McDonald v. Campbell

• Decision Date: 16 October 1882
• Docket Number: Case No. 3481.
• Citation: 57 Tex. 614
• Parties: W. H. MCDONALD v. ALEX. CAMPBELL.
• Court: Texas Supreme Court

57 Tex. 614

W. H. MCDONALD

v.ALEX. CAMPBELL.

Case No. 3481.

Supreme Court of Texas.

Oct. 16, 1882.

APPEAL from Hill. Tried below before the Hon. D. M. Prendergast.

The opinion states the case.

Jo. Abbott, for appellant.

WALKER, P. J. COM. APP.

This is a suit brought by McDonald against the appellee, Alexander Campbell, to recover a house and lot in the town of Hillsboro, purchased by him under a sheriff's sale made to satisfy an execution against Campbell which had been levied on the property in question. The defendant claimed it as a part of his homestead, and claimed also that it was the separate property of his wife, and not subject to be sold to satisfy the execution in question, the same being issued upon a judgment against himself alone, and not against his wife. Notice of his claim of homestead exemption, and of the claim of ownership by his wife, was given at the sale. Verdict for defendant, and judgment accordingly.

The assignment of errors is general and vague; yet it sufficiently raises the only questions which, probably, the appellant desired to have considered on his appeal. There are four grounds of error assigned; the first three of them relate to the law of the case as it was given, and as it was refused to be given; the fourth applies mainly to the question whether the verdict of the jury is supported by the evidence.

We do not find in the charge of the court, nor in the refusal to give the instructions asked, any substantial error for which the judgment ought to be reversed. The district judge presented to the jury a correct exposition of the law of homestead under the constitution of 1876, and also of the law of separate property of the wife, so far as a charge upon either was required under the evidence in the case.

The instructions which were refused to be given contravened propositions of law contained in the charge of the court, on the one hand, or else, on the other, they contained but repetitions of the law as given by the court, without the addition of further unobjectionable legal propositions. We shall not discuss, therefore, any one of the grounds assigned as error relating to the instructions refused, nor to the law as given in the charge, except as it may be incidentally necessary to do so in considering the fourth and last ground of error.

In respect to the question of homestead, it was confined under the charge of the court, in effect, to the issue of fact as to whether or not the house and lot, under the facts of the case, came within the constitutional requirement which exacts that the lot or lots which are entitled to be exempted “shall be used as a place to exercise the calling or business” of the defendant.

Section 51 of article XVI of the constitution of 1876 provides that “the homestead in a city, town or village shall consist of lot or lots, not to exceed in value $5,000 at the time of their designation as the homestead, without reference to the value of any improvements thereon; provided, that the same shall be used for the purposes of a home, or as a place to exercise the calling or business of the head of the family.”

The proof showed that Campbell owned two acres of ground, upon which his dwelling and out-houses were situated; that he owned about fourteen acres of cultivated land within the corporate limits of Hillsboro, but not connected with the homestead lot; that he owned on the public square, and not connected with the dwelling lots, one dry goods storehouse, which he rented out at $25 per month; that adjoining this storehouse was his drug store, where he carried on the business of a druggist; that adjoining the drug store was another house, which he rented out as a saddle shop. By the side of this saddle shop was a house and lot owned and occupied by another person, and which was...