Jenkins v. Volz

• Decision Date: 09 April 1881
• Docket Number: Case No. 4059.
• Citation: Jenkins v. Volz, 54 Tex. 636 (Tex. 1881)
• Parties: E. B. AND E. J. JENKINS v. C. VOLZ.
• Court: Texas Supreme Court

54 Tex. 636

E. B. AND E. J. JENKINS

v.C. VOLZ.

Case No. 4059.

Supreme Court of Texas.

Apr. 9, 1881.

APPEAL from Cooke.Tried below before the Hon. J. A. Carroll.

C. Volz brought suit against J. W. Jenkins and John W. Biffle, to recover of them the sum of $1,669.80, alleged to be due him on two promissory notes executed to him by Jenkins and Biffle, and against E. B. and E. J. Jenkins, to foreclose a mortgage on three hundred and twelve acres of land, the same being an undivided interest in a tract of five hundred and twenty acres out of a six hundred and forty acre survey in Cooke county, in the name of R. E. Shannon, which mortgage appellee alleged was executed to him by E. B. and E. J. Jenkins to secure the payment of the two notes due from J. W. Jenkins and John W. Biffle.

At the August term, 1879, of the court, the appellee recovered a judgment against J. W. Jenkins and John W. Biffle for the debt, and against E. B. and E. J. Jenkins foreclosing the mortgage on the land, and ordering the sale of the same to pay the judgment.From this judgment E. B. and E. J. Jenkins appealed.

Jenkins and wife in their answer alleged that the land was their homestead; that E. B. Jenkins was the head of a family, and E. J. Jenkins was his wife; that the land was their homestead at the time the mortgage was given, and had ever since remained such.They alleged the occupancy and improvement of the land by them, and that such facts were well known to appellee at the time the mortgage was given.They stated that the reason why they did not describe their homestead by metes and bounds was, that they only owned an undivided interest in the whole five hundred and twenty acres, and setting forth who their co-tenants were; alleged that they could not with safety designate any portion of the land as their own on account of the rights of their co-tenants.The appellee excepted upon the ground that appellants had failed to set forth and describe their homestead interest in the land so that the court could protect the same.The court below sustained the exception, and struck out that part of appellants' answer which related to their homestead, to which appellants excepted.

C. C. & C. L. Potter and Hale & Scott, for appellant.

Davis & Garnett, for appellee.

I.The homestead of appellants which was exempted from forced sale was not an undivided interest of two hundred acres of land in the Robert E. Shannon six hundred and forty acre survey, but was merely their interest in and to the two hundred acres of said survey upon which their house and improvements were situated, and they should have set forth the metes and bounds of said two hundred acres in their pleadings, so that the court could have protected the same in its judgment.Battle v. John, 49 Tex., 211;Lacey v. Clements, 51 Tex., 150;Freeman on Co-tenancy, secs. 242, 243.

II.The exemption laws merely protect, as against the creditor, the homestead claimant in his title to and possession of the two hundred acres of land upon which his home and improvements are situated, regardless of the title of the possessor thereto, which title may be in fee, for life, for a term of years, in severalty, in common, or no title at all.Freeman on Co-tenancy, sec. 55;Thompson on Homesteads, secs. 164-178.

GOULD, ASSOCIATE JUSTICE.

The homestead of appellants was protected by the constitution, although...