Andrews v. Hagadon

• Decision Date: 28 March 1881
• Docket Number: Case No. 1191.
• Citation: 54 Tex. 571
• Parties: WRIGHT S. ANDREWS ET AL. v. ISABELLA HAGADON.
• Court: Texas Supreme Court

54 Tex. 571

WRIGHT S. ANDREWS ET AL.

v.ISABELLA HAGADON.

Case No. 1191.

Supreme Court of Texas.

Mar. 28, 1881.

APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.

The following statement of the pleadings given by appellant is adopted as correct; the evidence is sufficiently stated in the opinion for an understanding of the case:

Suit was brought January 19, 1878, by Isabella Hagadon, widow, against Thomas H. Edgar, to recover the amount of a promissory note made by Thomas H. Edgar, dated 1st September, 1873, due twelve months after date, for the sum of two thousand dollars, with twelve per cent. interest (less a credit of $340), and against the heirs of Alexander Edgar and E. R. Edgar, to foreclose a mortgage or deed of trust, made by Thomas H. Edgar, under a power of attorney made by Alexander Edgar and his wife, dated August 11, 1873, authorizing Thomas H. Edgar to mortgage lot 5, in block 378, the property of Alexander Edgar and wife, in the city of Galveston, to effect a loan, and borrow money for himself, and thereupon to assure and secure the payment thereof, to grant and deed by mortgage or deed of trust, or other instrument in writing, on lot 5, in block 378, in the city of Galveston.

Thomas H. Edgar made no defense, and judgment was rendered against him by default, for the amount of the note and interest.

The other defendant answered, and pleaded that the debt was the personal debt of Thomas H. Edgar, and not the debt of Alexander Edgar and wife; that Edgar and wife were but sureties, and that the sureties were discharged by neglect of plaintiff to enforce her debt against Thomas H. Edgar during the lives of said Edgar and wife; that Edgar and wife were dead, leaving constituents of their family; that the lot on which the foreclosure was prayed was, at the time of the death of Edgar and wife, a part of the homestead of the family of Edgar and wife, and that all the lots comprising the homestead did not cost five thousand dollars at the time of their designation as homestead, and denied all allegations of plaintiff.

January 22, 1879, plaintiff on leave filed first supplemental petition, and demurred to answers of defendants, again setting up execution of mortgage under the power of attorney and denying the homestead claim, and alleged that Edgar and wife had abandoned the homestead, and acquired a homestead in Chambers county and died there, leaving no debts, and there had been no administration on their estate; that the children of Edgar and wife, long before the decease of their parents, had become of full age or married; that the mortgaged lot had not, since the execution of the trust deed, been occupied by Edgar and wife, and had long since ceased to be homestead.

January 24, 1879, defendants set up that the homestead of Alexander Edgar and wife for twenty-five years last past before their decease consisted of lots 5, 6 and 7, in block 378, in the city of Galveston, and did not cost $5,000 when designated as homestead, with the buildings and other improvements thereon, under one enclosure; that they were occupied during said years by Alexander Edgar and wife and family, until in 1861, on account of the war, Edgar and wife rented out the property temporarily, and went into Chambers county as visitors, and resided with their son-in-law, W. S. Andrews, in Andrews' house as guests, where they died, but did not abandon their homestead rights in Galveston property; that at the death of Edgar and wife the constituents of the family were residing together as a family--Fanny Andrews, daughter; Phoebe Wescott, grand-daughter; minor Alice Patrick, daughter; Sydney V. Patrick, grandson; and that the homestead property vested by law in the heirs of said Alexander Edgar and wife, subject only to distribution among the heirs, and free from the claims of creditors of Alexander Edgar and wife; pleading that the said Edgar and wife were only sureties for the payment of the debt of Thomas H. Edgar; and a year or more after it became due, the plaintiff, in consideration of one hundred dollars paid to her by said Thomas H. Edgar, granted him additional time on the debt without the consent of defendant parents' sureties thereon, and pleaded that the sureties were thereby discharged in person and property.

January 28, 1879, the guardian for minor defendants adopted supplemental answer of the adults. There was judgment by default against Thos. H. Edgar; and Thos. M. Joseph, trustee, came in and made himself party. January 31, 1879, judgment final against Thos. H. Edgar for $2,720, with interest. The other defendants having submitted the matters affecting them to the court without a jury, the court adjudged the lien claimed by plaintiff under the trust deed on lot 5, block 378, and the improvements thereon established, and ordered it to be foreclosed and sold by the sheriff of Galveston county; the proceeds to be applied to the satisfaction of the judgment against Thos. H. Edgar, and interest and cost, and the balance to defendants.

Edward T. Austin, for appellants.

I. The court erred in its ruling on the facts in evidence; that Alexander Edgar, the ancestor of these defendants, by building a house on lot 5 of his homestead, consisting of three lots, and fencing off a part of said lot with said house from the other lots, and renting the house to strangers, abandoned said lot 5 as a part of his homestead, although the three lots, when acquired and designated as a homestead, did not exceed in value the constitutional exemption; and that the said lot 5, after his death, leaving constituents of his family surviving, was liable to forced sale for the payment of a security debt. Const. of 1869, sec. 15, art. XI; Const. of 1876, sec. 50, art. XVI; sec. 51, art. XVI; sec. 52, art. XVI; Rev. Code, p. 31; Statute 1870, p. 127, “An act defining the homestead and other property exempt from forced sale;” Cross v. Evarts, 28 Tex., 533;Shephard v. Cassiday, 20 Tex., 24; Taylor v. Boulware, 17 Tex., 97; Gouhenant v. Cockerell, 20 Tex., 98. [Second assignment of error by adult defenda...