Smith v. Chenault

• Decision Date: 01 January 1878
• Citation: 48 Tex. 455
• Parties: E. M. SMITH ET AL. v. JULIA CHENAULT, ADM'X.
• Court: Texas Supreme Court

48 Tex. 455

E. M. SMITH ET AL.

v.JULIA CHENAULT, ADM'X.

Supreme Court of Texas.

1878.

APPEAL from Jefferson. Tried below before the Hon. W. Chambers.

In 1866, A. T. Chenault conveyed a tract of 160 acres of land, on which was an old mill, to E. M. Smith and Hugh F. Young. After the purchase, Smith and Young became partners in the lumber business, and erected on said tract the necessary mills and machinery for said business.

In 1868 or 1869, E. M. Smith moved upon the land, and occupied it thereafter as a homestead.

May 2, 1870, a judgment was rendered in the District Court of Orange county, a copy of which is as follows:

+---------------------------------------------+
                ¦“A. T. CHENAULT & CO.¦)¦                     ¦
                +---------------------+-+---------------------¦
                ¦v.                   ¦)¦No. 239. May 2, 1870.¦
                +---------------------+-+---------------------¦
                ¦SMITH & YOUNG.       ¦)¦                     ¦
                +---------------------------------------------+
                

On this day, came the parties, by their attorneys, and thereupon came a jury of good and lawful men, who, being duly impanelled and sworn, well and truly to try the issue joined between the parties, upon their oaths do say, that they find for the plaintiffs, and assess their damages at the sum of six hundred and eighty-nine dollars and ninety cents ($689.90). It is therefore considered by the court, that said plaintiffs do have and recover of the said defendants the sum of six hundred and eighty-nine dollars and ninety cents, with interest thereon, at the rate of eight per cent. per annum, together with all costs in this behalf expended; for which let execution issue.”

Upon this judgment, execution issued 16th of May, 1870. The execution, after the proper style and direction, proceeds: “Whereas, A. T. Chenault and John O. McGhee, on the 2d of May, A. D. 1870, in the District Court of Orange county, recovered a judgment against Elial M. Smith and Hugh F. Young for the sum of $689.90, debt,” &c.

This execution was levied on the undivided interest of Young in said tract of land, mills, machinery, and other improvements, and on October 6, 1870, Chenault, under said levy, &c., became the purchaser.

There were other proceedings affecting the ownership of the Young undivided interest. It was sold under another execution, and bid in by N. A. Young, son of defendant Hugh F. Young, and reconveyed to his father by said N. A. Young; and by deed of trust of Hugh F. Young and wife to J. C. Smith, trustee, and by him to Black, son-in-law of E. M. Smith. Black also put up some machinery upon the land.

November 20, 1870, A. T. Chenault brought suit, in the District Court of Orange county, against Elial M. Smith, his wife, Harriet S. Smith, J. C. Smith, S. R. Smith, and W. H. Black, for the undivided half interest in said tract of land, and for an additional interest in machinery, &c.; the petition asserting that the E. M. Smith interest had been purchased by one Henry M. Deschaumes, and was by him held.

E. M. Smith and Harriet E. Smith claimed the land as their homestead. They attacked the sale of the land under the execution sale made October 6, 1870, in case of A. T. Chenault & Co. v. Smith & Young, as a nullity, and fraudulently made, in selling about $5,000 in value for $100, bid at the sale. The venue was changed to Jefferson county.

The plaintiff recovered judgment for the land sued for. Smith and wife perfected an appeal. The case, so far as necessary to the understanding of it, is further given in the opinion.

Opinion was rendered January 30, 1877.

[No briefs for appellants have reached the reporters.]

Spencer & Stewart, for appellees.--A homestead cannot be asserted in co-partnership property. (Elias v. Verdugo, 27 Cal., 418;Giblin v. Jordan, 6 Cal., 416;Kellersberger v. Kopp, 6 Cal., 564;Reynolds v. Pixley, 6 Cal., 166;Wolf & Davis v. Fleischacker, 5 Cal., 244;West v. Ward, 26 Wis., 580;Thurston v. Maddocks, 6 Allen, 428.)

The judgment was sufficient to support the execution sale. (Hays v. Yarborough, 21 Tex., 488;Luter v. Rose, 16 Tex., 53;Alexander v. Miller, 18 Tex., 897.)

MOORE, ASSOCIATE JUSTICE.

This suit was brought by A. T. Chenault, appellee's intestate, against Elial M. Smith and his wife, Harriet E. Smith, the appellants Hugh F. Young, J. C. Smith, S. R. Smith, and William H. Black, for the recovery of an undivided half of a tract of 160 acres of land, known as the Empire Mill tract, with the improvements thereon, consisting of houses, mill-houses, a steam saw-mill, two boilers, one engine, one shingle-machine mill and fixtures, levied upon and sold as the property of the defendant Young, under execution on a judgment against the firm of Smith & Young; and also for the undivided half interest of the defendant Elial M. Smith in a shingle-machine mill, the engine attached thereto, &c., said Smith's interest in all of said property, except that last named, as alleged by the plaintiff, having been sold by the sheriff under an individual judgment against him, and purchased by one Deschaumes, previous to the levy and sale on the execution under and by virtue of which the plaintiff claims to have acquired his title.

The defendants, Elial M. Smith and wife, Harriet E. Smith, in their answers, allege that said 160 acres of land was purchased by said Elial M. Smith and the defendant Young, as partners, with the view of erecting thereon mills and machinery for the manufacture and sale of lumber; that said Young desired Smith to superintend the erection and construction of said mills and machinery, and the running and operating of the same after their erection, and in consideration of said Smith doing this, said Young agreed that he should have said 160 acres of land for his homestead; and that shortly after the purchase of said land, he, said Smith, with the consent of Young, moved upon said land, and designated it as his homestead, and from that time hitherto had occupied and resided upon it, with the consent of said Young, as his homestead; that he had fully performed his agreement and undertaking with said Young, to superintend the erecting and running of said mill, &c.; and that said land was, at the time of the levy and sale under which the plaintiff claims to have purchased, the homestead of himself and family.

The original plaintiff dying before judgment, the appellee, Julia Chenault, was allowed by the court to make herself a party, and prosecute the suit as his administratrix.

On the trial, apart from the objections made to the plaintiff's title, and evidence relied upon in its support, the appellants, Smith and wife, rested their entire defense upon the??ir claim, that the property sued for was a part of their homestead; and as none of the other defendants have perfected their appeal, or are here complaining of the judgment, it is therefore only necessary for us to consider such of the rulings of the court assigned as error as call in question appellee's...