Linch v. Broad

• Decision Date: 17 January 1888
• Citation: 6 S.W. 751
• Parties: LINCH <I>et al.</I> v. BROAD <I>et al.</I>
• Court: Texas Supreme Court

6 S.W. 751

LINCH et al. v. BROAD et al.

Supreme Court of Texas.

January 17, 1888.

Commissioners' decision. Appeal from district court, Lamar county; A. M. TAYLOR, Judge.

In 1859, J. W. Broad owned and was doing business on lot 3, in block 4, on the public square, in the town of Paris, in Lamar county. In that year he married appellant M. F. Linch, and established their homestead on lots 5, 6, 7, and 8, in the same block. J. W. Broad died in 1877, leaving his widow, now M. F. Linch, and five children, surviving. At the time of his death he owned all of block 4, except two tenements on the south-east corner of the block owned by the Paris Exchange Bank and S. E. Clements. The improvements upon that portion of block 4, owned by Broad at the time of his death, consisted of the residence, six brick store-houses fronting on the public square, and three frame store-houses fronting on North Main street. In July, 1877, the county court of Lamar county made an order setting apart to the widow, M. F. Broad, and the children, the residence and nine store-houses as their homestead.

On September 30, 1884, there were two suits pending in the district court of Lamar county by appellees against appellants, which were on that day consolidated by order of the court on motion of appellees. One of these suits was for rent, and for partition of the property in controversy, and the other a petition for certiorari to correct and revise the order of the county court in setting apart the property as a homestead. The widow Broad had married F. S. Linch, who was also made defendant in these suits. The writ of certiorari had been awarded, issued, and served, and certified transcript duly sent up by the clerk of the county court in obedience to the writ. After the consolidation, appellees filed their amended original petition, alleging that the order of the county court was erroneous and unjust in this: that it sets apart as a homestead property that did not belong to said homestead; that lots 4 and 3, in block 4, and part of lot No. 2 of said block, are included in said order, when, in fact, these lots did not belong to the homestead of J. W. Broad at the time of his death, or prior thereto; that said lots were not used for any homestead purposes; that lots 5, 6, 7, and 8, of block No. 4, were owned and occupied by J. W. Broad and family at his death, and constituted their homestead, and has remained the homestead of his widow and minor children; that defendants are the only parties interested adversely to plaintiff in the order of the county court; that lots 5, 6, 7, and 8, in block 4, had been the homestead of J. W Broad and family since September, 1859, and had always been worth more than the constitutional limit of an urban homestead, and is now worth $20,000; that five of the six brick store-houses, and lots 4, 3, and part of 2 are now rented for $800 per year each, and have been since February, 1877, all of which defendants have collected and appropriated to their own use, and refuse to account to plaintiff for any portion thereof. Prayer that proper homestead be set apart, for partition, and for judgment for just proportion of rents collected.

This suit was brought by the five children of J. W. Broad, three of whom were minors, represented by their legally qualified guardian. Appellants offered no objection to the consolidation of the suits. On the twenty-first day of April, 1885, the defendants Linch and wife filed first amended original answer, as follows, in substance: (1) General demurrer. (2) Special exception, on the ground that the error complained of in the probate court for setting aside all the property in controversy was not sought to be corrected in the probate court; or that any objection was therein made to the order setting aside the homestead to the widow, now Mrs. Linch, and her minor children Jennie, John W., and Thomas J. Broad. (3) Plea in abatement, on the ground that Jennie, John W., and Thomas J. Broad were and now are minors, whose legal guardian is and was Thomas Broad, and that said minors bring this suit in their own names, and not by guardian or next friend; and that the certiorari bond was executed by said minors in person. (4) General denial. (5) Setting up that the property in controversy was community property of John W. Broad, deceased, and his wife, (now Mrs. Linch;) that it was their homestead from the date of their purchase up to the date of John W. Broad's death, and the homestead of Mrs. Linch and her minor children, and her present husband, F. S. Linch, up to the present time, and now so occupied, used, and claimed. They then set up the order of the probate court made in 1877, pending administration on the estate of John W. Broad, deceased, setting aside all the property in controversy to appellant M. F., and her minor children, as a homestead, in which these appellees were parties, represented by their guardian, Thomas Broad, who is still the guardian of said three minors: that no change has been made in said property, or the use thereof, since that time, and no additional improvements have been made thereon; that the minor plaintiffs still reside on said homestead with defendants, and obtain a support therefrom; that the decree of the probate court is still in force; that plaintiffs and their mother have occupied said homestead for many years; that defendants are merchants, and using two of the storehouses on said homestead in carrying on their business. They allege that when said property was first designated and used as a homestead by appellant M. F. Linch, and her then husband, John W. Broad, it was then and has been since that time worth less than the constitutional limit for a homestead, and the same has, ever since the original purchase by John W. Broad, been the homestead of appellee M. F. Linch.

Appellants' demurrer and exceptions were overruled, to which they excepted. The case was tried November 13, 1885, and the court rendered judgment for appellees, revising and correcting the order of the county court, and setting apart lots Nos. 5, 6, 7, and 8, block No. 4, as the homestead to the widow and minor children, as asked by appellees, and ordering that portion of the judgment to be certified to the county court for observance. The decree is also in favor of appellees, and against appellants, for all of lot No. 3, in block No. 4, as the separate property of John W. Broad, deceased, giving to appellant M. F. Linch (née Broad) her life-estate in one-third thereof; also in favor of appellees for an undivided half of the balance of the store-house property, and to appellant M. F. Linch the other half, and decreeing partition accordingly; also in favor of W. A. Broad and Charles I. Broad, the two adult heirs, against appellants, for $7,436.32, their part of the rents collected by appellants on the property not embraced in the homestead, to be satisfied only out of the separate estate of the appellant M. F. Linch, from which judgment both parties gave notice of appeal.

Appellants perfected their appeal, and assigned errors, and appellees also assigned one error.

Appellants insist upon the following assignments of error: "(1) The court, who tried the cause without a jury, erred in deciding that appellees W. A. Broad and Charles I. Broad, the adult heirs of John W. Broad, were entitled to rents for property that had been set apart by the probate court to M. F. Linch, (their mother,) and the minor children of herself and deceased husband, John W. Broad, in 1877, as a homestead, until such order of the probate court was revoked or set aside. (2) The error of the court in deciding that although all the lots in controversy were, in 1859, (the time at which they were designated as a homestead,) worth not more than five thousand dollars, because they are now worth more than that sum, it is an excessive homestead, and the homestead of the family is now confined to lots 5, 6, 7, and 8; because with the improvements thereon, they were, in 1859, worth $2,000, thereby depriving the surviving widow of John W. Broad, and her minor children, of a homestead not exceeding in value the sum of $5,000 at the time of its designation, without regard to improvements thereon. (3) The judgment of the court in overruling defendants' (appellants) general demurrer and special exceptions, and plea in abatement to plaintiffs' (appellees') petition, because of insufficiency thereof, and because it is a collateral attack on the decree of the probate court, without first asking the probate court to correct it, and that the district court has no jurisdiction in the case as it is presented. And because said minors sue in their own name, when they have a guardian, and executed the certiorari bond in their own name. (4) The ruling of the court in giving rents to W. A. and Charles I. Broad,...