Ghent v. Boyd

• Decision Date: 19 January 1898
• Citation: 43 S.W. 891
• Parties: GHENT v. BOYD et al.
• Court: Texas Court of Appeals

43 S.W. 891

GHENT v. BOYD et al.

Court of Civil Appeals of Texas.

January 19, 1898.

Error from district court, Bell county; W. A. Blackburn, Judge.

Trespass to try title by H. C. Ghent against Mrs. A. F. Boyd and J. W. Boyd, her husband. From a judgment in favor of defendants, plaintiff brings error. Reversed and remanded.

John B. Durrett and Winbourn Pearce, for plaintiff in error. A. M. Monteith, for defendants in error.

FISHER, C. J.

This is an action in trespass to try title, brought by plaintiff in error, Ghent, against Mrs. A. F. Boyd and her husband, J. W. Boyd, to recover lot 1 in block 86 in the town of Belton. Mrs. Boyd (who was formerly Mrs. Trigg), in her answer, alleged that plaintiff, Ghent, asserted a pretended title to the land by virtue of a purchase thereof by him at execution sale under a judgment obtained in his favor against her former husband, C. L. Trigg, and charged that, at the time that the land was sold under execution, it was her homestead, and not subject to forced sale; she at the time being at the head of a family. It is further averred that she has a superior right to and lien upon the land in controversy to any claim of the plaintiff; that in a divorce suit between her and her former husband, C. L. Trigg, the land in question, together with other property belonging to her and her husband, was sought to be partitioned, and in which was adjudged a liability in her favor against the interest of her former husband, Trigg, in and to any of the community property owned by him; and that the judgment of the court rendered in that case was in her favor, granting her a divorce, and adjudging against the property in controversy (which was held in that case to be community property) a lien in her favor for certain moneys owing her by Trigg, and charging against the interest of Trigg in the property in controversy the costs of the litigation which arose in the divorce suit, and for which judgment was rendered against Trigg. The court below charged the jury as follows: "In regard to the question of separate property, you are instructed that the record evidence in this case establishes the title in the property, at and prior to said judgment, as being community property, and you must so consider it. And it is immaterial whether it was a homestead or not. If it was, as soon as the divorce was granted Trigg's portion became liable for his debts. And, if plaintiff's lien is superior to defendants', then you will find for plaintiff. You are instructed that the record evidence in this case shows that at the time plaintiff's lien took effect, to wit, on the 18th day of December, 1888, said divorce suit was pending, and had been pending since the ____ day of March, 1888. The decrees in said divorce suit, dated on the 19th day of December, 1888, and on the 23d day of January, 1889, which declared the premises in dispute to be community property of said C. L. Trigg and the defendant Mrs. Boyd, at the same time declared a lien on C. L. Trigg's interest in the same, to the amount of four hundred and sixty-three dollars and thirty-five ($463.35) cents. Interest on said sum is allowed at the rate of eight per cent. per annum. Said decrees also establish a lien in behalf of said Mrs. Boyd for certain costs specified therein, and the amount of which the record evidence shows to have been $646.44 on the 5th day of April, 1889, and to have been paid by defendant Mrs. Boyd prior to the 1st day of January, 1890, on which last-mentioned sum interest is allowed at the rate of eight per cent. from 1st day of January, 1890, to the 11th day of July, 1892, and at the rate of six per cent. since July 11, 1892. These two amounts (that is, the item for $463.35 and the item for $646.44) are prior and superior liens to the one established by plaintiff as they take effect from the date of the filing of the suit of Ann F. Trigg vs. C. L. Trigg for a divorce, on the ____ day of March, 1888, while plaintiff's claim takes effect from the date of filing his abstract of judgment, on the 18th day of December, 1888. Now, if these two claims of defendant Mrs. Boyd exceed the value of C. L. Trigg's interest in said community property, then there was nothing that plaintiff's said lien could subject to the payment of his said judgment; and, if you so believe, you will find for defendants. You will say by your verdict what the present value of the property in dispute is, according to the testimony before you." In response to this charge the jury returned the following verdict: "We, the jury, find for defendant, and say by our verdict that the principal and interest is $1,735.18, and value the property at $2,000." Upon which the court rendered judgment as follows: "It is therefore ordered, adjudged, and decreed by the court that defendant Mrs. A. F. Boyd, who is joined in this cause, pro forma, by her husband, J. W. Boyd, has just and subsisting claims against her former husband, C. L. Trigg, amounting to the sum of seventeen hundred and thirty-five and 18/100 dollars ($1,735.18), which are secured in their payment by a valid and subsisting lien on the land in controversy in this cause, to wit, situate, lying, and being in the county of Bell, and state of Texas, within the corporate limits of the city of Belton, and a part of the M. F. Connell league, lying south and adjoining Avenue street, and west of a lot owned by James P. Coop, north of and adjoining Noland's creek, and east of lot owned by Willie and Laura McGuire, and being known as `Lot No. 1, Block 86, of the City of Belton.' Said lot was conveyed by A. G. Parnell to C. L. Trigg by deed dated December 21, 1882, and recorded in Deed Records of Bell County, Texas, book 41, pp. 201 and 202, which said claims against C. L. Trigg, and the foreclosure of said lien on said land, were established by a former valid, subsisting judgment of this court, wherein Mrs. Ann Frances Trigg was plaintiff and C. L. Trigg was defendant, which said lien is a preference lien on the land in controversy in this cause, above described, to the lien and claim of plaintiff in this cause on said land by virtue of his judgment against C. L. Trigg, and the filing and indexing of his abstract of judgment, and his levy of execution on, and sale of, said land, as the property of C. L. Trigg; and it further appearing to the court that the value of said land and premises in controversy in this cause, as fixed by the verdict of this jury, is two thousand dollars, and that Mrs. A. F. Boyd's claims on said land, secured by a preference lien, as aforesaid, at the time when H. C. Ghent acquired any right, lien, claim, or title thereto, exceeds the full value of any interest C. L. Trigg had therein, and which does still so exceed the value of any interest H. C. Ghent has therein, as claimant of the former rights of C. L. Trigg: It is therefore adjudged and decreed by the court that plaintiff, H. C. Ghent, recover nothing by his suit, and that defendants A. F. Boyd and J. W. Boyd go hence without day, discharged, and that said defendants recover judgment against plaintiff, H. C. Ghent, establishing her claims, which are secured by a judgment and preference lien against the premises in controversy for the sum of seventeen hundred and thirty-five and 18/100 dollars ($1,735.18), bearing interest from this date at the rate of six per cent. per annum, and that she may have her order of sale, and that said premises may be sold as under execution, and the proceeds applied to the satisfaction and discharge of her claims against said premises; but as to said claims against C. L. Trigg, to be hereinafter enforced, and any costs arising from the execution of said order of sale, the same are in no sense a personal judgment against H. C. Ghent, plaintiff herein. It is further ordered that the officers of court shall have their execution against each party, respectively, for the costs by him or them in this behalf incurred."

It appears from the facts that in March, 1888, Mrs. Boyd (formerly Mrs. Trigg) sued her then husband, C. L. Trigg, for divorce, and in that suit alleged that the property in controversy was her homestead and her separate property, and also alleged that Trigg was indebted to her by reason of the use by him of funds and property belonging to her in her separate and individual right, and that he had used and appropriated to his own use much of the community estate owned by them. On the 19th of ...