Little v. Baker

• Decision Date: 26 April 1889
• Citation: 11 S.W. 549
• Court: Texas Supreme Court
• Parties: LITTLE <I>et ux.</I> <I>v.</I> BAKER <I>et al.</I>

11 S.W. 549

LITTLE et ux.v.

BAKER et al.

Supreme Court of Texas.

April 26, 1889.

Appeal from district court; McLennan county.

Battle & Battle and Anderson, Flint & Anderson, for appellants. Clark, Dyer & Bollinger, for appellees.

HENRY, J.

This is a suit by injunction instituted by appellants, Simeon Little and his wife, Mrs. Maggie Little, by petition filed December 24, 1883, restraining defendants from selling under a deed of trust, dated November 26, 1881, certain premises situate in the city of Waco, McLennan county, Tex., and known as the "Catholic Property;" the same being a portion of the two parcels of land purchased by Simeon Little, one of appellants, from the authorities of the Catholic Church, and fronts 50 feet on Washington street, in said city, and runs back 165 feet along Sixth street. Plaintiffs alleged that on the 26th day of July, 1879, said Simeon Little was seised in fee-simple title of the following parcels of land, all adjoining and situate in the city of Waco, McLennan county, Tex., viz.: First parcel fronts 73 feet on Washington street, and runs back 100 feet off and across what was known as the homestead lot of Mullins and wife; second parcel fronts 50 feet on Washington street, and runs back 100 feet along Sixth street; third parcel fronts 65 feet on Sixth street, and runs perpendicular by back of both of the two first-described parcels. The last two described parcels were purchased from the Rt. Rev. P. Dufal, of the Catholic Church. Plaintiffs first owned and occupied the 73×100 feet lot described as the "Mullins Lot." Subsequently, July 26, 1879, they purchased the two other parcels adjoining and bounding the first on its south-east and north-west sides. When the second purchase was made there was a fence between the first and second above-described lots. There is evidence that in August, 1879, this fence was removed, and the two lots thrown into the same inclosure; that the same year the family wood-pile was on the second-described lot, and that the garden was on the second and third described lots, in the year 1880. All of these facts are disputed by one witness. There is evidence that from the date of purchase of the second and third described lots plaintiffs intended to use and did use them as parts of the homestead. This intention is disputed by one witness, who states declarations of the husband to the contrary. The three lots lie in one body, without a street or alley between them, and are bounded on two sides by Washington and Sixth streets, and on the third side by an alley. Plaintiffs continued to reside on the first-described lot until 1882, when they moved into a house built on the second-described lot, where they continue to reside. On the 26th November, 1881, the husband executed to J. W. Mann & Bro. two promissory notes for $1,105.50 each, due two years after date, with 12 per cent. interest, to pay for the construction and material of the house on the second-described lot, now occupied by him, and on the same date he executed a deed of trust upon said lot to secure the payment of said notes. The notes were transferred by Mann before maturity and for value to Mary S. Heatherly, the appellee, who had no actual notice of the homestead claim. The notes not being paid at their maturity, the trustee named in the deed was proceeding to sell the property according to its directions, when he was restrained from so doing by a writ of injunction, sued out by appellants, on the ground that the property was part of their homestead at the date of the execution of the deed of trust. There was a verdict and judgment in the district court for the recovery of the notes and foreclosure of the lien, from which plaintiffs prosecute this appeal; and assign the following errors: "First. The court erred in the seventh paragraph of the charge to the jury, which paragraph reads as follows: `But the character of a lot with reference to...