Lee v. Welborne

• Decision Date: 19 October 1888
• Citation: 9 S.W. 471
• Parties: LEE <I>et al.</I> <I>v.</I> WELBORNE.
• Court: Texas Supreme Court

9 S.W. 471

LEE et al.v.

WELBORNE.

Supreme Court of Texas.

October 19, 1888.

Appeal from district court, Upshur county; F. J. McCORD, Judge.

H. McKay, J. S. Barnwell, and J. L. Camp, Jr., for appellants. Peteet & Crosby, for appellee.

WALKER, J.

September 13, 1886, Lee, a constable, having an execution against Welborne for $197, under express orders from Barnwell, the plaintiff in execution, levied upon a grist-mill, gin-stand, shafting, and belting, 20 acres of new ground cotton, cultivated by Welborne, and upon his interest in all his tenants' crops upon about 40 acres cultivated by them. Within less than a week from the levy the 20-acre crop was released. The constable sold the property, realizing upon the mill, gin, and fixtures $93, and upon the cotton $137. It is claimed that the land was the homestead of Welborne, and he brought suit against Lee and Barnwell, the appellants, for damages. A verdict was rendered for plaintiff for $200 actual damages. Exemplary damages were claimed, and the matter submitted to the jury, but only actual damages were found in the verdict. This appeal is by defendants, and numerous errors are assigned. The charge correctly defines the homestead rights of the plaintiff, save that the growing crops ungathered, raised by the tenants, in which the landlord has a rental interest, are held liable to execution. Under this ruling the entire cotton crop seized would be excluded from the case, save only as to any damage from the seizure of the 20 acres, and that had been released. The court charged: "If any part of the individual crop of plaintiff growing on the land, a part of the homestead, was seized and taken by the defendants, the plaintiff would be entitled to recover the reasonable value of said growing cotton at the time and place of levy, with eight per cent. interest from that date." It is urged that to give this was error under the testimony, because "the individual crop" had been released from the levy within a few days, and there was no evidence of any appreciable injury done by the seizure. The court, in submitting the final issues upon the damages to be ascertained, charged: "Under the above rules you will ascertain if the gin and grist-mill were subject to levy; then compute the value and interest, as before instructed; also what cotton, if any, was growing on plaintiff's homestead, and award to plaintiff the value and interest of that; also what was the value of any of the growing crop that was injured by stock while in Lee's custody, with interest; add all together, and award to plaintiff as actual damages." It is urged by appellants that these issues should not have been submitted, for that there was no testimony to the taking and appropriation of any of the "individual crop" of the plaintiff; nor was there any testimony to the amount of damages, if any, sustained to that crop during the few days intervening between the levy and its release. All these objections are well taken, and would require a reversal if it could be ascertained that the defendants suffered any injury by the matters of complaint....