should be issued by the state. That afterwards the said Greenwood assigned and transferred all his rights in said land to James R. Washington. That on the 20th day of January, 1854, the said Washington made and delivered to one Jeremiah Jones his bond for title to one of the two tracts mentioned in the bond of Allison to Greenwood, and bound himself in a penalty of $500 to make to Jones or his heirs, or assignees, a good title thereto so soon as he should procure title from Greenwood. That Jones and wife, on the 7th of March, 1857, made their bond to petitioner, covenanting to convey title to him for the last mentioned tract upon his payment of $485 purchase money then not due. That petitioner had fully paid to said Jones his purchase money, and that the defendant, Allison, had received all of his purchase money, and had obtained the patent for the land, but refused to convey title to the plaintiff. Prayer, that title be decreed to petitioner, or that the defendant be compelled to make to him a “warrantee title” for the land in controversy.

The defendant demurred generally, and also specially excepted to the petition on the ground that Jeremiah Jones and wife were shown by plaintiff's petition to be equitably interested in the suit, and were necessary parties to it. Other matters, not necessary to be specified, were set up in defense.

On the 3d of May, 1859, Sarah Allison, the wife of the defendant, filed her petition of intervention, and prayed that she be made a party to the suit. She alleged that in 1851, at the date of the defendant's title bond to Greenwood, the tract of land in controversy was the homestead of this intervenor and her said husband, and she avers that it is still their homestead; that she has never, on any occasion, given her consent, either directly or indirectly, to the sale of it; that she refused to sign or execute any bond for the same, or in any manner or form to relinquish her right thereto, and had told the said Washington, and also the plaintiff, that she would never convey it to any one; that some six months after the execution of the said bond by her husband, he removed himself and his effects to a portion of the vacant public domain in Tyler county, and that she followed and lived with him; but that she has never accepted, and does not now accept the same as a homestead in lieu of the premises described in the plaintiff's petition. Wherefore, she prays that the bond of said Joseph B. Allison be cancelled and annulled, etc.

To the petition of intervention, the plaintiff replied that the defendant Allison and his wife, since the execution of his bond to Greenwood, had acquired another homestead more valuable, or of equal value with the...