Speer & Goodnight v. Sykes

• Decision Date: 12 May 1909
• Citation: 119 S.W. 86
• Parties: SPEER & GOODNIGHT v. SYKES.
• Court: Texas Supreme Court

119 S.W. 86

SPEER & GOODNIGHT v. SYKES.

Supreme Court of Texas.

May 12, 1909.

Error from Court of Civil Appeals of Sixth Supreme Judicial District.

Action by Speer & Goodnight against J. D. Sykes to recover possession of land. From a judgment of the Court of Civil Appeals (112 S. W. 422), reversing a judgment for plaintiffs, plaintiffs bring error. Judgment remanding the case on reversal set aside, and judgment rendered for defendant, with directions on remand.

Barnwell & Eberhart, for plaintiffs in error. Hart & Hart, for defendant in error.

BROWN, J.

J. D. Sykes and Sallie Sykes were husband and wife, having minor children. In 1903 they lived upon and owned the land in controversy, being 160 acres in Upshur county, which they claimed as their homestead, and which was their community property. On the 3d day of April, 1903, Sallie Sykes filed in the district court of Upshur county a suit against her husband, J. D. Sykes, for divorce and for the custody of the children. She also claimed one-half of the land upon which they resided and the possession and use of the whole for the support of the children. She also sought to recover from her husband damages for an assault made upon her during their marriage. Upon a trial before the judge judgment was entered granting to the plaintiff a divorce and the custody of their children, decreeing to her title to one-half of the land and the right to the possession, use and control of the entire tract during the minority of the children. The court also gave judgment in her favor for the sum of $500 on account of the personal injury inflicted upon her by her husband during their marriage. It appeared in the judgment that this sum was for and on account of the assault made during the marriage. J. D. Sykes was living with his children upon the land when the judgment was rendered, and, soon thereafter, a writ of possession was issued out of the district court, by virtue of which the sheriff put J. D. Sykes out of possession, and placed his wife in possession of the entire tract of land. J. D. Sykes took the children with him when he left the place, and settled upon another tract of land a short distance from his home, where he remained, keeping house and his children living with him until he removed again upon this property. The next day after the sheriff gave possession of the land to Mrs. Sykes an execution was issued on the judgment of the district court for $500 damages, and for $40.95 costs of the suit. The sheriff levied the execution upon the interest of J. D. Sykes in the 160 acres of land, and sold it in regular manner, at which sale Mrs. Sykes became the purchaser for $300. Within a few months after she purchased the land Mrs. Sykes sold the entire tract to the plaintiffs in error for $1,000. When she sold the land to the plaintiffs in error, J. D. Sykes with his children moved back upon the land, claiming one-half of it as his homestead. It appears that J. D. Sykes had kept and supported the children during all the time from the date of the divorce down to the time when this suit was commenced, and has at all times had them with him as a part of his family. It does not appear that Mrs. Sykes ever made any effort to get possession of the children. The plaintiffs in error instituted this suit against J. D. Sykes for the possession of the entire tract of land. Sykes disclaimed as to one-half, and claimed the other undivided half as his homestead. The case was tried before the court without a jury, and judgment rendered in favor of the plaintiffs in error. From this judgment Sykes appealed, and the Court of Civil Appeals reversed the judgment of the district court, holding that a half interest in the land was the homestead of Sykes during all the time, and that it was not the subject of sale under the execution issued...