Meyer v. Paxton
| Decision Date | 17 October 1890 |
| Citation | 14 S.W. 568 |
| Parties | MEYER v. PAXTON <I>et ux.</I> |
| Court | Texas Supreme Court |
Appeal from district court, Shelby county; JAMES I. PERKINS, Judge.
T. C. Davis, for appellant. E. B. Wheeler and Drury Field, for appellees.
This case was before this court at a former term, and the opinion is reported in 67 Tex. 96, 2 S. W. Rep. 817. After the case was remanded, the defendants filed a pleading which they denominated the second supplemental answer, to which an exception was sustained. The correctness of the court's action in that particular is now before us for consideration. The suit is an action of trespass to try title, and the original petition contained, in addition to the ordinary allegations appropriate to that action when brought in the statutory form, averments alleging title in the plaintiffs by the statute of limitations. The defendants in their amended original answer disclaimed as to all the land except a tract of 204 acres, and as to that pleaded not guilty, and pleaded the statutes of limitations, and specially that he acquired title to the land by a deed made to him on the 6th day of August, 1862, by one John B. Freeland, the original grantee from the state. In reply, the plaintiffs alleged that, before the conveyance from Freeland to defendant, one Weaver, under whom they claim, had brought suit against Freeland to recover a debt, and had caused the land to be attached; that in such suit Weaver subsequently recovered a judgment foreclosing the attachment lien, and that Freeland having died, his administrator, in pursuance of an order of the district court sitting in probate, had sold the land in satisfaction of the attachment lien and had conveyed it to Weaver, who became the purchaser at that sale. They also averred that the plaintiff Mrs. Paxton was one of the heirs of Weaver, and that all the other heirs had conveyed their interest in the land to her co-plaintiff, W. G. Paxton. In reply to these allegations, the defendant filed a supplemental answer, in which he averred that, at the time of the levy of the attachment, the land in controversy was the homestead of John B. Freeland and his wife, and so continued to be their homestead until they conveyed the same to defendant, as previously alleged. It was to this answer that the exception was sustained, and we are of opinion that there was error in the ruling of the court.
If the land in controversy was the homestead of Freeland at the time the attachment was levied upon it, the levy was a...
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