Houston & Great N. R. R. Co. v. Winter

• Decision Date: 01 January 1876
• Citation: 44 Tex. 597
• Parties: THE HOUSTON AND GREAT NORTHERN R. R. CO. v. A. WINTER AND C. A. ABERCROMBIE AND WIFE.
• Court: Texas Supreme Court

44 Tex. 597

THE HOUSTON AND GREAT NORTHERN R. R. CO.

v.A. WINTER AND C. A. ABERCROMBIE AND WIFE.

Supreme Court of Texas.

1876.

APPEAL from Walker. Tried below before the Hon. J. R. Burnett.

The Houston and Great Northern Railroad Company brought trespass to try title against A. Winter, for 320 acres of land.

Winter pleaded not guilty, and C. A. Abercrombie, as landlord, came in and answered, claiming 157 acres of the land sued for, as the homestead of himself and family.

Plaintiff amended, setting out its title, and alleging fraud in the defendant, Abercrombie, in so designating the boundaries of his homestead as to deprive plaintiff of its right in the land sued for and vested prior to such designation. Plaintiff also asked that a title bond of Abercrombie, owned by plaintiff, for 100 acres of the land, be specifically enforced, and that the land so claimed by the defendant in his answer be protected against defendant in his designation of homestead boundaries.

Mrs. Melinda Abercrombie, wife of defendant, also intervened, resisting the enforcement of the husband's bond for said 100 acres, because it included part of her homestead and was not executed by her.

The material facts of the case are as follows:

C. A. Abercrombie was the owner in fee of 1,370 acres of land, composed of five adjoining tracts, to wit, the Goodrich survey of 480 acres, the Sam Houston survey of 200 acres, the Palmer survey of 320 acres, the McGary survey of 320 acres, and 50 acres of the Shepherd survey, situate as shown by the following map.

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

Prior to 1860 and up to the close of the war, Abercrombie had in cultivation of these lands about four hundred acres, composed of about one-half the Goodrich tract, part of the McGary and Shepherd tracts, and about twenty-five or thirty acres on the Palmer tract. His fence was on the Palmer tract, about eighty yards north of the dividing line between that and the McGary tract. Before the war he had in cultivation a few acres of the Palmer tract, which is the one in controversy, but this has not been under fence or in cultivation since the close of the war. This plantation was and yet is occupied by appellee, his dwelling and servants' houses being on the Sam Houston tract; his tan yard, ginhouse, stables, cribs, and horse lot being on the Goodrich tract, as represented on diagram.

In December, 1860, the husband mortgaged all of these lands, except the Palmer tract, to McGary, to secure the payment of a debt to him, and intended to include the Palmer tract, and thought it was included until shortly before appellant purchased at a sheriff's sale. This mortgage debt has not been paid, nor the mortgage foreclosed, and appellee admits that he and McGary were friendly, and that it has always been understood, and McGary has always said, that appellee should not be disturbed in the use of the mortgaged lands as a homestead, but should have a homestead on them as long as appellee lives.

In 1865 a judgment was rendered in the District Court of Walker county against appellee and others for several hundred dollars in favor of one Edwards, which was recorded in October, 1866, and remained unsatisfied until the Palmer tract was sold under it, in March, 1872, when appellant became the purchaser.

In July, 1871, and while appellee was yet under the impression that the Palmer tract was included in the McGary mortgage, and with a view to secure the construction and early completion of a section of the Huntsville Branch Railway and its junction with appellant's road at a particular point on the Palmer tract of land, appellee made and delivered to the Huntsville Branch Railway Company his title bond for one hundred acres of land on appellant's road at the point where the same crosses the Cold-Springs road. This was part of the Palmer tract. The title bond purports to be a bonus and inducement to secure the connection of this road by a specified time at the point therein designated, and is conditioned that the Huntsville Branch Railway Company “would construct, build, and put into successful operation, for transportation of freight and passengers by steam car by the time therein mentioned, a railroad from some point on and connecting with said Houston and Great Northern Railroad to a point for and as a depot within three-fourths of a mile of the court house at Huntsville; said road to be located, built, and operated in all respects within the intent and meaning of the charter of said Huntsville Branch Railway Company;” supposing the land was included in the McGary mortgage, the donation was made “subject to the approval of the parties holding the mortgage.”

This portion of the Huntsville Branch Railway was completed within the time specified and in the manner stipulated, and its connections with appellant's road made at the point designated in said title bond, so that all the conditions of the title bond intended to be performed by the Huntsville Branch Railway Company were performed by appellant as contractor for its construction, and by virtue of this contract appellant became the owner of said title bond. The Huntsville Branch Railway was constructed within the first three months of 1872, and after its junction was formed with appellant's road, and it became important to perfect title to the land, McGary refused to join Abercrombie in the conveyance of the one hundred acres named in Abercrombie's title bond, and then, for the first time, it was discovered that the Chance or Palmer tract was not covered by the mortgage, but was subject to the Edwards judgment obtained in 1865. Appellee then tried to purchase this judgment in the name of his wife, but failing in this, and learning that appellant was negotiating for the purchase of it, so as to perfect the title of the land on which it had been induced to create the junction of said roads and erect its depot buildings, he then procured the surveyor and laid out his homestead, as shown in diagram above.

Appellant purchased the judgment and sold the Palmer tract under it and bought it, paying therefor about five or six hundred dollars, with notice of the destination of homestead boundaries by Abercrombie.

The court charged the jury as follows:

“The plaintiff sues defendant for 320 acres of land set out in the petition. The other defendant, Abercrombie, defends Winter's possession, he being only a tenant, and claims that 157 acres of the land in controversy is embraced in his (Abercrombie's) homestead. The intervenor, Mrs. Abercrombie, joins her husband in asserting the homestead claim.” * * * * “The main question, upon the finding of which your verdict depends, is, was or was not the 157 acres of the land in controversy embraced in the homestead of Abercrombie and wife at the time of the sheriff's sale on the execution read in evidence?”

“Our State Constitution provides that ‘the homestead of a family, not to exceed two hundred acres of land, shall not be subject to forced sale for any debts thereafter contracted.’

To constitute a homestead, the family must have a house on the place and reside on it. And where a family resides on the place the homestead right attaches, and the limit allowed to a country homestead is fixed by quantity not to exceed 200 acres. When a homestead is designated, it cannot be sold to satisfy the claims or liens of creditors except where the purchase-money remains unpaid. But a party having a homestead is not permitted under this exemption to fraudulently remove his former homestead and fix his residence on a portion of his lands upon which there is a lien or mortgage. Nor has he a right to change his homestead boundaries so as to include a portion of land which he has induced by his acts and conduct another party to purchase or incur on account of it losses or liabilities, under the belief that such portion would not be claimed under the exemption. He has however the right to change in good faith his homestead so as to include more valuable lands, provided that it still embraces his residence and the lands are adjoining or used for purposes connected with family uses. If then in this case, after a careful and impartial consideration of the facts and circumstances in evidence, you believe that Abercrombie, having a homestead of 200 acres, including his residence, and not including any part of the land in controversy, did by his acts or conduct induce the plaintiff or its agent to purchase the land in controversy, or to incur damages or losses on account of it, believing that no exemption would be claimed for the same, and after such inducement changed his homestead so as to include any part of the land in controversy, then such change was fraudulent and void as to the plaintiff to the extent of such part, and you will find for the plaintiff. But if upon such consideration of the evidence you believe that no such inducements were made, or if made, were recanted in the presence of plaintiff's agent acting in the matter before any such damage was incurred, and further, that at the time of the sheriff's sale, Abercrombie had, with a view of benefiting himself, and without the intent to defraud the plaintiff, designated his homestead by boundaries which include the 157 acres as claimed by him, then he had the legal right to so designate his homestead, and you will find for the defendant and intervenor.

The fact that Abercrombie's lands were mortgaged to McGary did not prevent him (Abercrombie) from asserting his homestead on the mortgaged lands, because the homestead right was, under the Constitution, superior to the mortgage, and he had a right therefore to claim his homestead of 200 acres of the mortgaged lands. But he still had the right to change his homestead so as to exclude a portion of his old fields and include more valuable timbered or other lands, provided he so changed it without fraud against the plaintiff and before the sale under which pla...