Henderson v. Ford

• Decision Date: 01 January 1877
• Parties: J. W. HENDERSON ET AL. v. CARRIE E. FORD ET AL.
• Court: Texas Supreme Court

46 Tex. 627

J. W. HENDERSON ET AL.

v.CARRIE E. FORD ET AL.

Supreme Court of Texas.

1877.

APPEAL from Fort Bend. Tried below before the Hon. Livingston Lindsay.

In 1860, Drury B. Bohanon became the owner of a tract of 328 acres of land in Fort Bend county. He inclosed a field of twenty-five acres; erected four or five cabins thereon; was a single man, and resided with his negroes on the place, cultivating it until September, 1861, when he joined the Confederate army. When he left, he empowered his brother-in-law, Dr. Prince, to sell the land, and to manage his business in Texas. The farm was cultivated by Bohanon's negroes, under the control of Dr. Prince. Bohanon married in Selma, Alabama, and in the latter part of the year 1863 returned to Texas on account of ill health, having consumption, leaving his wife in Alabama. After the close of the war, the wife came alone to Texas, having been written to by her husband, and walked part of the way, twelve miles, from Indianola, to where her husband was boarding. They lived with Dr. Prince and others, and in Fort Bend county, except a few months in Huntsville, Walker county, where Dr. Prince had removed.

Bohanon died in April, 1866, at Huntsville, at the house of Dr. Prince, of consumption.

In February, 1864, Bohanon, while his wife was in Alabama, and before she came to Texas, sold the land to Henderson and Chapman; he sent Dr. Prince to Houston to get the Confederate money, for which it was sold, and on receiving it, executed a deed, under the power of attorney executed in 1861, to the purchasers.

Bohanon and wife had never occupied the land after their marriage. The purchasers knew of the marriage before the purchase-money was paid and the deed executed. After Bohanon's death, his widow remained in Texas two or three months, and then returned to Alabama. At his death, Bohanon had no other property, and had desired to sell the land for the purpose of joining with Dr. Prince in the purchase of another tract adjoining Prince's farm. At the time of the sale, the premises were in a very dilapidated condition--fences down, and the cabins, made of poles, were in ruins, no one occupying them.

The widow, Mrs. Carrie E. Ford, brought suit against the purchasers for her homestead interest of 200 acres. Pending the suit, she married Rice. On the trial, the jury returned a verdict for her, on which judgment was rendered. A new trial having been overruled, the defendants appealed. The questions discussed in the opinion arise from the application of homestead laws and laws of domicile, to the facts. It is not, therefore, necessary to give any further statement of the pleadings or exceptions, &c., forming part of the record.

M. W. Garnett and F. W. Henderson, for appellant.

John T. Harcourt, for appellees.

MOORE, ASSOCIATE JUSTICE.

All of the errors assigned by appellants for the reversal of the judgment, unless it is the first, are too general and indefinite to require of us any special notice; and while the first supposed error pointed out by the assignment may not be subject to this objection, it is, intrinsically, entitled to no serious consideration. It has not been noticed by counsel for appellants, in their brief, and we may reasonably conclude that on reflection it was deemed by them to be untenable, and therefore abandoned.

If, however, we can regard the other errors complained of in the assignment as sufficiently definite, and as properly presenting for our consideration the objections to the judgment discussed by appellant's counsel, and upon which its reversal is insisted, we are constrained to say, in view of the numerous decisions of this court upon the subject, that we can see nothing in the record of which appellants have any cause to complain.

It cannot certainly be denied that the land in controversy was the home and residence of appellee, Carrie E. Ford's, former husband, D. B. Bohanon, from the time he improved and moved upon it, in 1860, until he joined the Confederate army, in the fall of 1861. Bohanon was, during this time, a single man, and the dwelling which he occupied was no doubt of a very unpretentious character, and may have been ultimately intended for the occupation of his servants, instead of himself; still, as it is not controverted that he and his servants lived upon the place, it must be admitted, if a man who has no family except his servants, may have a homestead, that he was entitled to a homestead on this land prior to his leaving it to join the Confederate army. There certainly can be no pretense that the possession and occupancy of the place was surrendered by Bohanon when he went to the army. He left his...