Blum v. Whitworth

• Decision Date: 01 June 1886
• Citation: 1 S.W. 108
• Parties: BLUM v. WHITWORTH.
• Court: Texas Supreme Court

1 S.W. 108

BLUM v. WHITWORTH.

Supreme Court of Texas.

June 1, 1886.

Appeal from Bosque county.

Trespass, by the purchaser at an execution sale, to recover lands from the execution debtor, who claims them as an exempt homestead, and, by way of cross-relief, asks a judgment quieting his title.

William M. Flournoy, for appellant.

ROBERTSON, J.

The verdict of the jury affirmed that the lots in controversy were the homestead of defendant at the date of the execution levy and sale of them, under which the plaintiff claimed. The three lots were sold under one judgment, but lots 7 and 8 were sold under one execution, and half lot 1 under another. The defendant, after pleading not guilty, under which he could have claimed the exemption, pleaded specially that the plaintiff claimed the lots through an execution sale, describing only the deed to lots 7 and 8, and prayed a cancellation of the deed as a cloud upon his title. It is now contended that the defendant, by these pleadings, confined his homestead claim to lots 7 and 8, and that the court erred in submitting to the jury any such issue as to half lot 1. There was no objection on the trial to testimony offered by defendant in support of his homestead right in the half lot, nor was any instruction asked or other step taken in the district court calling the attention of the court or the defendant to the supposed defect in his pleading. The construction insisted upon for the first time here seems to have been an after-thought. At all events, the plaintiff, it is clear, was not misled by the defendant's pleading. The defendant, by his plea, claimed the land in controversy as exempt, and the reference to the deed, in which only a portion of the land was described, was evidently not intended or understood to limit the extent of the claim. The court did not err in instructing the jury in accordance with the interpretation of the pleadings acted upon by the parties. The third assignment specifies no error, as has been repeatedly decided.

The fourth and sixth assignments complain that the testimony did not show a homestead use, or designation of the property for homestead uses, at the time of the levy through which plaintiff claimed. The statement of facts was made up by the court, and is exceedingly meager. It is almost certain that material facts were proved which are not in the record. For instance, as presented here, there was no proof that defendant had any family. If the assignments urged this defect, ...