Freeman v. Hamblin

• Court: Texas Court of Appeals
• Writing for the Court: Collard
• Citation: Freeman v. Hamblin, 21 S.W. 1019, 1 Tex. Civ. App. 157 (Tex. App. 1892)
• Decision Date: 19 October 1892
• Parties: FREEMAN v. HAMBLIN et ux.

21 S.W. 1019

FREEMAN v. HAMBLIN et ux.

Court of Civil Appeals of Texas.

October 19, 1892.

Appeal from district court, Milam county; John N. Henderson, Judge.

Suit by Joe Hamblin and wife against D. C. Freeman for an injunction. Judgment was entered in favor of plaintiffs, and defendant appeals. Affirmed.

E. H. Lott, for appellant. Ford & Ford, for appellees.

COLLARD, J.

This is an injunction suit, brought by the appellees, Joe Hamblin and his wife, Lula Hamblin, on the 29th of February, 1888, against E. L. Antony, A. G. Wilcox, and the appellant, D. C. Freeman, and A. J. Lewis, the sheriff of Milam county, to enjoin the enforcement of judgment in suit No. 1,827, rendered in the district court. The father of plaintiff Joe Hamblin owned a tract of 420 acres of land, upon which he lived in his lifetime, and which, upon his death, was inherited by Joe Hamblin in 1882. After the marriage of Joe Hamblin with Lula Hamblin, they moved on the land as a home, where their three children were born, and where they have since lived. A few months after their marriage the plaintiffs sold and conveyed off of the south end of the survey 54 acres, and received in exchange from one Chamberlain 64 acres of land adjoining the unsold balance. On the 12th day of August, 1884, Joe Hamblin conveyed to J. R. Hardeman what was estimated in the deed as 220 acres of the 420 acres, beginning on the north boundary line, a base line, supposed by them to be 490 varas long, and running south, 19 west, 2,425 varas. The base line was really some 645 or more varas in length, so that, allowing the side lines to govern, about 276 acres were included in the sale. The deed contained the following explanation: "The intention of these presents being to convey to said Hardeman all of my said tract of land [the 420 acres] save and except a homestead of two hundred acres, measuring from the south boundary line thereof." Before the deed was made, Hamblin and Hardeman stepped off the distance from the north boundary, the estimated distance to include the 220 acres and "came out" as Hamblin testified, "where I claim the north line of the 200 acres to be. * * * I did not make the deed to Hardeman. I got H. N. Roberts to do so. I carried him the stepping of myself and Hardeman and suppose he made the deed accordingly. Hardeman and myself did not survey the land, but we intended to run the land out afterwards." Some time after the deed to Hardeman, Antony and Wilcox had an execution against Hamblin levied on the land described in the deed to Hardeman, under which it was sold, and purchased by them. At this time none of the parties knew where the lines would place the survey, or that they would include any of the 200 acres reserved as a homestead, or now claimed as Hamblin's homestead. The conveyance by Hamblin to Hardeman was made to place the land beyond the reach of his creditors. After the purchase by Antony and Wilcox, they brought suit in the district court of Milam county against Joe Hamblin and James Hardeman for the land. They appeared and answered, (Hamblin disclaiming,) and on the 20th November, 1886, Antony and Wilcox recovered judgment against both defendants for the land, canceling the deed from Hamblin to Hardeman. Writ of possession issued on the 10th January, 1887, and was returned executed by placing the agent of Antony and Wilcox in possession, without disturbing Hamblin's possession of the homestead claimed; the officer, and, it seems, all the parties being ignorant of the locality of the survey; that the side lines would include Hamblin's dwelling house, stable, barn, tenement houses, the family grave-yard, the spring, and about 20 acres of cultivated land. D. C. Freeman, appellant, who had purchased the land from Antony and Wilcox and their vendees, having ascertained that his survey, according to calls, would include such part of the homestead of Hamblin, the same being occupied by him and tenants, on November 26, 1886, in vacation, applied to the district judge for an alias writ of possession, setting out the fact that he had not been placed in possession. To this motion Joe Hamblin appeared, substantially setting up the facts stated in his bill for injunction, his homestead rights in the property, and the mistake of the parties as to the locality of the 220 acres; praying that his homestead be protected, 200 acres north from the north line of the 54 acres sold to Chambellain, a base of 645 varas, the side lines 1,750 ½ varas; and that the judgment in favor of Antony and Wilcox be so reformed as not to conflict with the homestead. Mrs. Hamblin was not a party to any of the foregoing proceedings. On the 29th November, 1887, this injunction suit was brought and filed by Hamblin and wife, claiming homestead on the 420-acre tract, 200 acres north of the Chamberlain 54 acres, setting up the foregoing facts, and asking for relief as before stated. The motion for alias writ of possession and the petition for injunction were heard by the district judge on the 29th February, 1888, at the same time, and both granted in chambers. The cause was finally tried October 24, 1888, and judgment rendered upon verdict for Hamblin and wife against all the defendants for their homestead, as claimed by them, perpetually enjoining the enforcement of the judgment in so far as it interfered with the title and possession of the homestead.

Some general observations as to the law applicable to this case will save us...