Moore v. Whitis

• Decision Date: 31 October 1867
• Citation: 30 Tex. 440
• Court: Texas Supreme Court
• Parties: C. W. & J. T. MOORE v. C. W. WHITIS, ADM'R.

30 Tex. 440

C. W. & J. T. MOORE

v.C. W. WHITIS, ADM'R.

Supreme Court of Texas.

October, 1867.

Where the mortgagor resided upon the same lot upon which his storehouse, in which he conducted the mercantile business, was situated, the whole was his homestead, and exempt from foreclosure of the mortgage and forced sale, under the 22d section of the VIIth article of the constitution of 1845. Pas. Dig. p. 65, art. VII, sec. 22, note 198.

The cases of Hancock v. Morgan, 17 Tex. 582, affirmed by Prior v. Stone, 19 Tex, 371, and Sossaman v. Powell, 21 Tex. 664, are approved, and they are decisive of this case. Pas. Dig. note 198; 17 Tex. 582;19 Tex. 371;21 Tex. 664.

APPEAL from Caldwell. The case was tried before Hon. JOHN IRELAND, one of the district judges.

This was a case that originated in the county court of Caldwell county, by the appellants, against C. W. Whitis, administrator of Thomas Catton, deceased, and Esther Catton, the widow of Thomas Catton, intervenor.

Petition filed 5th May, 1866. The appellants allege, that on the 19th February, 1860, Thomas Catton, deceased, executed to them a note for $917.45, due eleven months after date; that on the 7th day of February, 1861, Thomas Catton executed to them a mortgage upon part of a lot and storehouse in the town of Prairie Lea, to secure the payment of the note, and that the note and mortgage, with the proper affidavit, were presented to the defendant, C. W. Whitis, administrator of Thomas Catton, and accepted by him; that on the 13th day of February, 1866, said note, mortgage, affidavit, and acceptance, were presented te the county judge for approval; that the same were, by an order entered upon. the minutes of said court, approved, and debt established as valid claire against said estate, and prayed for the foreclosure of the lien, order of sale of house and lot, and that the proceeds be ordered te be paid on the debt.

On the 28th day of May, 1866, Esther Catton filed her petition for intervention, and alleged that the storehouse and lot described in the appellants' mortgage was, at the date of the mortgage, the date of the death of Thomas Catton, and at the date of filing her petition (28th May, 1866), the homestead of her and her children; that she had never assented to the sale or mortgage of it; that the appellants' mortgage and lien upon the storehouse and lot, under the constitution and laws of the state, are void; and that at the January term, 1862, the probate court set it apart as a part of the homestead, and prayed that the appellants' petition for an order of sale to satisfy the debt might be overruled.

At the May term, 1866, of the county court, that court refused to order the sale of the storehouse and lot to pay appellants' debt, and decreed that said Esther Catton be, and she is hereby, quieted in her right and possession of said property, and the appellants appealed to district court.

In the court below a jury was waived and cause submitted to the court. After hearing the evidence, the court dismissed the appellants' petition, gave judgment against them for costs and decreed the storehouse and lot to the intervenor for herself and children, and from that judgment and decree the appellants appealed.

It was agreed that Thomas Catton, on the 7th February, 1861, was indebted to appellants $917.45, by note dated 19th February, 1860; that, on the 7th February, 1861, Thomas Catton executed a mortgage upon the storehouse and lot in controversy to appellants, to secure the payment of that note; that it had been duly acknowledged and recorded in Caldwell county, in February, 1861; that the note and mortgage were duly proven on the 20th of January, 1866, and accepted by C. W. Whitis, as administrator, 25th January, 1866, and approved by the chief justice 13th February, 1866; and that the county court rendered judgment, refusing appellants a foreclosure of said mortgage and sale of the house and lot; and there appellant...