Stewart v. Mackey

• Citation: 16 Tex. 56
• Parties: THOMAS C. STEWART AND ANOTHER v. JOHN MACKEY.
• Decision Date: 01 January 1856
• Court: Supreme Court of Texas

16 Tex. 56

THOMAS C. STEWART AND ANOTHER

v.JOHN MACKEY.

Supreme Court of Texas.

1856.

Where the husband and wife united in the mortgage of their homestead, and afterwards removed and acquired another homestead, in an action to foreclose the mortgage, the court said it was not different from a mortgage by the husband alone, and that the constitution does not inhibit a mortgage of the homestead by the husband, subject to the contingency that the homestead may not be changed, or that the wife may not assent, and that in the meantime the claim may be barred by the statute of limitations, etc.; and it was held that the mortgage be foreclosed.

Where there was an agreed statement of facts, on an issue of foreclosure of a mortgage, to the effect “that about two years ago Mackey (the defendant) ceased to occupy said property as a homestead, and has since occupied the place he now resides at as a homestead, which is different from the property mortgaged,” it was considered, as between the husband and mortgagee, that there had been a change of the homestead, the court remarking that no question was made as to the rights of the wife, none being set up for her by the record.

Appeal from Colorado.

G. W. Smith, for appellant. The doctrine settled in the case of Lee v. Kingsbury, 13 Tex. 68, is thought not to be applicable to this case. That was a suit to attack a judgment collaterally, which had been rendered, and to which no objection had been made in limine.

There was no proof introduced in the court below to show that Mackey was the owner of the premises he removed to; and for aught this court can see or know, he may have held them as a tenant and induced his wife to remove from the ____ homestead contrary to her wish.

G. Quinan, for appellee, cited Lee v. Kingsbury, 13 Tex. 68.

HEMPHILL, CH. J.

This was a suit on a promissory note, and for the foreclosure of a mortgage. There was judgment for the amount due on the note, but an order for foreclosure was refused, and this has been assigned as error. The facts of the case, as agreed upon by counsel, so far as they affect the question of foreclosure, are to the effect that on the 29th of May, 1851, at the time the note bears date, John Mackey, the defendant, and his wife, executed in due form a mortgage on the property described in the petition; that Mackey was, at the time of making the said mortgage, the head of a family, and occupied the property embraced in the mortgage, as a homestead, at that time; that the property was worth eighteen hundred dollars; that about two years ago Mackey ceased to occupy said property as a homestead, and has since occupied the place he now resides at as a homestead, which is...