Russell and Wife v. Nall

*62 WILLIAMS, Associate Justice. Appellee sued appellants, in trespass to try title, for the land in controversy. Judgment was rendered in the District Court in appellee’s favor for the land, and cancelling a deed from T= J. Russell to his wife, under which they defended. Appellee showed title as follows: Judgment in his favor against Russell for $1192.25, dated May, 1890, affirmed by Supreme Court February 24, 1891; abstract thereof duly registered, February 26, 1891; execution March 14, 1891; sale April 7, 1891, of the land in controversy, and purchase thereat by himself, and deed to him by the sheriff. Mrs. Russell asserted title under a deed from her husband of date February 9, 1891, which was not filed for record until March 9, 1891. Appellants claimed, also, that the land was their homestead at the time of the recording of the abstract, the levy of the execution, and the sale thereunder. Appellee, at the time his abstract was filed, and when the execution was levied, had no notice of the deed from Russell to his wife, but received notice before the sale. He also attacked the deed from Russell to his wife, on the ground that it was made with the intent to hinder, delay, and defraud Russell’s creditors. The facts in regard to the claim of homestead, as found by the district judge, and shown by the evidence, are as follows: Russell and his first wife, up to 1873, occupied the land as their homestead. They were then divorced, and Russell continued to live on the place until he married his present wife, in December, 1883. She refused to' live there, and neither of them have since done so, though they have gotten some firewood, vegetables, fruits, and the like, from their tenants on the place, which they used for family purposes. The land lies three miles from Beaumont. In 1890 Russell bought lots 15 and 16, in block 4 of the Calder addition to Beaumont, after the same had been cut up into blocks, lots, streets, etc., and a map thereof placed of record. His lots front on Calder Avenue, and he immediately built and occupied, with his wife, his residence on these two lots, and was so living upon and occupying them at the time of this trial in the District Court. He paid for the lots, but there is a lien upon them for balance due for improvements. There were houses north, east, south, and west of him, and lots in the Calder addition were then worth from $250 to $600, the defendant paying $625 for his. A part of this Calder addition runs up to the Crosby Hotel, the chief hotel in the city, though the addition itself lies just outside the corporate limits. The town was incorporated in 1881. The superintendent of the city public schools lives across the street from defendants. Russell is a practicing lawyer and keeps an office in Beaumont. The court found, as a fact, that the Calder addition was a part of the town of Beaumont, and that appellants’ homestead was in the town. The court below held, that the lien acquired by appellee from the registration of the abstract and levy of the execution, was superior to thé deed *63 to Mrs. Russell, and held that such deed was made in fraud of creditors and that the land was not homestead, and that therefore appellee was entitled to recover. Many of the assignments of error relate to alleged mistakes made by the trial judge in the statement of facts, and will not be noticed. There are propositions in appellants' brief, seeking to make the point that evidence, offered by appellee, to meet the claim of title asserted under the deed to Mrs. Russell, was not admissible under the pleadings. There was no objection to the evidence when offered in the court below, no motion for new trial, nor exceptions to the findings of the judge, nor was the point in any way called to the attention of the trial court. It is too late to present it for the first time in this court, and it can not be considered. There was no error in sustaining the plaintiff’s exceptions to defendants’ answer, alleging that the plaintiff had not paid to the sheriff the costs of former suit upon his purchase of the land. The sheriff had made the deed to plaintiff, and whether or not he had paid the costs was an inquiry which could not affect the issues involved in this suit. It was shown at the trial that he did pay the costs and had the balance of his bid credited on the execution. It was competent for plaintiff to inquire into the consideration of the prior deed from Russell to his wife for another tract of land, for the purpose of showing that thereby the alleged debt which formed the consideration of the deed in question had been paid, wholly or partially, as well as to develop facts pertinent to the question of fraud. It is too well settled to require citation of authority, that a judgment creditor who acquires a lien on land, through registration of an abstract or levy of an execution, acquires a right superior to that of the grantee in a prior unrecorded deed from his debtor, of which such creditor has no notice. It follows, that under the evidence in the case, unless appellants sustained their claim that the land was their homestead, no judgment was proper but that which was rendered. As to such claim, the evidence amply sustains the finding of the court below, that they had abandoned the rural homestead and acquired another in a town or city. They could not hold both, and the land in controversy was therefore subject. This renders it unnecessary to pass upon the other questions raised in appellants’ brief as to the sufficiency of the evidence to sustain the conclusions of the lower court upon other points. Whether such findings were correct or not, the evidence in the particulars we have indicated sustains the judgment, and it is therefore affirmed. Affirmed. Delivered December 15, 1892.